District Court New South Wales Medium Neutral Citation: R v Tregeagle [2015] NSWDC 188 Hearing dates: 24 July 2015 Date of orders: 24 July 2015 Decision date: 24 July 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period 16½ years and a head sentence of 22 years. Catchwords: CRIMINAL LAW – Sentence - Armed robbery - Attempted armed robbery - Inflict actual bodily harm - Deprive liberty - Wounding with intent to murder - Significant physical and psychological harm to victims Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: R v Henry (1999) 46 NSWLR 346; (1999) 106 ACrimR 149 Category: Sentence Parties: The Crown Lindsay Michael Tregeagle Representation: Counsel: B Campbell – Crown W.J. Wilcher - Offender Solicitors: Director of Public Prosecutions CDM Lawyers - Offender File Number(s): 2013/271083 SENTENCE 1. HIS HONOUR: Over a four month period in 2013 the offender Lindsay Michael Tregeagle committed seven very serious offences. At the time he was but twenty-two years of age and he had given no indication before then that he was the sort of person who would threaten people with violence and then try to kill someone merely for his own financial gain. It is remarkable that he committed even a single offence and astounding that he kept going, injuring people as he did so, trying to kill one particular person, until he was fortunately stopped by police. 2. He has now pleaded guilty to those seven offences. Three are offences of armed robbery, one is an offence of attempted armed robbery, one is an offence of armed robbery and inflict actual bodily harm. Then there is an offence of robbery and depriving liberty and, the most serious offence, wounding with intent to murder. These are, as the maximum penalties show, some of the most serious offences in the criminal calendar. Indeed, the last offence carries a maximum penalty of twenty-five years and has a standard non-parole period of ten years. Of course, I have taken into account the maximum penalties in each case and the standard non-parole period in one case in determining the appropriate sentence. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 3. The offender's criminal behaviour began on 2 May 2013 when the offender robbed a woman who was working at a bottle shop. On this occasion the offender went into the bottle shop dressed in disguise. He had a black hoodie jumper on with the hoodie pulled over his head, as well as a balaclava. He was carrying a knife straight out in front of him. He said to the victim, "Don't look at me. Just give me the money out of the till. Don't say anything." The victim cooperated. She did what he asked. She asked, "Do you want the coins?" The offender said, "No. I want Bundy rum." So as well as taking the money, he took three bottles of Bundaberg rum. He then told her to get on the ground and put her face on the carpet. He told her to, "Stay down and don't get up." He then ran away, taking with him about $1,500 in cash and the alcohol. 4. Obviously emboldened by his success, he committed another armed robbery a relatively short time later on exactly the same person. He again was disguised wearing a hoodie and a balaclava and again he told her, whilst armed with a knife, "Just give me the money. Don't look at me. Give me the money." Thing did not go as smoothly though. The offender noticed that there were no ten dollar notes handed over, so he accused the victim of hiding them. She said, "I don't have any ten dollar notes." He said, "You are lying. You must have ten dollar notes. You must be hiding them. Give me the ten dollar notes." He then pointed the knife towards the coin tray. The victim took the coin tray out and took some fifty dollar notes from underneath. She also removed some one hundred dollar notes and handed them to the offender. As a parting gesture, he said to her, "Get on the floor, bitch. Put your face in the carpet." She did so. The offender ran away, taking this time $1,200 in cash. 5. The next offence is the attempted armed robbery. This time the offender went into a shop quite early in the morning, 6.15am. He seemed to be armed with a different knife. This one looked like a breadknife and had a serrated edge. He said to the victim who was working in the shop, "Give me your cash." Mr Keegan, as he was the victim, said, "I've got no cash. Piss off and get out of the shop." He picked up a tomato stake and started to fend the offender off. Mr Tregeagle was not to be deterred. He said, "Give me the cash. I know you've got cash." Mr Keegan said, "No, I don't." The offender waved the knife in the direction of Mr Keegan, who used the tomato stake to defend himself, trying to dislodge the knife from the offender's hand from a distance. He managed to hit Mr Tregeagle's hand with the tomato stake and yell for help. Eventually the offender gave up. He ran away, hopped on a pushbike and cycled out of the area. No money was obtained. 6. The offender did not take this defeat well. He returned a short time later to the same shop and the same man, Mr Keegan. This time he was armed with a baseball bat and this time there was no question of merely threatening Mr Keegan with a weapon in an effort to get him to provide money. The baseball bat was used almost immediately after the offender went into the premises. He swung it onto Mr Keegan's left leg, causing him to fall to the ground. It was not good enough for the offender that he had achieved a substantial part of his objective with Mr Keegan lying on the ground. He continued to hit him with the baseball bat including Mr Keegan's left leg and his left arm which he was using to defend himself. Eventually the offender stopped. Mr Keegan stood up and the offender said, "Now give me your cash." Mr Keegan opened the cash register and said, "There's the cash." The offender said, "You get it out," and so Mr Keegan did. Despite the fact that Mr Keegan was actually cooperating, the offender hit him again with the baseball bat, this time near the elbow area. Mr Keegan, not unnaturally, said, "Stop hitting me. I'm getting the cash for you." He opened the till and the offender said, "Get it out." He said, "Where's all your fifty dollar notes?" Mr Keegan lifted the tray out to show that he had none, and the offender ran out of the store. This time he got $700. Mr Keegan was taken to John Hunter Hospital where it was found that he had fractures to his leg and his arm as a result of the attack. 7. Next we move to another armed robbery offence, this time committed on 15 August 2013. The premises in this case were a video store. Once more, the offender was disguised with a hoodie and a balaclava and this time he had a knife. He came into the premises about 7.45 and said to the lady working there, "Give me the money, bitch." She did so. She took the money out, despite the fact that the offender was very close to her, pointing the knife at her. She said, "Where do you want me to put the money?" She was told to throw it on the counter and again the offender said, "Where's the rest of it? Where's the fifties?" He continued to look for fifty dollar notes. He said, "Where's the rest of it?" The lady said, "You've got it all. There's no more. That's it." He pushed her into the back corner of the store. She fell over and hit her left forearm and hand. He continued to demand money. "Where's the money?" She said, "You've got it. There's no more." The telephone started to ring. This presumably deterred the offender from further arguing the point as to where the money was. He told her not to answer the phone, not to ring the police, and left. Ms Becker suffered a cut to her left thumb and bruising to her left forearm. He got $700 from this robbery. 8. Then we come to the robbery of a newsagency where a Ms Noakes was working and a Mr Jenkins, who was seventy-one years of age, was helping. The newsagency opened very early and Ms Noakes was working there by herself. The owner of the newsagency asked Mr Jenkins to go and just sit with her to provide some security. I saw some closed-circuit TV footage depicting what happened in this offence. Ms Noakes is seen to be behind the counter preparing for the day whilst Mr Jenkins sits on a seat across from her reading a newspaper. The offender came into the store wearing, again, a hood and a balaclava. He had a knife which is described in the facts as about 12 inches long and which appeared to me to be a significant size, at least that length. He ran straight up to Mr Jenkins, grabbed him by the arm and shoulder and held the knife by the handle, placing the tip of the blade against the back of Mr Jenkins' neck. He held it in place. He said, "Don't move. Just give me the money. I just want the fifties." Ms Noakes took the notes from the till. The offender demanded notes from the other till, the post office section of the newsagency. So Ms Noakes took the money from there. All the time this was happening, the offender was menacing Mr Jenkins by holding the knife against his neck. Eventually he took the money and fled. Ms Noakes can be seen in distress as he leaves. 9. Then we come to the most serious offence, as if what I have just described was not bad enough. On this occasion, once more, the offender entered a store intending to rob it. He went into a bottle shop at about 6.45pm where Mr Hamilton, the owner of the store, was working. I saw CCTV footage of this offence as well. As soon as the offender entered the store, he began menacing Mr Hamilton with the knife, waving it around in front of him. He said, "Give me the fucking money. Give me the fucking money," as he moved closer and closer towards where Mr Hamilton was standing behind the register. Mr Hamilton told the offender, "Fuck off," and he continued to express his displeasure about the circumstances that presented themselves to him. The offender was not deterred. He kept yelling, "Give me the money." Mr Hamilton had his arms up to protect himself and so the offender started to lunge towards him, swinging his knife as he did so. He picked up a bottle of spirits and threw it at Mr Hamilton. Mr Hamilton then found himself cornered in behind the counter. He had nowhere to go but forward, and so he did so, holding up his arms in a defensive stance. He grabbed the offender by his jacket and tried to wrestle him out of the way. In the process, the jacket came off, and so did the balaclava. Fortunately, this exposed the offender's face to the CCTV cameras and to Mr Hamilton. They wrestled and the offender managed to push Mr Hamilton over between a wine display and the fridge. Mr Hamilton fell onto the floor, smashing bottles of wine. 10. Then this happened. The offender stood over Mr Hamilton while he was on the floor. He lunged at Mr Hamilton with the knife and although Mr Hamilton tried to defend himself, he was unsuccessful. The offender stabbed Mr Hamilton, holding him down, three or four times. Not content with that, he was kicking and punching Mr Hamilton as well. One might have thought that having stabbed Mr Hamilton, as he did, that would be enough, but it was not. He got off and started to walk away. Mr Hamilton, injured significantly, was bleeding on the floor. It was then that the offender decided to kill Mr Hamilton. He turned back, went over to where Mr Hamilton was lying on the floor and thrust the knife into his torso area a further three or four times. As if there was any doubt as to what the offender intended, he shouted, "Die. Fucking die," as he did so. He then fled the store. 11. As a result, Mr Hamilton was significantly injured. He had a fractured rib, a pneumothorax, the upper lobe of one of his lungs was lacerated, he had a left haemopneumothorax. Eight stab wounds were found to his left shoulder blade, left side of his back, left hip area, left upper arm, abdominal region, chest and left thigh, as well as lacerations to his hands, arms, neck and cheek. 12. The images from the last offence after the offender's balaclava and hoodie were removed were circulated, and information soon became made known to police as to the identity of the offender. He was arrested at work. He tried to modify his appearance by getting a tattoo on the back of his neck but clearly, given the video images and the fact that his fingerprints were found on the bottle that he had thrown at Mr Hamilton, there was not much doubt as to who the offender was. A search of his premises also found the knife that was used to stab Mr Hamilton, Mr Hamilton's DNA being found on it. 13. As a result of the offender's terrible crimes, a number of people have been harmed. Victim impact statements were tendered by the Crown. Mr Jenkins reports that he had nightmares and was unable to sleep for a few months, thinking back to the robbery. Mr Hamilton, understandably, seems to have fared worse. He is thinking of selling the bottle shop, not surprisingly. He has permanent scarring. He is in permanent pain from injuries to his left side torso. Also not surprisingly, he is more easily spooked, frightened and more suspicious of new customers. He has to take medication for depression and anxiety. 14. These consequences were entirely foreseeable. I have no doubt also that harm was occasioned to other victims too. I have mentioned the physical harm as I went through my description of the offences but there is also psychological harm too which is an almost inevitable consequence of being the victim of an armed robbery. For these reasons, armed robberies are considered very serious offences. 15. So why did the offender at twenty-two with no real criminal history decide to act as he did? A psychologist who interviewed him reported that the offender said that he was abusing alcohol and in financial difficulties at the time, financial difficulties apparently of his own causing as he had begun to gamble to excess. Despite the fact that he had two jobs, he was losing money. So the offender thought the best way, apparently, that he could deal with his problem was to commit this series of offences. 16. The offender has no real excuse in his upbringing as to why he would have done what he did. He is supported and loved by his family. His parents separated when he was in his mid teens and his mother was distressed by that circumstance, attempting suicide on a couple of occasions. The offender did not speak to his father as a result for some time but now that he has been in custody he has re-established contact with his father. He was a good worker. His supervisor gave evidence today in support of him, saying that he would have him back, were he able to employ him. He seems to have been an industrious young man, managing, as I have said, to work two jobs, doing his jobs well and being rewarded for his efforts. 17. A great deal of time today was spent attempting to establish the offender's prospects of rehabilitation. The psychological report tendered on behalf of the offender and the psychological report obtained by the Crown in response were the subject of examination and cross-examination. It may be that the offender was having troubles with alcohol at the time but certainly his voluntary consumption of alcohol is not a mitigating factor. Even if there were not the statutory prohibition against taking self-induced consumption of alcohol into account as a mitigating factor, in the circumstances of this case where the most serious offence, the attempted murder case, came after a number of other offences where the offender was apparently intoxicated, demonstrates that in no way can the offender's self-induced intoxication be considered a mitigating feature. 18. There was some suggestion that post traumatic stress disorder may have had something to do with the offender's behaviour. The suggestion that PTSD may have been a factor arose from a claim by the offender that he had been sexually assaulted as a child. He did not give sworn evidence that that had occurred. He gave some details to the psychologist who interviewed him but there was no corroborative evidence. Quite whether he was telling the truth or not I simply do not know. I have no trouble at all accepting the circumstance that victims of sexual assault are reluctant to disclose it but in circumstances where the offender did not give sworn evidence, where he refused to be assessed and interviewed by a psychologist on behalf of the Crown, and where in at least one area he was exaggerating his responses to the psychologist who did interview him, I am not satisfied on the balance of probabilities that the sexual assault even occurred. Even if it did, I see little connection between it and the commission of these offences. 19. Although there was a suggestion that sufferers from PTSD can experience angry outbursts, no friend or family member has reported any conduct of that kind. As well, the commission of these offences and his decision to go back and have another go at Mr Keegan with the baseball bat is contrary, as I understand it, to what would be expected from a sufferer of PTSD who might otherwise be expected to avoid threatening circumstances. 20. Ultimately, I cannot be satisfied that the offender has good prospects for rehabilitation. There is no doubt hope for the future and I do not want to diminish the good work that the offender has apparently been doing whilst in custody. He seems, from the evidence before me, to have continued his industrious attitude, which he displayed before going to gaol, inside gaol. He has done many courses. He has obtained certificates. I am satisfied that his desire to deal with the various issues which confront him is genuine. But given that these most serious offences effectively came out of the blue and were apparently committed all because of the offender's gambling problems, I would have to be satisfied on the balance of probabilities that he was not going to do the same thing next time he was short of cash. 21. I simply cannot make that finding in the offender's favour. That is not to say that he does not have any prospects of rehabilitation at all. I have got to decide under s 21A of the Crimes (Sentencing Procedure) Act whether his prospects of rehabilitation are good. I simply say that I cannot make that finding on the balance of probabilities. 22. I also take into account the offender's expressions of remorse. Once again I note that he did not give sworn evidence but the evidence which is before me suggests that he has expressed his remorse to a number of people. I am prepared to accept in his favour that he has feelings of regret for what his actions have done to the victims of his offending. 23. These are serious offences, as I have said repeatedly. There are a number of aggravating features. In all cases the victims were vulnerable by reason of their occupation. In all cases, there was a degree of planning, some more than others, for example, the return to visit Mr Keegan, sequence 5, an offence which seems to have been motivated by revenge as much as by a desire to rob Mr Keegan. The offences were all committed for financial gain. Weapons were used in every case, but I note that is a statutory aggravating feature, of course, for sequences 3 and 5. 24. The offender pleaded guilty at the earliest opportunity and so the sentences I impose upon him will be 25 per cent less than they would otherwise have been. I also note that when comparing these offences with the R v Henry (1999) 46 NSWLR 346; (1999) ACrimR 149 guideline, the four to five year sentence postulated in that case was for a plea of guilty of limited utility. Here the pleas of guilty were entered at the earliest opportunity and so the comparison of the offender's conduct with that postulated in Henry and the resulting sentence has to be looked at with that circumstance in mind. 25. The principle of totality, of course, applies. Were there total accumulation, a sentence of enormous proportions would be imposed upon the offender. I was asked not to impose a crushing sentence upon him. The submission was made that we do not just put people away and throw away the key. Well in some cases we do. In appropriate cases, people are given life imprisonment. In appropriate cases, sentences which can be described as "crushing" must be imposed. It is a fundamental rule in sentencing that the sentence imposed for an offence must reflect the objective gravity of an offender's misconduct. So if giving weight to that principle leads to a very long sentence, that has to be imposed, even if it could be regarded as crushing someone, even someone as young as the offender. 26. The submission was made that I would find special circumstances. No doubt there are matters capable of being regarded as special circumstances but the very length of the sentence that I must impose in this case provides a significant period of eligibility for parole which will be more than sufficient to deal with any issues that arise regarding the offender's rehabilitation at the end of his release from custody. 27. I have decided to impose an aggregate sentence. Were it not for that decision, I would have imposed the following sentences. Sequence 1, twelve years with a non-parole period of eight. Sequence 3, five and a half years. Sequence 4, four and a half years. Sequence 5, six years. Sequence 6, three years. Sequence 7, four and a half years. Sequence 8, four years. 28. The aggregate sentence I impose consists of a non-parole period of sixteen and a half years with a head sentence of twenty-two years. It is to have commenced on 6 September 2013. The non-parole period will expire on 5 March 2030, on which day the offender is eligible to be released to parole. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2015