Carberry v The Queen - [2013] ACTCA 20

ROBERT CARBERRY v THE QUEEN
[2013] ACTCA 20 (9 May 2013)

APPEAL AND NEW TRIAL – appeal against sentence – whether sentence manifestly excessive – objective seriousness of subject offence within range – appeal dismissed
APPEAL AND NEW TRIAL – appeal against sentence – rejection of expression of remorse – inadequate evidence for assessing remorse – appeal dismissed
APPEAL AND NEW TRIAL – appeal against sentence – assessment of parity between co-offenders – established difference between co-offenders – appeal dismissed

Crimes Act 1900 (ACT)

Postiglione v R (1997) 189 CLR 295
Lowe v The Queen (1984) 154 CLR 606

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 50 – 2012
No. SCC 367 of 2011

Judge: Higgins CJ, Gilmour J and Nield AJ
Court of Appeal of the Australian Capital Territory

Date: 9 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. ACTCA 50 – 2012
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 367 of 2011
  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT CARBERRY
Appellant

AND:THE QUEEN
Respondent

ORDER

Judge:  Higgins CJ, Gilmour J and Nield AJ
Date:  9 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The appellant is Robert Carberry. He has appealed from a sentence imposed upon him on 19 October 2012 by Burns J for the offence of recklessly inflicting grievous bodily harm upon the complainant, Mr JAL. The sentence was imprisonment for 6 years, reduced from 7 years on account of his guilty plea, apportioned into a non parole period of 4 years 3 months and a parole period of 1 year 9 months. The grounds of appeal are that:

(1) the sentence is manifestly excessive;

(2) Burns J erred in rejecting the appellant’s expression of remorse; and

(3) Burns J erred in his assessment of parity between the appellant and the co-offender, Christopher Colin Crawford.

As we have said, the offence committed by the appellant was that of recklessly inflicting grievous bodily harm upon the complainant. This is an offence contrary to s 20 of the Crimes Act 1900 (ACT), for which the prescribed penalty as at 22 August 2011 was imprisonment for a maximum of 10 years. We note that as and from 24 November 2011 the prescribed penalty has been imprisonment for a maximum of 13 years.

The circumstances in which the offence was committed are contained in the Statement of Facts dated 17 July 2012 provided to Burns J. Taken from that Statement, this is what happened.

At about 2:30pm on 22 August 2011 the appellant and Mr Crawford happened upon the complainant who was walking from D block to E block within the Ainslie Village in Campbell, in the ACT. After some words had passed between Mr Crawford and the complainant, the complainant attempted to open the door into E block, so as to leave the appellant and Mr Crawford,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carberry v The Queen

Details

AGLC: Carberry v The Queen [2013] ACTCA 20
Case: [2013] ACTCA 20
Decision Date: 9 May 2013

CaseChat Overview and Summary

The applicant, Carberry, appealed against a sentence imposed by the Supreme Court of Queensland. The appeal concerned the applicant's conviction for an offence, and the primary focus of the appeal was on the sentence itself, with arguments raised regarding its manifest excessiveness, the rejection of expressions of remorse, and the assessment of parity with co-offenders. The appeal was heard by Higgins CJ, Gilmour J, and Nield AJ.

The court was required to determine whether the sentence imposed was manifestly excessive, considering the objective seriousness of the offence. Additionally, the court had to assess whether the sentencing judge erred in rejecting the applicant's expressions of remorse, particularly in light of the evidence available for assessing such remorse. Finally, the court was tasked with considering whether the sentence was disproportionate when compared to the sentences imposed on co-offenders, given any established differences between their respective roles and culpability.

The court found that the objective seriousness of the subject offence fell within an acceptable sentencing range, and therefore the sentence was not manifestly excessive on that ground. Regarding remorse, the court concluded that there was inadequate evidence presented to properly assess the applicant's remorse, leading to the rejection of this ground of appeal. Furthermore, the court determined that there was an established difference between the applicant and his co-offenders, justifying a disparity in sentencing, and thus the parity argument failed.

Consequently, the appeal was dismissed.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.