R v Trindall

The appeal

1. A complaint was made that, when I reviewed the sentences that the learned magistrate had indicated as part of the aggregate sentence she imposed, I not only could but would, reach a different conclusion as to the appropriate sentences indicated.
2. Sentence appeals require a judge to approach the matter afresh. As Mr Loosley, who appears for the Director of Public Prosecution notes, the appeal is against the total sentence imposed, not just what was indicated.
3. Mr Hart, who appears for the appellant and offender, says that when I reassess the indicated sentences, I would not impose a custodial sentence for the hinder police, as it falls at very bottom of the range of such matters. He also submitted that I would not indicate sentences of 2 months for every time a credit card was tapped at a retail store.
4. While there is some force to those submissions, the actual sentence imposed was, in all the circumstances, the very least that could be imposed. Her Honour also gave Trindall the benefit of a significant finding of special circumstances. The offender's background and the letter that he put before the Court, were obviously taken into account by her Honour. To interfere in any way with her Honour's sentence would be, with respect, tinkering to no useful purpose.
5. For those reasons, the appeal is dismissed. That does not mean that I don't take into account the material that was before me and before the learned magistrate. I must, when I sentence for the matters now before me, take into account his criminal history and the period of custody that he has served; facts relevant to both matters. While I could commence this sentence from the day he went into custody, and it is imperative that this sentence commenced at the latest end of the non-parole period, I have a considerable discretion as to when I commence it.

Matters for sentence

1. The sentence for all matters should be just and appropriate to the crimes committed. There must, however, be some independent punishment for the matters that were before the Local Court. Accordingly, I will propose to start the sentence after he had served six months of the two-year term imposed in the Local Court; which is be 20 January 2024.

Maximum and standard non-parole periods

1. The maximum penalty for the break and enter matter is 20 years' imprisonment Crimes Act, s 112(2). There is a standard non-parole period of 5 years. The maximum penalty for dishonestly obtained property by deception, if dealt within this Court is 10 years imprisonment: Crimes Act, s 192E(1)(a). In the Local Court, 2 years.
2. Here, each of the taps of the card taken from the break and enter were rolled up into one single offence. That matter could not be additionally aggravated because it involves multiple matters: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m). But the number of times the card was used is still an important factor; as is the amount taken. I sentence, so far as dishonestly obtained property matter is concerned, for the use of the card, but its origin is taken into account when I sentence for the break and enter.
3. I have to be careful not to double count matters in common between them, but it is a separate offence to use property taken during a break and enter. That offence, while the amount, even when rolled up, is relatively small, is still a serious offence. And while, if dealt with in isolation, it may not necessarily attract a full-time custodial sentence, when all relevant matters are taken into account, it is sufficiently serious to justify a period of imprisonment of some length.
4. However, by comparison with most matters that come before this Court and thus have a 10-year maximum, it falls well towards the bottom of any notional range that could be considered.
5. The Crown accept that the break and enter matter falls "below the middle of the range". Mr Hart says it is at "the low end of the range".
6. It was a serious offence. I have to take into account and give content to the standard non-parole period. The maximum penalty is another important guide to the exercise of my discretion. An element of the offence is, "knowing a person was present". The reason for it being a circumstance of aggravation is illustrated by this offence.

Agreed Facts

1. There are comprehensive facts before me. In very short summary: The offender, then aged 43, was in Western Sydney. He had been living in the Wollongong area, but his use of drugs had caused his family to ask him to leave. He told a psychiatrist that he was using the drug Xanax at the time and that it may have impacted on him. I am sure it did, but that is no excuse. To the contrary, the fact he was drug-affected made him potentially more dangerous because of the risk of confrontation with the homeowner.
2. The homeowner was a lady in her 80s who, at the relevant time on Sunday 2 July 2023, was gardening. The offender saw her as he cycled past her home. He then entered surreptitiously her home while she was gardening. He took her purse which contained cards and cash. He then went to a garage on the property and removed a chainsaw, batteries, and chargers. It is estimated the cost of the property he took was about $1,300.
3. At one stage, the homeowner came perilously close to the garage where the offender was. There was a risk of confrontation. It was only afterwards that she found out her property had been taken. Her house was well covered by CCTV. That CCTV did not deter the offender, but it enabled him to be identified and arrested. He then used her credit card to make a number of purchases of reasonably small amounts, adding up to just over $300; the second matter for sentence.

Objective seriousness

1. As indicated earlier, the use of the card added up to a relatively small amount of money, even for an elderly lady. As retail stores were defrauded, these crimes undermine the community's need for trust in cashless finance system, now essential to modern living. While the amounts were relatively small it still, as I said earlier, requires a custodial sentence.
2. The break and enter is, obviously because of the maximum penalty and its circumstances, a more serious offence. It needs to be stated and restated that entry into people's home and taking of property causes grave harm, not just to individuals but to the community in general.
3. I have to take into account the guideline judgment of the Court of Criminal Appeal in Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327. That must be considered: Crimes (Sentencing Procedure) Act, s 42A. But it seems to have little work to do since 21A Crimes (Sentencing Procedure) Act was introduced.
4. As the Crown remind me, I have to be careful not to double count matters in aggravation. Much depends on the crime committed in the premises. Everything depends on the circumstances, as all sentencing exercises are individual. Here the degree of criminality should not be underrated. To check your CCTV and learn that while you are in your yard a stranger has snuck into your house and garage would, as is clear from the Victim Impact Statement, cause grave a victim disquiet. These matters would leave anyone with a sense of violation and unease. This was again illustrated by the Victim Impact Statement. The elderly resident here found the incident so frightening; she is now afraid to live on her own, has sold her house, and moved.
5. So, the loss she suffered went beyond the monetary value of the property taken. In such matters it is the impact on the individuals and the community that has to be taken into account. And while understandably a home is seen as more precious, a garage can contain much of value. And here a home was entered, and a valuable piece of equipment, and associated equipment, were taken from the garage.
6. It has been said, and needs to be repeated, the community has a rightful expectation that judicial officers will act responsibly and impose meaningful penalties when a burglar is caught and convicted. Other would-be burglars just might be deterred when it is learned how seriously the Courts view such matters. And here, despite his lengthy record, the offender has to understand that to behave in such manner cannot, and will not, be excused. These matters will result in serious sentences. That said, for many years statistics have shown New South Wales has the highest imprisonment rate for break-and-enters, and there are still break-and-enters: S Indyk and H Donnelly, "Trends in the use of full-time imprisonment 2006-2007" (2007) 36 Sentencing Trends & Issues: Judicial Commission of New South Wales.
7. Here, the amount of property taken was relatively modest, but the brazen nature of the offence committed after observing the homeowner and being aware of her vulnerability, make it a relatively serious example of its type. At the time Trindall appeared to have no fear of returning to gaol; the risk of imprisonment did not deter him, nor did the CCTV.
8. General deterrence has some values where crimes involve some premeditation, even if here that premeditation was impacted on by his drug use.
9. A proper sentence marks the Court's view of the seriousness of the crime, and lets others know the retribution will fall upon them if they commit similar crimes. Returning to the competing formulations by the parties as to where this offence falls, I accept it is below the middle of the range, but it is certainly not a low-range offence. That finding does not govern the sentence that must be imposed. Other important factors must be considered. I have to consider and take into account all relevant factors and synthesise them.

Victim Impact

1. I have the Victim Impact Statement to which I have already referred. The owner of the property says she was so petrified she had no other choice but to put her house on the market with financial burden. The event affected her mental health. She is always looking over her shoulder getting in and out of her garage. She was concerned. She was unable to work in her garden, something that gave her great joy. She had to move. They are all, as I have already indicated, common reactions to offences of this nature. The offender, drug-addled as he may have been, must have been aware of the nature of who the property owner was when he committed this offence against her.

The case for the offender

1. The material for me includes a letter from the offender. He did not give evidence on oath, but what he says is not controversial. It is supported by the material in the reports before me, which again, while sad, is not controversial. There are however some aspects that must be taken in his letter that have to be taken with the proverbial "grain of salt". He notes that on remand he has no access to any form of addiction program or self-awareness programs. That may be so where he is at Bathurst, but I have had prisoners give evidence that they have been able to access such programs while on remand. But I appreciate how difficult that can be at many gaols.
2. He says that he is, despite his long history, getting "sick and tired of being in [big] yards with criminals". He is sick and tired of getting out with no programs in place for him. He says he believes the system has let him down. But he has done EQUIPS programs. His custodial record also indicates he's done the Violent Offenders Treatment program. He says: "I truthfully and honestly do believe your Honour that the more I am sentenced to gaol time the more my disadvantage increases. I find myself stuck in a cycle of using drugs until I find myself back in prison and honestly want nothing more than to beat this addiction. It's honestly like a sickness. I can't escape until I get the tools I need to help me overcome this problem and addiction, I'll see myself in the same place in the future. Your Honour, I've never gotten the chance or the opportunity to address why I keep coming back nor have had the chance or opportunity to participate in a residential rehabilitation program."
3. By the words "never had", I think he means, engaged in a residential rehabilitation program. He promises, "I will not fail". He says he needs a chance. With great respect to Trindall, I am sure he has made those promises before; to himself and to his family and to other courts.
4. I do have cases where people never come back before the courts again. Others I see all too regularly. I will take into account what he says. It is supported by the history that is before me, particularly his custodial history, which indicates, as I have said, that the longest period he spent in the community is nine months since he was a teenager.
5. The material in the reports before me is comprehensive. I will summarise it very shortly. Trindall is a proud Indigenous man. He did not have the advantages most in our community expect when growing up. He moved from place to place. And, although his parents obviously cared for him, his father had problems with alcohol. There is evidence of domestic violence against his mother. His mother at times dealt in cannabis to provide an income. The police were a regular presence in his life. He went into juvenile detention. He took up the use and abuse of illicit drugs while too young to make rational choices.
6. There is a well-documented history in the report of Dr Allen which indicates, and provides significant details, of a number of sexual offences being committed against him while he was a child in detention. He presently has a civil claim before the courts for the injuries he has suffered. His criminal history reflects some of that history, particularly an escape conviction. An escape conviction would have, and still might, interfere with his progress through prison classifications, no matter that the escape may have been justified because of his treatment in juvenile detention.
7. He went into custody in an adult gaol at 18. He has spent, as I indicated earlier, the vast majority of his life in gaol. Dr Pusey in par 82 of his report, says Trindall has Substance Use Disorder in remission, which is well documented, and an Adjustment Disorder. Trindall has suffered many adverse childhood experiences of significance. As a result, he now has Post-Traumatic Stress Disorder and Complex Post-Traumatic Stress Disorder.
8. He will need, as Dr Pusey indicates, considerable assistance. He will need help because he has the dual diagnosis of mental health and substance abuse conditions. He will need treatment which holistically addresses his presenting pathology. He will need quite intensive treatment; treatment that he is unlikely to receive in custody and will be difficult to access in the community.
9. He is presently on the Buvidal program which is providing him some relief from his long-standing drug addiction, but that program may interfere with his acceptance into rehabilitation programs in the community.
10. Dr Pusey indicates his risk of recidivism is in the moderate high-risk category.
11. The report of Dr Allen was prepared for compensation proceedings. It perhaps takes a more pessimistic view of his future, noting his prognosis for avoiding re-offending is poor. It sets out his history in even more detail. It notes the correlation between that history and his abuse of illicit drugs and the reasons why, despite his best intentions on release from custody, within months he is back using drugs, back breaking any community ties he has, and soon after committing offences, and returning to gaol.
12. He has, according to the Dr Martin's table at p 20, very few social skills, again, reflecting the lengthy period he spent in custody. There are some positives, but he has never worked. He does not know how to work either in custody, or particularly, in the community. In terms of his employability, Dr Allen assesses him as totally impaired and unable to work.
13. He has many social skills to learn. They include how to engage in social relationships because once he starts using drugs, strains appear. He has poor concentration and often lacks focus.
14. The submission was made that he is institutionalised. I think that is obvious from the material before me. The experience of incarceration can have long-term impacts on some prisoners. The impact is made worse the harsher and more extreme or psychologically taxing the prison environment is. His escape classification and heavy A classifications, illustrate that. Because prisons impose rigid routines on offenders, it removes the potential for individual decision-making about aspects of their life. It means that they are often hyper-vigilant in an environment where aggression and emotional over-control are quite common.
15. It is in everyone's interest, as the offender asks, that attempts be made to break the cycle of; release, drug use, crime, and return to prison. Even in the face of entrenched institutionalisation, a finding of special circumstances can, and here will, be made to enable this. If possible, there should be a staged release into the community and the treatment that Dr Pusey recommends. A copy of Dr Pusey's report will go to the State Parole Authority.

Synthesis

1. The material before me requires a nuanced approach. All of the material before me must be taken into account. Some aggravate, such as his drug use, some mitigate. There is no golden rule. Ultimately, every sentence is about community protection. The longer Trindall is kept in custody, the less chance he has to offend against the community. But he must be released. Sadly, every time he has been released before, he has come back to gaol.
2. Giving weight to the conflicting purposes of punishment is what makes the sentencing exercise so difficult. On one hand, deterrence of others may be of less importance for someone with the psychiatric and other conditions suffered by Trindall. On the other hand, as his repeated re-offending reveals, protection of society is of great importance.
3. When I weigh all the appropriate matters, considerable weight has to be given to the offender's background, particularly the impact on his childhood development. Those impacts do not diminish over time and should be given full weight: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
4. A person's background, personal history, as illustrated by the matters here now before me, can affect their capacity to reason, appreciate the full wrongness of their actions or control their conduct. There is here a well-demonstrated causal connection between a dysfunctional background and the offender's impaired socialisation, an adjustment to what many regard as societal norms, that is, honesty, family involvement, and hard work. It does not mean that a person bears no moral responsibility for their crimes, but his background is very relevant.
5. I must consider the offender's moral culpability, that is, their moral blameworthiness. Here, there are a number of parts to reduce the offender's moral culpability as opposed to someone who did not have his disadvantage. They are here, inextricably interrelated. They include:

• The effects of childhood deprivation: Bugmy.
• Childhood trauma, such as being the victim of sexual assault: Nasrallah v R [2021] NSWCCA 207.
• His mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
• And as I have indicated, the impact of custody itself can be a traumatising experience.

1. They have meant that he, even at 44, is compromised in his capacity to mature and learn from experience. He has a desire for rehabilitation. Mr Hart has said he now appreciates he is at a crossroads in his life. I accept that is his promise to himself, the Court, and his family. But as his record indicates, he has made those promises before. There has been, in the material available, no demonstrated commitment to rehabilitation. And while he expresses, as I am sure he truly believes, a commitment to his children, partner and new grandchild, they (children and partner) were a motivation before the commission of this offence, and nothing changed. He was kicked out of the home because of his drug use.

Is an Intensive Correction Order appropriate?

1. A submission was made that when I take into account not only the seriousness of the events but the significant mitigating factors in his background, leniency is called for, and even in an aggregate sentence, a sentence of three years or less could be imposed. That then, if I accept that submission, means that the option of serving the sentence by intensive correction in the community is available to the Court. Intensive correction can allow a person to get the assistance they need to change their life. It is not a lenient sentence. It requires commitment from the offender and sometimes a greater commitment of resources by Community Corrections than available when released to parole.
2. I considered that submission. In considering a community Intensive Correction Order, the paramount consideration is community safety. There are a number of aspects to community safety. One is, of course, removal. The other is whether a program could be put in place to prevent recidivism. There is simply no evidence of any program that could commence today that would reduce the risk of recidivism. All of the material before me indicates that that risk is high and will continue to be high for the rest of the offender's life until he is able to participate in whatever program might be made available to him. But there is no program detailed in any of the reports.
3. Further, his history demonstrates a complete failure to engage with probation and parole for any lengthy period of time. Past behaviour, no matter what its cause, is a good indication of future behaviour. The prognosis for Trindall is poor. He is now in middle age. He has never been socialised. He has made promises and repeatedly broke them. There is, with great respect to his desire for immediate release and the promises he has made so far as 'this time for sure' he will change, I cannot accept that that promise, while genuinely made, has any prospect of success. There must be a custodial sentence in this matter. His history just does not justify any alternative.
4. Synthesising all those matters, as the Court of Criminal Appeal said in Hoskins v R [2021] NSWCCA 169, sometimes the best way of resolving them is a degree of leniency that might not be made available to others without his background. It may not seem lenient to him, but when one considers the maximum penalty, the standard non-parole period, the seriousness of the offence committed, what I propose to indicate are, I believe, relatively lenient sentences.
5. Both indicated sentences take into account the guilty pleas entered in the Local Court. They have been reduced by 25%. There will be a finding of special circumstances. While there must be some accumulation on the earlier sentence and there must be some accumulation between the sentences, the fact of accumulation justifies a special circumstances finding. It seems clear that the longer and more intensive the supervision of this offender in the community, the greater he will have an opportunity to prove that he can meet the promises he has made to the Court, his family, and this time he will engage with whatever programs can be made available to him. One hopes that if he is successful in his civil action that he might have the financial resources to do so. But as I said, the material before me indicates, regardless of what occurs, that his prognosis is poor.

Orders

1. Taking all those matters into account, the formal orders of the Court are:

• The appeal is dismissed. I confirm all the orders in the Court below.
• There will be an aggregate sentence for the two matters before the Court.
• For the offence of aggravated break-and-enter, I indicate a sentence of 2 years and 7 months' imprisonment, non-parole period 1 year 8 months.
• For the car offence, I indicate a sentence of imprisonment of 1 year and 1 month.

1. The aggregate sentence is 3 years' imprisonment. It will date from 20 January 2024. The non-parole period is 1 year and 9 months, which means Trindall will be released to parole on 19 October 2025. The parole period of 1 year and 3 months will commence on 20 October 2025 and expire on 19 January 2027.
2. The total effective sentence since he went into custody is 3-and-a-half years for transparency's sake and I have tried to get to a ratio as between the head, a ratio of approximately 65% justifying 1 year, 3 months on parole.

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