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Court of Criminal Appeal 3 October 2013

Trindall v R

[2013] NSWCCA 229

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL WHETHER PRE SENTENCE DETENTION TAKEN INTO ACCOUNT NO MERIT IN EITHER GROUND NO POINT OF PRINCIPLE

Citation: Trindall v R [2013] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 3 October 2013
Judge(s): Emmett JA, R A Hulme J, Bellew J

Background

The applicant was sentenced in the District Court in September 2012 following convictions for three offences of stealing from the person and one offence of aggravated robbery. All offences occurred over a five-day period in March and April 2011 and involved the theft of handbags from women. One incident was particularly serious: the victim fell, sustained injuries, and experienced significant ongoing physical and psychological trauma.

The applicant was 42 years old at the time of the offences and had an extensive criminal history dating back to 1982, including prior convictions for armed robbery. He had been released on parole just five months before the offending and was still serving a parole period when the offences occurred. He is of Aboriginal heritage and has a long-standing heroin addiction, having spent much of his life either using drugs or incarcerated.

The District Court imposed an aggregate sentence of six years' imprisonment with a non-parole period of four years, backdated to 23 July 2012. The applicant sought leave to appeal on two grounds, arguing the sentencing judge had made errors in two respects: failing to properly account for pre-sentence custody, and failing to find special circumstances.

  • Whether the sentencing judge erred by failing to adequately take into account the applicant's pre-sentence custody when fixing the commencement date of the sentence
  • Whether the sentencing judge erred by failing to find special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the applicant's rehabilitation prospects and his early guilty pleas, which would have reduced the proportion of the sentence represented by the non-parole period

Decision

Ground 1: Pre-sentence custody

The applicant argued that the sentencing judge had been given incorrect information, placing the applicant's prior release from custody in October 2011 rather than October 2010. The contention was that this error caused the judge to misunderstand the period of accumulation involved when backdating the sentence. The Court of Criminal Appeal rejected this argument. The sentencing judge's remarks expressly referred to the correct release date of October 2010 and correctly identified the offending period as March to April 2011, demonstrating he was aware of the true position.

The Court also noted that the commencement date of 23 July 2012 was the date the applicant's own solicitor had proposed. Furthermore, the judge had expressly acknowledged during submissions that the arrangement involved an accumulation period of approximately 15 months, so there was no basis for the contention that he had been misled.

Ground 2: Special circumstances

The applicant argued the judge should have found special circumstances to reduce the non-parole period, relying on rehabilitation prospects and early guilty pleas. The Court found no error. The sentencing remarks devoted considerable attention to rehabilitation, and the judge made recommendations for the applicant's inclusion in drug rehabilitation and vocational training programs while in custody.

As for the guilty pleas, the Court noted these were entered in the District Court after committal for trial and were therefore not particularly early. The judge had already given a quantified discount for their utilitarian value. To also reduce the non-parole period on the same basis would have constituted impermissible double counting, consistent with the principle stated in R v Fidow [2004] NSWCCA 172. The Court further observed that the judge had implicitly found special circumstances on the basis of the partial accumulation, with the effective custodial component representing approximately 73 per cent of the total term.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • No error was established in the sentencing judge's treatment of pre-sentence custody where the judge's own remarks demonstrated awareness of the correct factual position, and where the backdating date had been proposed by the applicant's solicitor.
  • Under the principle confirmed in R v Fidow [2004] NSWCCA 172, where a sentencing court has already applied a quantified discount for guilty pleas, it would constitute impermissible double counting to also reduce the non-parole period on the same basis.
  • A finding of special circumstances need not be express; the Court of Criminal Appeal inferred from the structure of the sentence that the District Court had found special circumstances arising from the partial accumulation upon the balance of a parole period.
  • In dismissing both grounds, the Court confirmed that the sentencing discretion had been properly exercised and that neither proposed ground disclosed any merit.
  • The decision contains no point of principle and turned entirely on its own facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 95 (stealing from person; aggravated robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B) (special circumstances)
- Criminal Procedure Act 1986 (NSW), s 166 (related summary offences)

Cases:
- R v Fidow [2004] NSWCCA 172 (double counting of guilty plea discount when adjusting non-parole period)