Carroll v R - [2012] NSWCCA 118

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carroll v R [2012] NSWCCA 118
Hearing dates: 27/04/2012
Decision date: 08 June 2012
Before: Basten JA at [1]
Johnson J at [2]
Garling J at [3]
Decision:
(a) Leave to appeal granted.
(b) Appeal allowed.
(c) Quash the sentence imposed in the District Court of New South Wales on 25 November 2010.
(d) Sentence the applicant to a non-parole period of 4 years commencing on 28 January 2010 and expiring on 27 January 2014.
(e) Sentence the applicant to a balance of term of 2 years, expiring on 27 January 2016.
(f) Note the first day upon which the applicant is eligible for release on parole is 27 January 2014.

Catchwords: CRIMINAL - Sentence Appeal - Wounding with intent to cause grievous bodily harm - Failure to take into account highly relevant mental condition - Seizure disorder secondary to head injury - Probable frontal lobe damage diminishing capacity for self-control - Irrelevant material considered when finding offence above mid-range of objective seriousness - Deliberate and intentional conduct part of the offence - Failure to reflect discount for plea of guilty in the non-parole period - Failure to reflect finding of special circumstances - Resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Mulato v R [2006] NSWCCA 282
R v Hemsley [2004] NSWCCA 228
R v Koloamatangi [2011] NSWCCA 288
R v Verdins [2007] VSCA 102; 16 VR 269
Category: Principal judgment
Parties: Peter Carroll (applicant)
Crown (respondent)
Representation: Aboriginal Legal Services (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2010/24801
Decision under appeal

Date of Decision:

2010-11-25 00:00:00

Before:

Puckeridge ADCJ

File Number(s):

2010/24801

Judgment

BASTEN JA: I agree with the orders proposed by Garling J and with his reasons.

JOHNSON J: I agree with Garling J.

GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales, by his Honour Judge Puckeridge on 25 November 2010.

The applicant, Peter Carroll, pleaded guilty before Puckeridge ADCJ to one offence contrary to s 33(1)(a) of the Crimes Act 1900.

The offence related to the wounding by the applicant of Anthony Staunch with intent to cause him grievous bodily harm on 5 January 2010.

The maximum penalty for the offence is 25 years imprisonment. A standard non-parole period of 7 years applies.

The sentencing Judge imposed an overall sentence of 8 years and 3 months imprisonment with a non-parole period of 6 years commencing on 28 January 2010, which was the date upon which the applicant was arrested.

Facts

A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of these facts is set out below.

At about 8.50am on 5 January 2010, the victim, Anthony Staunch, was driving his courier van approaching the Niagara Park Shopping…

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 [2012] NSWCCA 118
Case: [2012] NSWCCA 118
Decision Date: 08 June 2012

CaseChat Overview and Summary

The appeal in Carroll v R involved the appellant who had been convicted of wounding with intent to cause grievous bodily harm. The case was brought before the court to review the sentence imposed by the primary judge. The appellant contended that the sentence was excessive, primarily due to the failure of the primary judge to consider certain mental health conditions, including a seizure disorder secondary to a head injury and probable frontal lobe damage, which the appellant argued diminished his capacity for self-control. Furthermore, the appellant argued that the primary judge had not appropriately considered the discount for a plea of guilty in determining the non-parole period, and had not given adequate weight to the finding of special circumstances.

The legal issues before the court were whether the primary judge erred in failing to take into account the appellant’s mental condition, whether the primary judge erred in not applying the discount for the plea of guilty correctly, and whether the primary judge erred in not considering special circumstances appropriately. The court had to determine if these errors warranted a re-sentencing of the appellant.

The court found that the primary judge had indeed failed to consider the appellant's mental condition, which was highly relevant to the sentencing process. The court held that the seizure disorder and probable frontal lobe damage should have been taken into account, as they could have influenced the appellant’s capacity for self-control. Additionally, the court found that the primary judge had not appropriately reflected the discount for the plea of guilty in determining the non-parole period. The court also held that the primary judge had not adequately considered the special circumstances, which should have warranted a lesser sentence. Consequently, the court ordered a re-sentencing of the appellant, taking into account the aforementioned factors.

Orders