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Court of Criminal Appeal 8 June 2016

Tregeagle v R

[2016] NSWCCA 106

Assault & violenceFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Tregeagle v R [2016] NSWCCA 106
Court: Court of Criminal Appeal, NSW
Date: 8 June 2016
Judges: Payne JA (primary judgment at [1]); Price J (agreeing at [107]); Garling J (agreeing at [108])

Background

The applicant, a 22-year-old man employed in two casual jobs at the time, pleaded guilty in the Local Court to seven offences and was committed to the District Court for sentencing. The offences comprised one attempted armed robbery, three armed robberies, two aggravated armed robberies, and one charge of causing wounding with intent to murder. The offences were committed over a four-month period in 2013 and involved an escalating pattern of violence against victims in retail premises.

The most serious offence involved the applicant entering a liquor store, demanding money, and when the owner refused, stabbing him repeatedly while shouting "Die! Fucken Die!". The victim sustained eight stab wounds to the torso, hip and thigh, a fractured rib, a punctured lung, and other lacerations. Earlier offences included returning to previously targeted stores and, in one instance, beating a victim with a baseball bat, fracturing his leg and arm.

On 24 July 2015, Berman SC DCJ in the District Court at Newcastle imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 22 years imprisonment with a non-parole period of 16 years and 6 months, dating from 6 September 2013. The applicant sought leave to appeal to the Court of Criminal Appeal.

The court was asked to resolve four grounds of appeal:

  • Whether the sentencing judge erred by failing to treat the applicant's prior good behaviour as a mitigating factor under s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred by failing to find that the applicant had good prospects of rehabilitation as a mitigating factor under s 21A(3)(h) of the Act
  • Whether the sentencing judge erred by taking into account the physical and psychological harm suffered by victims as an aggravating factor under s 21A(2)(g) of the Act
  • Whether the aggregate sentence of 22 years imprisonment was manifestly excessive

Decision

Grounds 1 and 4 (prior good behaviour and manifest excess): The Court treated Ground 1 as a particular of the manifest excess ground. Payne JA found no error in the sentencing judge's approach, noting that the absence of prior offending had in fact been acknowledged by the judge as a mitigating factor. The problem was the lack of cogent evidence about the applicant's subjective circumstances: he did not give evidence himself, and the expert evidence relied upon was largely withdrawn or found unhelpful by the sentencing judge. Given the gravity of seven serious offences involving escalating violence, the aggregate sentence was not manifestly excessive.

Ground 2 (rehabilitation prospects): The court found the sentencing judge had taken rehabilitation into account but was entitled to treat it as carrying limited weight. The applicant had not offered any explanation for his offending, and the expert evidence on this issue was found to be unhelpful. The sentencing judge's findings on rehabilitation prospects were consistent with the available evidence.

Ground 3 (victim harm as aggravating factor): Payne JA rejected this ground on a factual basis. A close reading of the sentencing judge's remarks showed he had not, in fact, found victim harm to be a distinct aggravating factor under s 21A(2)(g) of the Act. The premise of the written submission was simply incorrect.

Overall: The Court granted leave to appeal given the length of the sentence and the nature of the issues raised, but dismissed the appeal. All three judges agreed the sentence was warranted given the seriousness and cumulative nature of the seven offences.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of 22 years for seven offences involving escalating armed robbery and wounding with intent to murder was not manifestly excessive where the offending was serious and cumulative.
  • A sentencing judge's failure to give weight to prior good behaviour or rehabilitation does not constitute error where the evidence supporting those mitigating factors is sparse, unhelpful, or not presented by the offender himself.
  • Where an expert witness withdraws much of their evidence, a sentencing judge is entitled to find that evidence unhelpful, and an appellate court will not intervene in that assessment.
  • No error arises from an alleged failure to treat victim harm as an impermissible aggravating factor if, on a careful reading of the sentencing remarks, the judge did not actually make such a finding, making the premise of the ground of appeal incorrect.
  • Under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), leave to appeal against sentence may be granted even where the appeal ultimately fails, where the sentence length and nature of the issues raised justify appellate consideration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
- Crimes Act 1900 (NSW), ss 27, 95, 97
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- House v The King (1936) 55 CLR 499
- Josefski v R [2010] NSWCCA 41
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markarian v R [2005] HCA 25; 228 CLR 357
- Qing An v R [2007] NSWCCA 53
- R v Gent [2005] NSWCCA 370
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Solomon [2005] NSWCCA 158
- R v Youkhana [2004] NSWCCA 412