REGINA v. TRINDALL [2005] NSWCCA 446

Criminal Appeal Act 1912 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Thomson & Houlton (2000) 49 NSWLR 333 Fernando (1992) 76 A. Crim. R. 58 CASES CITED: Vincent (aka Harris) [2005] NSWCCA 135 Walter &Thompson [2004] NSWCCA 304 Newman & Simpson (2004) 145 A. Crim .R. 361

REGINA v. PARTIES: TRINDALL, Carol Anne

Crown: J. Bennett, SC. COUNSEL: App: J. Manuell

• 12 - IN THE COURT OF CRIMINAL APPEAL 2005/1590

HODGSON, JA. McCLELLAN, CJ. at CL. HALL, J.

WEDNESDAY 14 DECEMBER 2005 REGINA v. CAROL ANNE TRINDALL Judgment

1 HALL, J: This is an application for leave to appeal pursuant to s.5(3) of the Criminal Appeal Act 1912 against a sentence imposed on the applicant by the District Court sitting at Campbelltown before Maguire DCJ on 10 March 2005. The applicant was sentenced in respect of the following offences: firstly, steal from a person, two offences, pursuant to s.94 of the Crimes Act 1900 with a maximum penalty of 14 years imprisonment and, secondly, assault pursuant to s.61 of the Crimes Act 1900 with a maximum penalty of two years imprisonment. 2 The applicant was sentenced for each steal from the person offence to a term of imprisonment of four years commencing on 7 March 2004 and expiring on 6 March 2008. A non-parole period of two years was set. The applicant was also sentenced with respect to the count of common assault to a fixed term of two years to date from 7 March 2004. 3 The applicant had earlier been charged with an offence under s.95 of the Crimes Act 1900. However, the Crown subsequently accepted the applicant's guilty pleas in respect of the offences under s.94 and s.91 of the Crimes Act in satisfaction of the indictment. 4 In the applicant's submissions it is contended that the charges under s.94 and s.61 could have been dealt with summarily in the Local Court and that it appears that the only reason the applicant was committed to the District Court was because the Crown, at the relevant time, had wished to proceed on the more serious offence charged under s.95 of the Crimes Act 1900. 5 The submission was also made on behalf of the applicant that if the applicant's pleas to the Crimes Act 1900 offences under s.94 and s.61 had been accepted in the Local Court, and the Crown had not elected to have the charges dealt with on indictment, then the maximum penalties that could have been imposed in the Local Court in respect of each of the counts under s.94 was 12 months' imprisonment or a fine of $5,500 pursuant to s.496 of the Crimes Act 1900. The maximum penalty for the Crimes Act 1900 offence under s.61 was two years' imprisonment. 6 The applicant's counsel concedes that her criminal record was extensive and the offences were committed whilst she was on parole. It was further submitted that taking the applicant's aggravating and mitigating factors into account, the maximum respective penalties of twelve months in respect of the s.94 offences and two years' imprisonment for the s.61 offences with respect to the assault count, permitted a sufficient range of penalties with which to punish the applicant. It is, accordingly, submitted that Maguire, DCJ. should have had regard to the maximum available sentences in the Local Court when sentencing the applicant, but did not do so.

The initial sentence hearing and subsequent events 7 Proceedings on sentence commenced on 26 March 2004 at the District Court in Campbelltown. The applicant on that occasion gave evidence in chief but was not cross-examined. Maguire, DCJ. made an order under s.11 of the Crimes (Sentencing Procedure) Act 1999 for the purposes of assessing her capacity for and progress with a rehabilitation course to be undertaken at Guthrie House. The applicant was released from custody and the matter was adjourned until 28 June 2004. On that date the applicant failed to appear. A bench warrant was accordingly issued. 8 On 27 September 2004 the applicant appeared before the District Court at Dubbo. The court was informed that she had handed herself in at Forbes and was granted bail. The court was at that time advised that she was undergoing psychiatric treatment at Bloomfield Hospital, Orange. The matter was then adjourned until 1 November 2004 and bail was continued on condition that the applicant remain at the Bloomfield Hospital. 9 On 29 September 2004 the applicant reappeared before the District Court at Dubbo where she informed the court that she had been discharged from Bloomfield Hospital. Her bail was varied for her to live at 9 Canada Parade, Lake Cargelligo. 10 The applicant failed to appear on 1 November 2004 but was represented by the Western Aboriginal Legal Service. The matter was subsequently mentioned on 3, 4, 17 and 22 November 2004. The proceedings were transferred to the Campbelltown District Court on 6 December 2004. The court was informed that the applicant had had a further admission into Bloomfield Hospital. 11 On 6 December 2004 the applicant failed to appear and the court issued a bench warrant. She was arrested on 16 December 2004 and was bail refused until 10 March 2005 when Maguire, DCJ. sentenced her.

The circumstances of the offences 12 The offences occurred at Platform 1 at the Minto railway station on 10 June 2003. The two events occurred approximately 10 minutes apart when the applicant approached two women who were waiting for a train at the railway station. At approximately 1750 hours, the first victim was seated at the station when the applicant approached her and sat down next to her. The applicant said that she had been sexually assaulted and that she had no money to get home. The applicant then lunged at the first victim and started to "cuddle her", placing her face in the victim's lap. While this was occurring the applicant removed the victim's purse from her handbag. Soon after, the train arrived and the victim and the applicant became involved in a "tug-o-war" over the handbag. The victim eventually regained possession of it but realised that her wallet and Walkman radio were missing. When she regained possession of her wallet she observed that $100 was missing. 13 The second victim stated that she arrived on Platform 1 and she noticed a female and a male person walk down the steps of the platform. She said in her statement, "I noticed them because the female was screaming and crying". She went on to identify the applicant as of Aboriginal appearance and stated, "I got the impression that she was drunk. I got this impression as I noticed that she was walking awkward and was slurring when she spoke". 14 The applicant walked up to her and put her arms around her and commenced to hug her. Not long after, she felt the applicant pull her arm out of the victim's bag which she then was holding in front of her. She thought this was strange, checked the bag and saw that the wallet was missing. The victim called out that she had stolen her wallet and commenced to follow her. She attempted to grab it from the applicant. She then says that at that time the applicant grabbed her by the ponytail and forced her to the ground. She and the applicant fell to the ground and then the applicant commenced to grab at the victim's hair and banged her head three times on the concrete. 15 The victim noted when she recovered her wallet that $60 in cash and $10 in change was missing. She was shocked but fortunately did not receive any permanent injury.

Grounds of appeal 16 The applicant in her written submissions relied upon six grounds of appeal. At the hearing, counsel for the applicant announced that Ground 2, "His Honour erred in that he did not give a discount for the applicant being pregnant" was not being pressed. 17 Ground 1 is expressed in these terms: "His Honour erred in that he did not give any adequate discount for the applicant's early plea of guilty". The learned sentencing judge said in this regard (p.4 of his remarks on sentence dated 10 March 2005):- "I have taken into account the plea of guilty in her favour but only to a very limited extent. It is of some utilitarian value but her behaviour since then suggests that there is no real contrition on her part at all." 18 Counsel for the applicant has submitted the following:-

(a) The sentencing judge failed to quantify the discount which was to be received by virtue of the early plea and this is in circumstances in which the Crown had conceded that the plea was at the earliest opportunity.

(b) The discount, in the circumstances of this case, should have been 25%.

(c) In stating that the applicant's plea was "of some utilitarian value" and then in the same sentence dealing with the aspect of contrition was erroneous.

(d) The sentencing remarks can bear no other reasonable construction than that the sentencing judge reduced the discount for the utilitarian value of the plea solely as a consequence of his finding that her response to the s.11 bond was indicative of a lack of contrition. The failure to specify an amount of the discount, which it was conceded is not an error in itself, did nothing to dispel that construction.

(e) The failure of the sentencing judge to recognise the utilitarian value of the earlier plea of guilty was conclusively revealed by the sentence for the common assault in which the applicant received the maximum penalty of two years with respect to that charge. 19 It is plain from what his Honour said in the extract that I have quoted that he only took the early plea of guilty into account "to a very limited extent" and this by reason of the applicant's subsequent conduct as revealing lack of contrition. 20 Accordingly, the sentencing judge heavily discounted the utilitarian value of the plea by reason of one aspect associated with the early plea - contrition. In doing so, I consider his Honour erred. The net result of the approach taken was to give the plea little weight, notwithstanding the fact that it was an early plea and the various benefits associated with the plea which involved removing the need for witnesses, including the victims, of the requirement to give evidence. 21 The rationale and the underlying purpose in affording a discount on the sentence, as explained by Spigelman, CJ. in Regina v. Thomson & Houlton (2000) 49 NSWLR 333 at 418-419, has essentially been excluded from operation by the approach which his Honour took based wholly upon the applicant's subsequent conduct. The conclusion expressed by the Chief Justice in Thomson & Houlton emphasised that:- (a) A plea of guilty may encompass any or all of the matters to which the plea may be relevant, namely: contrition; witness vulnerability; utilitarian value. (b) In relation to a plea's utilitarian value, encouragement was given to the quantification of it. (c) The utilitarian value of a plea to a criminal justice system should generally be assessed in the range of 10 to 25% discount on sentence. (d) The primary consideration determining where in the range a particular case should fall is the timing of the plea. (v) What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. 22 Whilst the Crown conceded that the plea was at the earliest available opportunity, the sentencing judge only gave the applicant the benefit of it "to a very limited extent" by reason of a matter unrelated to its utilitarian value. That other matter was the element of contrition. Moreover, the sentencing judge's approach was that later events (the applicant's subsequent conduct) undermined the element of contrition. As I have stated, that approach could not undermine the utilitarian value of the early plea. 23 I will return to consider the significance of the error shortly. 24 Ground 3 is expressed as his Honour erred in failing to apply the principles in Regina v. Fernando (1992) 76 A. Crim. R. 58. Counsel for the applicant contended that not only did the remarks on sentence not refer to the Aboriginality of the applicant, but that the material before the court was such that it was appropriate to apply the principles in Fernando (supra) and to mitigate penalty. It is contended that her offending behaviour was directly connected to her Aboriginality. 25 The Crown submitted that this is not a Fernando case in the requisite sense and relies upon the discussion of the principles by Wood, J, as he then was, especially at pp.62 to 63 of the reported decision. The Crown further submitted, in this respect, that the applicant's personal circumstances and her offending behaviour do not meet the relevant criteria and that the Fernando principles do not apply to every Aboriginal offender: Regina v. Vincent (aka Harris) [2005] NSWCCA 135, especially at [11] per Spigelman, CJ., with whom Studdert and Greg James, JJ. concurred; Regina v. Walter & Thompson [2004] NSWCCA 304 per Grove, Sully and Kirby, JJ., and Regina v. Newman & Simpson (2004) 145 A. Crim. R. 361 per Howie, J. at [57] to [68], McColl, JA. concurring. 26 Having considered this matter, I am of the view that the Fernando principles do not apply to the applicant. She is of Aboriginal heritage and was taken with her younger brother to Coonamble by her father when her parents separated when she was aged four years. She was, according to the Probation and Parole Service pre-sentence report dated 15 March 2004, raised by a woman who was apparently a relative of her father. She claims to have been abused by relatives and came to Sydney in her early teens when she commenced her illicit drug use. 27 The applicant's family and social factors are, beyond question, tragic but are not referable to the applicant's membership of the Aboriginal society as such but are unfortunately more generally associated with the destructive effects of drug addiction. In other words, I do not consider that the applicant's Aboriginality is relevant to explain or throw light on the particular offences and the circumstances of the applicant. It is but one factor in an otherwise complex set of negative factors. 28 Ground 4 is expressed as the sentence imposed was manifestly excessive. The Crown concedes that the court should grant leave with respect to Ground 4 and re-sentence the applicant on that count. Having regard to the fact that the maximum penalty for that offence is two years' imprisonment, it is clear that his Honour erred in imposing a fixed term of two years for that offence. The Crown has also submitted that the court should dismiss the appeal with respect to counts one and two because the court could not come to a positive conclusion that any lesser sentences were warranted in law on those counts. The Crown, overall, submits that there should be no change to the applicant's effective sentence. 29 On 26 March 2004, the applicant gave evidence and a pre-sentence report dated 16 March 2004 was tendered without objection. The applicant's evidence outlined her drug addiction and her attendance at a methadone clinic in the past. In relation to the events of 10 June 2003, she gave evidence as to the following. She and her partner had had a fight. She went down to a park and was drinking "with the Kooris" when a friend spiked her drink with Rohypnol. That afternoon she claims that she was raped, that is, prior to the commission of the offences. It was presumably upon the basis of this evidence and the pre-sentence report that the sentencing judge agreed to the application made on her behalf that she be placed on a good behaviour bond and be given the opportunity, prior to the passing of sentence, to participating in a rehabilitation programme to which I have earlier referred. 30 When the matter came back before the sentencing judge on 10 March 2005, there was no reference to the evidence as to the alleged events that overtook the applicant on the afternoon of the day on which she committed the offences. There was no cross-examination of her on the evidence she gave as to those events. 31 If the evidence given by the applicant was accepted, then at least two matters would arise for consideration. Firstly, as to whether, and if so, to what extent the trauma associated with the events would constitute extenuating circumstances. Those events occurring on the day of the offences plainly represented another significant trauma in the applicant's history of abuse. 32 Secondly, the trauma associated, in particular, with the alleged rape, together with the spiking of her drink, could provide a link to and at least constitute a partial explanation of her intoxicated condition which other evidence clearly established. 33 There is no explanation as to why the sentencing judge on 10 March 2005 apparently gave no consideration to these matters as related by the applicant in evidence on the first occasion the proceedings were listed for sentence. Whilst the evidence apparently provided a basis for the sentencing judge to place the applicant on a bond and on remand on 26 March 2004, there is no statement in the remarks on sentence as to why the evidence was of no relevance or consequence in determining sentence on 10 March 2005, the date of sentence. 34 I consider that his Honour erred in failing to consider the possible relevance of the applicant's evidence on the alarming events which she claimed occurred on the day of the offences. However, having given the matter some considerable consideration, notwithstanding such error, I do not consider that it warrants the intervention of this court on that basis. 35 I have so concluded by reason of the fact that the evidence does not tend to show that the applicant embarked on a deliberate course of conduct in obtaining possession of the victims' wallets and then proceeded to assault the second victim's head with a view to overcoming her resistance. It is difficult in the circumstances to attribute and excuse such specific conduct to either the effects of the claimed rape or to the effects of intoxication, including the spiking of her drink. 36 Moving to Ground 6, that the sentencing judge erred by not giving consideration to the penalties that could have been imposed in the Local Court, it has been submitted on behalf of the applicant that, taking the applicant's aggravating and mitigating factors into account, the maximum respective penalty that could have been imposed in the Local Court of 12 months with respect to each offence under s.94 and two years' imprisonment in respect of the offence under s.61, permitted a sufficient range of penalties with which to punish the applicant. It was submitted, accordingly, that the sentencing judge should have had regard to the maximum available sentences in the Local Court when sentencing the applicant but did not have regard to that matter at all. 37 In Regina v. Crombie [1999] NSWCCA 297, Wood, CJ. at CL. emphasised that, at most, the maximum available sentence that could have been imposed in the Local Court in relation to charges dealt with on indictment is but one of the circumstances which is to be taken into account. It was thereby acknowledged that, depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. His Honour added at paragraph 16:- "... where it appears that the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal". 38 Accordingly, the relevant principle is that a sentencing judge is not required to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. It is but one circumstance to be taken into account by the judge in the exercise of his or her discretion. See also Regina v. Khaled Elomar [2000] NSWCCA 431 at [8]. 39 The sentencing judge sought clarification as to why Local Court statistics were being handed up on sentence. The Crown indicated that the statistics were included because the charges could have been dealt with in the Local Court. 40 The sentencing judge did not refer to the penalties that could have been imposed in the Local Court. In doing so, the sentencing judge erred in not giving consideration to that matter. The maximum penalty for an offence under s.94 is a penalty of fourteen years' imprisonment. However, having regard to the fact that the applicant committed the offence whilst on parole, the aggravating circumstances concerning the second steal from the person offence and the level of sentence imposed, I do not consider that his Honour's failure to give consideration to the penalties that could have been imposed in the Local Court could be considered as such in the circumstances of this case to warrant the intervention of this court on that basis. 41 As to determination of this applicant, this court should, in my view, intervene on the basis of Ground 1, that is, his Honour did not give any adequate discount for the applicant's early plea of guilty. I am of the opinion that the utilitarian value of the applicant's plea should be assessed at 25% discount on sentence which should be reflected in both the head sentence and the non-parole period. 42 I propose orders in the following terms:-

(b) The appeal should be upheld and the sentence imposed by the sentencing judge set aside.

(c) That the applicant be sentenced in respect of the two steal from the person offences pursuant to s.94 of the Crimes Act 1900 to a non-parole period in respect of such offences of 18 months to commence on 7 March 2004 and to expire on 6 September 2005 and to a balance of term of 18 months to expire on 6 March 2007.

(d) In respect of the offence under s.61 of the Crimes Act 1900 (common assault) that the applicant be sentenced to a fixed term of 18 months to commence on 7 March 2004 and to expire on 6 September 2005. Therefore, the applicant should be forthwith considered for release on parole. 43 HODGSON, JA: I agree. 44 McCLELLAN, CJ at CL: I agree. 45 HODGSON, JA: The orders of the court will be those as proposed by Hall, J. **********

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