Re Andrew David Tregonning v R [1985] FCA 11 (6 February 1985)

FEDERAL COURT OF AUSTRALIA

Re: ANDREW DAVID TREGONNING
And: THE QUEEN
No. ACT G 324 of 1984
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Fox J.
Blackburn J.

CATCHWORDS

Criminal Law - Appeal from sentence - Whether sentence excessive - Considerations which apply in fixing non-parole period.

Probation and Parole Act 1983 (N.S.W.)

Probation and Parole Regulation 1984 (N.S.W.)

HEARING

CANBERRA
6:2:1985

ORDER

1. The sentence of five years imprisonment be confirmed.

2. The non-parole period ordered by the trial judge be set aside and in lieu thereof the appellant serve a
non-parole period of two years.

DECISION

The appellant, Andrew David Tregonning, appeals from a sentence and non-parole period imposed in the Supreme Court of the Australian Capital Territory on a charge to which the appellant pleaded guilty. The appellant was charged with one Stephen Andrew McKenzie of robbing Christopher Byron Carter of a sum of cash and immediately afterwards using corporal violence upon him. Mr. McKenzie also pleaded guilty but there is no appeal by him before us.

2. The facts are that at about 2:30am on Friday, 9 December 1983, at a discotheque in Canberra City the two accused agreed between themselves that they would rob Christopher Byron Carter. In furtherance of their plan Mr. Tregonning, pretending to be a homosexual, invited the victim who was a homosexual, to his flat to engage in homosexual activities between the three of them. Mr. Carter agreed. They went to the flat and upon entering the flat Mr. Tregonning suggested to Mr. Carter that he remove his clothes, which he did, and in the presence of the two accused commenced masturbating.

3. Both accused then proceeded to rain punches upon Mr. Carter and Mr. Tregonning suggested to Mr. McKenzie that he go through the victim's clothes, which Mr. McKenzie did taking $7 from the clothing, giving $5 to Mr. Tregonning. Thus they had achieved their purpose of robbing the victim but they did not desist. They then proceeded to terrify and humiliate him. Mr. McKenzie produced a pen knife from his pocket and ran it up and down the victim's legs in a threatening way. Mr. Tregonning also produced a knife and presented it to the victim's face and threatened him with injury by presenting it to his genital area. Mr. McKenzie then inflicted a stab wound to the victim's right ankle which required two stiches. At some time Mr. Tregonning went to the kitchen of the flat and came back with a saucepan of water and tipped the contents over the victim. He then hit the victim on the head with the saucepan, inflicting a serious scalp wound about 5 centimetres long. He made threats to kill the victim and dragged him to the kitchen and ordered him to sit on the floor. In dragging him to the kitchen, Mr. Tregonning inflicted further injuries on the victim. His legs were kicked apart by both accused. He was punched again and kicks directed to his genital area, at least by the accused McKenzie. The victim managed to escape naked. He was chased by the accused, Mr. Tregonning, but according to what Mr. Tregonning told the police, he was so drunk he could not chase him and gave up the chase.

4. Mr. Carter raised the alarm at a nearby bakery. The accused both returned to the discotheque where they drank more alcohol. They were apprehended by police and both admitted their complicity in the offence. The sentencing Judge was satisfied they were heavily intoxicated by alcohol at the time.

5. Both accused pleaded guilty and were sentenced to five years imprisonment with a non-parole period of three years.

6. The appeal before us was brought against the sentence upon the ground that it was manifestly excessive; that his Honour erred in according too much significance to the aspect of general deterrence in the imposition of sentence and too little weight to the subjective circumstances generally of the appellant; that his Honour erred in not finding expressly that the behaviour of the appellant in committing the offence was in part the result of brain damage which was diagnosed subsequent to the commission of the offence; and, that his Honour erred in failing to attach any or any sufficient weight to the youth and good work record and changed medical situation of the accused.

7. In relation to the non-parole period fixed, it was submitted that his Honour erred in taking into account in fixing the non-parole period likely or possible remissions under the Probation and Parole Act 1983 (N.S.W.) and the Regulations made thereunder.

8. The sentencing Judge took into account that Mr. Tregonning was 24 years of age and was married. He had been married for some five years and had one child. He had been addicted to heroin in the past and at least part of the motivation for robbing Mr. Carter was to obtain heroin which he knew was available at the discotheque. He was also addicted to alcohol in a heavy way for a number of years. He had a number of convictions and findings of guilt as a juvenile, including a finding of guilt for assault occasioning actual bodily harm and three convictions of assault in the Court of Petty Sessions. The sentencing Judge also took into account the fact that Mr. Tregonning had been diagnosed as being an epileptic with brain damage and commented that it was very sad but apparently with the use of drugs his disabilities were now under control. He noted that Mr. Tregonning had a good work record and had been well regarded by employees and people he had worked in close contact with, that he had shown remorse and that he was no longer addicted to heroin. The Judge considered there was some prospect of rehabilitation in his case and regarded it as very significant that he had his own family to assist him.

9. Turning to the question whether the sentence imposed was excessive it appears to me that no ground has been shown for interference with the exercise of the sentencing discretion by the trial Judge. As to the various matters in the notice of appeal raised, it is suggested that the Judge erred as to the weight to be attached to deterrence, in the view which his Honour took of the brain damage and in the weight which his Honour placed on the youth, good work record and changed medical situation. However, his Honour referred to all of these matters and clearly had them in mind. It is not easy to determine the degree of weight which he attached to particular factors. In my view it has not been shown that he was in error in any of these respects. I do not consider that the head sentence should be interfered with.

10. Turning to the non-parole period of three years fixed by the sentencing Judge: while he did not develop his reasoning in this particular case when fixing the non-parole period, he had declared his attitude prior to this, particularly in the case of The Queen v Raspovic of 13 May 1983, unreported. His Honour there declared his view to be that since the Probation and Parole Act 1983 (N.S.W.) and the Probation and Parole Regulation 1984 (N.S.W.) had provided for automatic remissions in respect of non-parole periods, that he should take this into account in fixing a non-parole period so as to ensure that a proper minimum period of detention in gaol was spent by the accused. While it is not clear what effect this had on the non-parole period as a matter of arithmetic in the present case, it may be inferred that it led to some increase. This was an error. See Paivinen v The Queen (6 February 1985; unreported). For this reason I consider the Court on this appeal should form its own view as to the proper parole period. I would fix two years and allow the appeal to that extent.

This is an appeal against the sentence imposed on the
appellant in the Supreme Court of the Australian Capital Territory for an offence of robbery with violence, which took place on 9 December 1983. He was one of two co-accused, but the other, a Mr. McKenzie, has not appealed. They both pleaded guilty.

2. The appellant, acting in concert with McKenzie, met the victim in the bar of a hotel in the early hours of the morning and later invited him to the appellant's home with a view to robbing him. They had concluded, correctly, that the victim was a homosexual, and homosexual behaviour was proposed. Shortly after entering the appellant's home, the victim was invited to undress, which he did. He commenced masturbating. The appellant then produced a pocket knife, placed the blade of the knife at the victim's throat and up his nostrils, and made it plain to him that he had been "hassled", meaning thereby that the real purpose was to rob him. One of the accused went through his clothes, and found an amount of twenty dollars, or slightly more. The victim was humiliated in various ways, and threatened by both the accused with knives. McKenzie in fact used his knife to inflict some wounds on the naked body of the victim. The victim was otherwise hit and dragged about. After a while he escaped, unclothed, and reported the incident. The two accused returned to the hotel bar, but the appellant was later apprehended at his home.

3. The appellant is twenty-five years of age, and is a labourer by occupation. He completed the School Certificate in Canberra in 1976, and has had several jobs since then. He gained a position in the Public Service as a clerical assistant in August 1982. His work was satisfactory but he was discharged in May 1984 as medically unfit. A few months later he obtained employment with a Canberra firm, and this continued until his present conviction. He married in 1980, and there is a child of the marriage. The appellant had been taking heroin for varying periods of time since he was seventeen years of age, but says that he stopped taking drugs in January 1984. He had been smoking marihuana since about 1975. In 1983 he commenced methadone treatment, but he did not complete the programme. He has been consuming alcohol since he was fifteen, and was at the time of the offence, according to his own description, drinking heavily. It is said that the money was stolen (in December 1983) to support his drug habit.

4. When eight years of age, the appellant was diagnosed as suffering from epilepsy. He is said to have averaged five or six grand mal seizures a year, but the last was apparently just after the offence was committed. He gets "minor fits" usually lasting up to a few minutes, about weekly. He has been advised to take 400 mg of dilantin at night, but often forgets to do so, or in the past has forgotten to do so. Recent examination has disclosed brain damage, apparently in the frontal lobe area, and possibly in some other area or areas as well. The brain damage and epileptic condition are likely to have led to behavioural problems. Dr. Knox (a psychiatrist) gave opinions, not challenged medically, at successive stages of the neurological and psychiatric investigation of the appellant. I quote parts. The emphasis is added.

Letter of 3 April 1984

5. "I believe that Andrew David Tregonning acted as he

did in the early hours of 9 December 1983 as an
expression of ongoing personality disturbance. I
believe that your client also acted under the influence
of alcohol on this occasion, having consumed twenty
alcoholic drinks in the course of that evening.

I believe that your client is capable of stable,
balanced behaviour during much of his time when he is
not consuming alcohol or other drugs. When however he
is intoxicated your client has shown several examples in
recent years of aggressive, uncontrolled behaviour. I
believe the incident of 9 December 1983 is a further
example of this uncontrolled behaviour under the
influence of alcohol.

I note that your client has suffered from epilepsy
since the age of seven. While this man's Grand Mal and
Petit Mal epilepsy have been stresses throughout his
life which have no doubt contributed to his personality
disturbance, I do not believe that they played a large
part in his behaviour on 9 December 1983. It would be
fair to say however since your client suffered an
epileptic fit in the early hours of 9 December 1983
following the events discussed above, that he may have
been feeling some pre-epileptic irritability in the
hours preceeding (sic) the epileptic fit. I note that
your client had not used his anti-epileptic medication
on the evening of the alleged offences. While your
client's possible nervous irritability on that occasion
may have contributed to his behaviour, I do not believe
that the contribution was a major one. Your client
gives no past history of Temporal Lobe Epilepsy, in
which the epileptic discharge takes the form of abnormal
behaviours. Your client's epileptic type has been a
more straight forward Grand Mal and Petit Mal one with
episodes of convulsions and at other times 'absences'.

I believe that your client gives a history which
points towards a gradual maturing in his personality in
recent years, and this is especially indicated by his
capacity to hold down regular employment during the
course of the last two years. However under the
influence of drugs and alcohol your client continues to
behave most inappropriately.

While I believe that your client was able to form
intent on the occasion of the alleged offences, I
believe that his capacity for rational thought was
severely impaired by the amount of alcohol he had
consumed on that occasion.

Letter of 13 August 1984

6. "I now have to hand your letter of 30 July 1984 and

the accompanying report prepared by the clinical
psychologist, Tom Sutton, dated 10 July 1984.

Mr. Sutton concludes his report with the statement,
'Test results indicate the presence of brain damage.'
Psychometric tests carried out by Mr Sutton were
particularly oriented to assessing frontal lobe
functions; the area where Dr Andrews had noted EEG
abnormalities. Mr Sutton was of the opinion that brain
damage may also have been present in areas other than
the frontal lobe, although his tests were not
specifically directed to measure such possible damage.

Most likely such damage has been present in your
client since childhood, and is the origin of his
epilepsy, which first began at age 7. Ongoing
epileptic convulsions throughout your client's
childhood and early adult life may have contributed to
this brain damage, by way of low oxygen levels in the
brain at the time of these convulsions.

It is my opinion that your client's personality
disturbance throughout his childhood and early adult
life has in part flowed from this underlying brain
damage. I noted in my report of 3 April 1984 your
client's poor educational performance beginning in
primary school. Your client began to manifest
behavioural problems at this time."

7. Dr. Colin Andrews, Neurologist, also reported in a series of letters. I quote parts, the emphasis being added by myself.
Letter of 1 May 1984

8. "You will remember from our telephone conversations,

that his EEG showed some definite abnormality in the
left frontal area of the brain and I beliee (sic) that
the cause of his epilepsy is likely to be due to brain
damage - probably in the region where the EEG was
abnormal.

If this assumption is correct, I believe he has frontal
lobe impairment and this leads to disinhibited
behaviour, which of course, can explain some of the
recent events."

Letter of 6 August 1984

9. "Tom Sutton concludes that the testing reveals the

presence of brain damage. He feels that there probably
is some frontal lobe impairment and suggests also more
generalised involvement.

This would correlate with the clinical history, the
E.E.G. abnormality and my hypothesis that he is
disinhibited because of cerebral impairment. This
could explain why some of his behaviour has been
anti-social and irresponsible."

10. It seems that due to his medical condition the appellant suffered from a significant degree of personality disorder. At the time of the offence he may have been suffering a degree of pre-epileptic irritation, and the permanent brain damage probably contributed to the actions for which he was charged. Alcohol also contributed, probably in major degree, but it is a reasonable inference that the consumption of excess alcohol may have been induced by his medical condition.

11. The appellant has a criminal record dating back to the time he was fifteen. The offences in recent years have not been serious, most having been of drunkenness, except that in February 1984 he was convicted on two charges of assaulting police in 1982, and was sentenced to three months hard labour on each.

12. I quote part of the evaluation by the welfare officer in the present case:

"In addition to his use of drugs and alcohol, his
epilepsy has been a major factor for most of his life,
influencing his ability to function both mentally and
emotionally. This seems apparent in his low tolerance
level, and until recent months, his reluctance towards
changing his behaviour in any way.

Despite these factors, however, he had been able to
maintain a satisfactory level of performance at his
work between August 1982 and December 1983. As
previously noted, Andrew has remained drug and alcohol
free since January 1984. Mr Bendell has commented that
after Andrew returned to duty on 27 March 1984 his
attitude to work and his performance had shown a marked
improvement.

The sincerity of this change of attitude and behaviour
as well as Andrew's expressed intention to maintain a
positive and responsible life-style are difficult to
assess, given his past record and behaviour. It is
considered doubtful whether he can maintain his
motivation without drug counselling, as well as
continued treatment for his epilepsy. It does appear
that when he is free of stressful situations he is able
to remain free of major problems with alcohol and drug
use, and able to function very adequately, given his
limitations.

It is considered that the supervision of a Probation
and Parole Officer could provide additional support to
Andrew on the basis of counselling and guidance towards
dealing with his future. This will be particularly
helpful if Andrew, in his resolve to overcome any
dependence on alcohol or other drug use, is willing to
co-operate with specialist counsellors in that regard."

13. There is strong evidence from his father, with whom he has not always had an easy relationship, of his disgust and contrition concerning the circumstances of the offence. He has himself given sworn evidence to this effect.

14. The learned judge sentenced both accused to five years imprisonment, with a non-parole period of three years. With the normal remission of one-third provided for by the regulations, he should be eligible for parole after two years.

15. The question is whether the sentence is too severe, so far as concerns the present appellant. The principles upon which an appellate court proceeds when reviewing sentence are too well known to need repetition. It does not simply substitute its own view of what is appropriate.

16. In the present case I am of the view that the learned judge failed to give adequate consideration to the factors to which I have referred, and their effect. He said:

"As Mr. Salmon has put, it seems that there may be
some physical reason for his inability to control
himself. He has been diagnosed as being an epileptic
and with brain damage. That is very sad, but
apparently with the use of drugs, his disabilities are
now under control."

This passage in my view understates the effect of the medical evidence, and gives insufficient weight to it. His Honour went on:

"He has a good work record. He has been well
regarded by employers and people that he has worked in
close contact with and he seems to have some aspects of
his personality which are quite congenial. I accept
that he has shown remorse since the commission of the
crime and that he is no longer addicted to heroin. I
take into account also that he had pleaded guilty and
that there is some prospect of rehabilitation in his
case. I certainly regard it as very significant that
he has his own family and an extended family - his
wife's family - to assist him."

17. The offence was of a disgusting and degenerate nature, involving physical maltreatment, and ordinarily would merit severe punishment. It was planned. It seems plain however that, apart from the effects of the alcohol consumed, there was diminished responsibility. This latter aspect, as I have said, does not seem to have been taken into account adequately by the learned judge. I am of the view that the head sentence should be four years, but I will not dissent from the view, which I understand to be held by the other members of the Court, that the sentence of five years should stand.

18. The Full Court, in R. v. Paivinen (as yet unreported), has recently dealt with the effect of regn. 18 of the Probation and Parole Regulations 1984 (N.S.W.) on the fixing of a non-parole period. It seems likely that His Honour adopted the same approach to the determination of the non-parole period in this case as he had in R. v. Paivinen, where the Court held he had been in error, and the period he fixed was excessive. In determining the non-parole period I have in mind the recommendation concerning a substantial period of non-custodial supervision. Doubtless His Honour did also, but he probably added 50 per cent to compensate for the application of regn. 18. I would reduce it to two years, to date from the date of sentence by His Honour.

I respectfully agree with the Chief Judge that no ground has been shown for interference with the exercise of the sentencing discretion by the learnead trial judge in regard to the head sentence.

2. In regard to the non-parole period, by views are those which I have expressed in the appeal of Paivinen. I do not consider that the learned trial judge was in error. But if I were wrong in this, I would approve of 2 years as the correct non-parole period.

3. I would dismiss the appeal.