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Court of Criminal Appeal 30 April 2007

TRINDALL v R

[2007] NSWCCA 119

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE MULTIPLE OFFENCES 7 CHARGES 7 VICTIMS SEXUAL ASSAULTS

Citation: Trindall v R [2007] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 30 April 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant pleaded guilty in the District Court to 17 offences involving 7 different victims. The offences included multiple counts of aggravated sexual assault, sexual intercourse without consent, detaining for advantage, robbery, and inflicting actual bodily harm with intent to have sexual intercourse. The crimes were committed over a nine-year period between 1995 and 2004.

The sentencing judge initially imposed sentences on 21 April 2006. Because of the large number of offences, the sentencing exercise was complex, and a number of errors emerged in the sentences as recorded. The court reconvened on 24 April 2006 to correct those errors under the slip rule. Even after corrections, some discrepancies remained between the document filed and the judge's stated intentions, though the intended outcome was a non-parole period of 21 years and 6 months and an overall term of 23 years and 6 months.

The appellant sought leave to appeal against the severity of the overall sentence, not challenging any individual sentence but arguing that the combination of concurrent and cumulative terms produced an inappropriate result.

  • Whether the sentencing judge erred by declining to find special circumstances, which would have altered the statutory ratio between the non-parole period and the additional term (the parole period).
  • Whether the parole and non-parole periods as ultimately imposed were appropriate.
  • Whether the sentencing judge properly applied the totality principle, as explained in Pearce v The Queen, when constructing a partly concurrent and partly cumulative sentence structure across 17 offences.

Decision

On the question of special circumstances, the Court found no error. The sentencing judge had deliberately chosen not to increase the parole period, recognising that doing so would have required extending the overall term rather than reducing the non-parole period. McClellan CJ at CL noted that maintaining the statutory ratio in this case would inevitably have produced a longer overall sentence, which would not have benefited the appellant.

On totality, the Court accepted that the sentencing judge had given the issue careful consideration. His Honour had provided a significant degree of concurrency across the 17 sentences precisely to moderate the aggregate result. The Court characterised the concurrency granted as a benefit to the appellant.

The Court emphasised the exceptional seriousness of the offending. The crimes spanned nine years, targeted seven separate victims, and involved gross indignities and physical injuries. Two victims were in an advanced state of pregnancy at the time of the offences. The Court was satisfied that the overall non-parole period and total sentence were appropriate given the objective gravity of the conduct.

Although leave to appeal was granted, the Court unanimously dismissed the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • The suppression order prohibiting publication of the names of the victims was continued.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that declining to find special circumstances is not an error where extending the parole period would have required an increase in the overall sentence rather than a reduction of the non-parole period.
  • Where a sentencing judge imposes 17 offences across 7 victims with partly concurrent and partly cumulative terms, significant concurrency built into the structure can itself represent a meaningful moderation of the overall sentence and a proper application of the totality principle.
  • A modest parole period relative to a lengthy non-parole period does not of itself establish appellable error; the proportionality of the non-parole period to the overall term must be assessed in light of the full sentencing construction and the nature of the offending.
  • Corrections made under the slip rule following a complex sentencing exercise do not automatically give rise to a ground of appeal where the sentencing judge's intentions were clearly stated and the overall outcome remained within an appropriate range.
  • The objective gravity of offending, including its duration, the number of victims, and the nature of the harm inflicted, remains a central consideration when an appellate court assesses whether the totality of a sentence was excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including ss 61I, 61J, 61K(a), 86(1)(b), 86(2)(b), 90A, 94
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Musgrove v R [2007] NSWCCA 21
- R v Gill [2002] NSWCCA 93
- R v Swann [2005] NSWCCA 252
- R v So [2004] NSWCCA 362