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District Court 6 September 2024

R v Trindall

[2024] NSWDC 520

Fraud & dishonestyTheft & property

Citation: R v Trindall [2024] NSWDC 520
Court: District Court of New South Wales
Date: 6 September 2024
Judge: Haesler SC DCJ

Background

The offender, an Indigenous man in his mid-forties, pleaded guilty to aggravated break and enter (with the circumstance of aggravation that a person was present) and dishonestly obtaining property by deception using stolen credit cards. The offending occurred in July 2023, when the offender entered the home of an elderly woman while she was gardening, stole her purse and items from her garage, then used her credit cards at retail outlets. He had earlier committed separate larceny and fraud offences in May 2023, for which a Magistrate sentenced him in July 2024.

The offender's background was a central feature of the sentencing exercise. He first entered custody as a teenager and, over the following 27 years, spent only six and a half years in the community. He carried a significant history of drug dependency, mental health conditions, a profoundly disadvantaged childhood, and institutionalised childhood sexual abuse.

Two matters were before the District Court: a Crown appeal against the Local Court sentence imposed by Magistrate Girotto in July 2024, and the sentencing exercise for the two fresh charges to which the offender had pleaded guilty on the day of the District Court hearing.

  • Whether the Local Court sentence imposed by Magistrate Girotto was appealably inadequate and should be disturbed.
  • How to assess the objective seriousness of aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW), having regard to the standard non-parole period of five years and the maximum of 20 years.
  • How to sentence for dishonestly obtaining property by deception under s 192E(1)(a), where multiple card uses were rolled up into a single charge, and how to avoid double-counting between the two offences.
  • How to weigh the offender's extensive subjective circumstances, including institutionalisation, drug addiction, mental health issues, and a history of abuse, against the objective seriousness of the offending.
  • Whether an Intensive Correction Order was appropriate as an alternative to full-time imprisonment.

Decision

The appeal from the Local Court was dismissed. Haesler SC DCJ found that the sentence imposed by Magistrate Girotto was the very least that could have been imposed in all the circumstances, and that interfering with it would amount to tinkering to no useful purpose. The Magistrate had plainly taken the offender's background and subjective material into account, including a finding of special circumstances to extend the parole period.

On objective seriousness, the break and enter was characterised as a serious offence, though both the Crown and defence placed it below the midpoint of the range. The elderly victim came perilously close to the offender during the offending, which illustrated precisely why the presence of a person in the dwelling is a circumstance of aggravation. The fraud offence, while involving a relatively small total amount, was treated as sufficiently serious to warrant imprisonment, partly because offences of that type undermine community trust in cashless payment systems.

On subjective matters, the court applied Bugmy v The Queen (2013) 249 CLR 571, which confirms that the diminishing effect of profound deprivation on moral culpability does not fade with the accumulation of prior convictions. Psychiatric evidence indicated a poor prognosis, and the court accepted that the offender's drug use at the time of the offending likely affected him, while noting that intoxication was no excuse and in fact made the offending more dangerous. The court found that an Intensive Correction Order was not appropriate given the offender's history and the nature of the offences.

Synthesising all factors, the court applied the principle from Hoskins v R [2021] NSWCCA 169 that, in cases involving profound disadvantage, the appropriate resolution may involve a degree of leniency not available to others. Both indicated sentences were reduced by 25% to reflect the guilty pleas entered in the Local Court. A finding of special circumstances was made, justified by the accumulation of sentences and the need for extended supervision and support during the parole period.

Orders Made

  • The Crown appeal against the Local Court sentence was dismissed; all orders made below were confirmed.
  • An aggregate sentence of 3 years' imprisonment was imposed for the two matters before the District Court, commencing 20 January 2024.
  • For aggravated break and enter: indicated sentence of 2 years and 7 months' imprisonment, with a non-parole period of 1 year and 8 months.
  • For dishonestly obtaining property by deception: indicated sentence of 1 year and 1 month's imprisonment.
  • Non-parole period of the aggregate sentence: 1 year and 9 months, with release to parole on 19 October 2025.
  • Parole period of 1 year and 3 months, commencing 20 October 2025 and expiring 19 January 2027.
  • Total effective sentence from the date custody commenced: 3 and a half years.

Key Takeaways

  • In dismissing the Crown appeal, the District Court confirmed that a sentencing judge on appeal must approach the matter afresh but should not interfere where the original sentence was the minimum appropriate in the circumstances and the sentencing magistrate had clearly engaged with the relevant material.
  • Under Bugmy v The Queen, the moral culpability-reducing effect of a profoundly disadvantaged background, including institutionalised abuse and chronic disadvantage, does not diminish simply because an offender has accumulated a lengthy criminal record.
  • Where multiple uses of a stolen credit card are rolled up into a single charge under s 192E(1)(a) of the Crimes Act, the number of transactions cannot be used as a statutory aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act, but it remains a relevant factual consideration in assessing seriousness.
  • A finding of special circumstances to extend the parole period beyond the standard ratio can be justified by the fact that sentences are being accumulated across multiple matters, particularly where extended community supervision is considered important to rehabilitation.
  • The court's reference to the Ponfield guideline judgment suggests it retains formal relevance under s 42A of the Crimes (Sentencing Procedure) Act, but Haesler SC DCJ observed that its practical work has diminished since the introduction of the s 21A aggravating and mitigating factors framework.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 42A

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327
- Hoskins v R [2021] NSWCCA 169
- Nasrallah v R [2021] NSWCCA 207