Troy LITTLE v R [2009] NSWCCA 113

New South Wales Court of Criminal Appeal

CITATION: Troy LITTLE v R [2009] NSWCCA 113

HEARING DATE(S): 08/04/2009

JUDGMENT DATE: 21 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 24

DECISION: Application for leave is granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Appeal against sentence - Evidence of psychologist rejected by sentencing judge - whether erroneous - whether brain injury mitigating or whether significance of general deterrence should have been reduced.

LEGISLATION CITED: Crimes Act 1900 - ss 86(1)(b), 111(2)

CATEGORY: Principal judgment

R v Engert (1996) 84 A Crim R 67 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Dagwell [2006] NSWCCA 98

PARTIES: Troy Little v Regina

FILE NUMBER(S): CCA 2008/00000953

COUNSEL: V Lydiard - Crown F Coyne - Applicant

SOLICITORS: S Kavanagh - Crown Burston Cole and Mulock - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/0953

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 14/08/2008

IN THE COURT OF CRIMINAL APPEAL 2008/953

GROVE J HOWIE J BUDDIN J

TUESDAY 21 APRIL 2009 Troy LITTLE v R Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court for three offences arising from an incident that occurred when he entered his former girlfriend's premises and bound her hands for a short period. This conduct resulted in three offences to which the applicant pleaded guilty in the Local Court. The first offence was contrary to s 86(1)(b) of the Crimes Act, that is detaining a person for advantage. That offence carried a maximum penalty of imprisonment for 14 years. The second was an offence of assault contrary to s 61 of the Act and for which a maximum penalty prescribed is imprisonment for 2 years. The third offence was an aggravated enter dwelling house with intent to commit a serious indictable offence, the offence alleged being intimidation. That is an offence contrary to s 111(2) of the Crimes Act and carries a maximum penalty of 14 years. 3 The applicant maintained his pleas of guilty in the District Court and was sentenced by Judge English (the Judge) on 14 August 2008. For the assault offence the applicant was sentenced to a fixed term of imprisonment for 12 months from 14 August 2008 and to expire on 13 August 2009. In respect of each of the other two offences the applicant was sentenced to a term of imprisonment comprising a non-parole period of 12 months and a balance of term of 18 months. The sentences commenced on 14 August 2008 so that the applicant is to be released to parole on 13 August 2009. 4 There was an agreed statement of facts and it can be summarised briefly. The applicant and the complainant, who was aged 29, had been in a relationship for about 5 years but it had soured on her part and she had informed the respondent that she no longer wished to see him. The complainant arrived at her unit, where she resided with a flatmate, at about 4.55pm. She left the sliding door partially open after letting the cat outside and went to have a shower. The applicant entered the flat through the open door and went to the bathroom. He demanded in an aggressive manner that the complainant leave the shower. He then handed her a towel and told her to dry herself. 5 The complainant told him to calm down and asked how he got into the unit. He replied through the back door and then slapped her across the face. He pushed her roughly to the bed. He grabbed her hands and tied them behind her back using cable ties that he had with him. He said, "Why the fuck do you lie to me?" He told her to get dressed but she said she could not with her hands tied. He handed her some clothes and took her mobile phone to prevent her summoning help. He attempted to place tape over her mouth but it would not stick. He told her that if she stopped screaming he would untie her. He went out of the room and returned with a knife that he used to cut the ties. 6 The complainant's flatmate came home and heard the complainant crying. She warned the applicant not to harm the complainant and left the premises. 7 The applicant asked the complainant why she kept lying to him and threatened to kill himself. He then produced a page printed from the complainant's computer site that he believed was a reference to another man. There was further conversation and the applicant told her that she would not see him again. He requested one last cuddle, which the complainant reluctantly gave him, and he then left the premises. 8 The complainant contacted police and showed them the various items used by the applicant including the ties, tape and knife. On 18 August police spoke to the applicant and he made admissions in an ERISP. 9 There was a pre-sentence report. It noted that the applicant, aged 28, resided in Victoria with either his parents or other relatives. He was a professional sprint car driver but because of an existing AVO was forced to race in Victoria as the complainant raced vehicles in NSW. There was nothing of relevance in his background. He admitted that he had been drinking alcohol on the day of the offences but denied drinking was a problem. He was aware of the seriousness of his conduct. The author of the report noted that he had "no mental health issues". 10 There was a report from a psychologist who performed a neuropsychological assessment upon the applicant. The contents of that report and her Honour's findings are the subject of grounds of appeal so I will defer consideration of them. 11 The applicant gave evidence. He was asked what he thought about his conduct and stated: