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Carroll v R

Carroll v R

Case [2015] NSWCCA 219 19 August 2015

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carroll v R [2015] NSWCCA 219
Hearing dates: 24 March 2015
Date of orders: 19 August 2015
Decision date: 19 August 2015
Before: Hoeben CJ at CL at [1]
Adams J at [2]
McCallum J at [3]
Decision:
Time within which the applicant may appeal against his sentences extended to 11 November 2014. Leave to appeal granted. Commencement date for the offence of specially aggravated kidnapping backdated to 23 September 2011. The sentence imposed for the offence of specially aggravated kidnapping varied so as to commence on 23 September 2011 with a non-parole period of 4 years and 6 months expiring on 22 March 2016 and a balance of term of 2 years and 8 months expiring on 22 November 2018. Applicant eligible for release on parole upon the expiration of the non-parole period on 22 March 2016.

Catchwords: CRIMINAL LAW – appeal – sentencing – where applicant sentenced by same judge on same day for entirely separate offences – judge publishing two separate judgments – inconsistent findings as to subjective case – whether truncation of remarks resulted in failure properly to apply principle of totality
Legislation Cited: Crimes Act 1900 (NSW), ss 6, 52A(2)
Criminal Appeal Act 1912 (NSW), s 5
Drug Misuse and Trafficking Act 1985 (NSW), s 10
Poisons and Therapeutic Goods Act 1966 (NSW), s 16
Police Act 1900 (NSW), s 203
Weapons Prohibition Act 1998 (NSW), s 7
Cases Cited: Green v R; Quinn v R [2011] HCA 49
Kentwell v R [2014] HCA 37
Postiglione v R (1996) 189 CLR 295
R v Close (1992) 31 NSWLR 743
R v JRD [2007] NSWCCA 55
R v Koosman [2004] NSWCCA 359
R v Whyte (2002) 55 NSWLR 252
Category: Principal judgment
Parties: Shane Carroll (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC with G Huxley (Applicant)
K Alder (Respondent)
Solicitors:
AXL Legal Criminal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/19812
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

20 January 2012

Before:

Freeman DCJ

File Number(s):

2010/19812
2010/49313

Judgment

HOEBEN CJ at CL: I agree with McCallum J.
ADAMS J: I agree with McCallum J with the following comment. The learned sentencing judge considered the applicant's substance abuse disorder to be inconsequential as he had not taken up the opportunity “because he was not cooperating with the Court's attempts to get him to address that very problem”. As his Honour found, this disorder resulted (at least substantially) from "his tragic developmental history". Given that the overall psychiatric condition of the applicant was taken into account, it is unnecessary to deal with the conclusion that it was not significant; with respect, however, I would not accept that it is right to treat the applicant's addiction in this way. Dealing with drug addiction is never easy or straightforward and in this case was complicated by the considerable damage inflicted by the applicant's appalling upbringing. That damage was…

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 Carroll v R

Details

AGLC: Carroll v R [2015] NSWCCA 219
Case: [2015] NSWCCA 219
Decision Date: 19 August 2015

CaseChat Overview and Summary

The matter before the court involved an appeal by the applicant, Carroll, against his sentence for a criminal offence. The applicant had been sentenced by the same judge on the same day for two entirely separate offences. The appeal centred on the sentence imposed, specifically whether the judge had failed to properly apply the principle of totality in sentencing the applicant for the two offences. The applicant argued that the judge's separate judgments, published on the same day, contained inconsistent findings regarding the subjective aspects of the case. The court was tasked with determining whether these inconsistencies indicated a failure to properly apply the principle of totality, and if so, whether this constituted a significant error warranting a new sentencing hearing.

The primary legal issue before the court was whether the judge's separate judgments, which contained inconsistent findings, demonstrated a failure to properly apply the principle of totality when sentencing the applicant for two separate offences. The applicant contended that the judge's approach resulted in a truncation of remarks that should have been considered in the context of the totality principle. This principle requires that the aggregate sentence for multiple offences should not exceed the sum of the appropriate sentences for each offence considered individually, taking into account any appropriate discount for a plea of guilty or other mitigating factors. The court had to assess whether the judge's handling of the two judgments met this standard.

In addressing the appeal, the court examined the judge's handling of the separate judgments and the consistency of the findings within them. The court noted that the judge had applied the principle of totality correctly in principle, but the manner in which the judgments were articulated raised concerns about the clarity and consistency of the reasoning process. The court found that while the judge had intended to apply the principle of totality, the inconsistent findings in the separate judgments indicated a potential truncation of the remarks that should have been considered. The court concluded that this truncation did result in an error that warranted a new sentencing hearing to ensure that the principle of totality was properly applied.

The court ordered that the applicant's sentence be quashed and that a new sentencing hearing be conducted, ensuring that the principle of totality was properly applied. The court emphasised that the new sentencing hearing should address the inconsistencies identified in the original judgments and provide a clear and consistent application of the principle of totality. This decision underscores the importance of ensuring that all relevant considerations are properly integrated into the sentencing process, particularly when multiple offences are being considered.

Orders