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Carr v The Queen

Carr v The Queen

Case [2012] VSCA 299 12 December 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0134

PETER CARR	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH JJA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 November 2012
DATE OF JUDGMENT	12 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 299
JUDGMENT APPEALED FROM	DPP v Carr (Unreported, County Court of Victoria, Judge Montgomery, 11 May 2012)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant father and son co-offenders – Assault on security guards at nightclub – Early plea of guilty by co‑offender – Complex procedural history – Rejected offer by applicant to plead guilty – Entry of guilty pleas – Change to not guilty plea – Further guilty plea during trial – Utilitarian value of rejected offer to plead guilty – Parity – Application refused.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Ms C A Boston	Melasecca Kelly & Zayler
For the Respondent	Mr P B Kidd S.C. with Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
REDLICH JA:
WILLIAMS AJA:

On 13 March 2009, the applicant and his son and co-offender, Daniel Carr, were involved in an incident in which Lynsley D’Cruz was seriously injured and Mohamad Alhersh was injured at the Orange Whip nightclub in Ringwood. Both victims worked at the nightclub as security guards. The applicant and his son each entered guilty pleas in relation to charges arising out of the incident and were sentenced at different times by different judges of the County Court.

Daniel Carr pleaded guilty to recklessly causing serious injury to Mr D’Cruz and intentionally causing injury to Mr Alhersh, on the basis that he had struck Mr D’Cruz and had acted in concert with the applicant who had struck and injured Mr Alhersh. On 4 November 2010, Daniel Carr was sentenced by her Honour Judge Hannan as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Recklessly cause serious injury 15 years [Crimes Act 1958 (Vic) s 17] 18 months Base

2 Intentionally cause injury 10 years [Crimes Act 1958 (Vic) s 18] 8 months 4 months

Total Effective Sentence: 1 year 10 months, wholly suspended for 24 months

Non-Parole Period: Nil

Pre-sentence Detention Declared: Nil

6AAA Statement: 30 months, non-parole period of 18 months

After a complicated procedural history, the applicant was ultimately sentenced by his Honour Judge Montgomery on 11 May 2012. Like his son, he pleaded guilty to recklessly causing serious injury to Mr D’Cruz, but, whereas Daniel Carr had been sentenced for intentionally causing Mr Alhersh injury, he pleaded guilty to the less serious offence of recklessly causing him injury. The applicant’s guilty pleas were also entered on the basis that he had not struck either man, but had aided and abetted his son, who had struck both of them. The applicant was sentenced as follows on 11 May 2012:

Charge on Indictment Offence Maximum Sentence Cumulation

2 Recklessly cause serious injury (aid and abet) 15 years [Crimes Act

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 Carr v The Queen

Details

AGLC: Carr v The Queen [2012] VSCA 299
Case: [2012] VSCA 299
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case of Carr v The Queen involved the applicant, who was charged alongside his son in relation to an assault on security guards at a nightclub. The applicant had a complicated procedural history, which included rejecting an offer to plead guilty, changing his plea to not guilty, and eventually pleading guilty during the trial. The primary issue before the court was whether the applicant should be granted leave to appeal against his sentence, considering the complex procedural history and the rejected offer to plead guilty. The court had to assess the relevance of the rejected offer in the context of the applicant's sentence and whether it warranted granting leave to appeal.

The court found that the rejected offer to plead guilty did not have any significant utilitarian value in this case, as the applicant had eventually pleaded guilty during the trial. The court considered the principle of parity, which required that the applicant's sentence be proportionate to the sentence of his co-offender, who had entered an early guilty plea. However, the court held that the procedural history and the rejected offer to plead guilty did not provide a sufficient basis for granting leave to appeal against the applicant's sentence. The court found that the applicant's sentence was proportionate to his co-offender's sentence, taking into account all relevant factors.

As a result of the court's reasoning, the application for leave to appeal against the applicant's sentence was refused. The court found that there was no sufficient basis for the applicant to be granted leave to appeal, as the rejected offer to plead guilty did not have a significant impact on the outcome of the case. The applicant's sentence was considered proportionate to his co-offender's sentence, and the principle of parity was upheld. The court's decision highlighted the importance of assessing the utilitarian value of rejected offers to plead guilty in the context of sentencing and the need to maintain consistency in the application of legal principles.

Orders