Carroll v The Queen [2009] HCA 13 21 April 2009 S30/2009
ORDER
1. Appeal allowed.
2.Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 19 September 2008.
3.Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for rehearing by that Court.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with G A Bashir for the appellant (instructed by Legal Aid Commission of New South Wales)
D U Arnott SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Carroll v The Queen
Criminal law – Sentencing – Prosecution appeal against sentence – Where sentence said to be "manifestly inadequate" – Where no specific error of principle or law alleged and case said to fall within last category of error identified in House v The King (1936) 55 CLR 499, namely sentence "unreasonable and plainly unjust" – Whether Court of Criminal Appeal erred in concluding sentence manifestly inadequate – Distinction between fresh consideration of how appellant's conduct to be characterised, and evaluation of adequacy of sentence by reference to matters of fact different from those found by primary judge.
GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. The appellant pleaded guilty in the District Court of New South Wales to manslaughter. Outside a hotel where the appellant and friends had been drinking for eight to nine hours, the appellant head‑butted Luigi Criniti, a man who had also been in the hotel. Mr Criniti fell backwards onto the road and hit the back of his head on the roadway, fracturing the back of his skull. Ten days later Mr Criniti died.
In the District Court, Judge Flannery sentenced the appellant to imprisonment for a term of three years, to be served by way of periodic detention. A non‑parole period of 18 months was fixed.
The Director of Public Prosecutions appealed to the Court of Criminal Appeal against this sentence on the sole ground that the sentence was manifestly inadequate. The Court of Criminal Appeal (McClellan CJ at CL and Hislop J; Simpson J dissenting) held[1] that the appeal should be allowed and the sentence passed by the primary judge quashed. The Court of Criminal Appeal re‑sentenced the appellant to a non‑parole period to be served by way of full‑time custody of 18 months to date from 2 May 2008 (the date upon which the primary judge had sentenced him) with a balance of term of 18 months to commence on 2 November 2009. The Court ordered that the appellant be released to parole on 1 November 2009.
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.
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AGLC
Carroll v The Queen [2009] HCA 13
Case
[2009] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Crown against a sentence imposed on the respondent, Carroll, for manslaughter. The prosecution argued that the sentence was "manifestly inadequate" and that the Court of Criminal Appeal erred in upholding it. The case involved a fatal headbutt delivered by the then 20-year-old appellant to the victim following an altercation outside a hotel.
The central legal issue before the High Court was whether the Court of Criminal Appeal had correctly determined that the sentence imposed by the primary judge was manifestly inadequate. This required the High Court to consider the distinction between a fresh consideration of how the appellant's conduct should be characterised and an evaluation of the adequacy of the sentence by reference to factual matters different from those found by the primary judge. The High Court also had to assess whether the Court of Criminal Appeal had erred in its characterisation of the objective seriousness of the offence, particularly in light of differing factual findings from the primary judge.
The High Court allowed the appeal, finding that the Court of Criminal Appeal had erred. The Court noted that the Court of Criminal Appeal's conclusion that the offence was serious and not at the lower end of the objective seriousness scale was based on a characterisation of the facts that differed from the primary judge's findings. The High Court determined that the Court of Criminal Appeal had, in effect, undertaken a fresh assessment of the facts rather than simply reviewing the adequacy of the sentence. Consequently, the High Court set aside the orders of the Court of Criminal Appeal and remitted the matter for rehearing by that Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 19 September 2008.
3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for rehearing by that Court.
Background
Background to the litigation
Because the assessment of the objective gravity of the offence was critical to the reasoning of McClellan CJ at CL it is necessary to say something further about the facts of the matter.The facts The facts relevant to sentence, as found by the primary judge, can be summarised as follows. The appellant, his brother and a friend went to a hotel at about 1.00 pm on Sunday, 20 May 2007. They had lunch, consumed alcohol and watched the football. While at the hotel they socialised with two women. At the same time the victim, then aged 51 years old, and a companion of about the same age, were playing the poker machines. Shortly before the 10.00 pm closing time, one of the two women had a conversation with the victim and his companion in which the woman convinced the victim to collect the amount he had won on the poker machines. The victim gave the woman $50 to buy a round of drinks for her friends. She took the money, but the bar was closed, and she tried to return the money to the victim. He would not take it and suggested she try the bottle shop. A short time later the appellant left the hotel with his brother, his friend and the two women. They walked, as a group, towards the appellant's home. At about the same time the victim left the hotel and called out to the woman to whom he had given the $50, asking her to give it back. There was an exchange of words between the men in the appellant's party and the victim indicating that the money would not be returned. By then the victim was standing in or near the group and it was alleged that one of the men (not the appellant) pushed the victim, causing him to take one step back. The victim said, "I'll get a gun and shoot youse all". A bystander heard him say, "I'm going to kill your whole family". The appellant said to the victim, "You want to talk about guns" and head‑butted him in the face. As recorded at the start of these reasons, the victim fell back, struck his head, and later died.The appellant's personal circumstances The appellant was 20 years old at the time of the offence. His subjective circumstances were powerful mitigating considerations. The primary judge described him in her sentencing remarks in the following terms:"He had successfully negotiated high school where in his final year he had been a prefect, and had received both the Principal's Award, and the Community Spirit Award. He had never been a problem to his parents and was, according to his mother, always helpful and good humoured. He was in his second year of a plumbing apprenticeship and was a highly valued employee. He was the captain of his rugby league team and was renowned for stepping in to calm situations on the field before they got out of hand. In his 17 year playing career he had never been sent to the sin bin or sent off. He had certainly never been in trouble with the criminal law.In the light of all the material before me about this young man what occurred on the night of 20 May 2007 is inexplicable. He is unable to explain it. What is clear is that the events of that night have touched him deeply and irrevocably. He is no longer the carefree young man he was. He lives each day conscious that he has taken a human life. He suspended his apprenticeship as he felt it was unfair to his employer to keep working as he was too distressed, anxious and depressed to do the job properly. He stopped playing football as he felt emotionally unable to face people.He has been diagnosed as suffering clinically significant levels of depression and anxiety. He is troubled by thoughts of worthlessness, hopelessness, and personal failure. He has almost entirely ceased using alcohol. And yet to keep himself busy he sought and obtained labouring work which requires less concentration than his apprenticeship, and he has sought to deal with his emotional distress by undergoing treatment with Professor Stephen Woods, clinical psychologist, as he feels that confronting his sense of [guilt] and remorse, though painful, would benefit him.I am satisfied that this young man genuinely understands the enormity of what he has done, and the suffering he has caused. I am also satisfied that he will live with what he has done for the rest of his life."Objective seriousness – the primary judge's conclusions
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
(dissent)
The appellant was 20 years old at the time of the offence. His subjective circumstances were powerful mitigating considerations. The primary judge described him in her sentencing remarks in the following terms:"He had successfully negotiated high school where in his final year he had been a prefect, and had received both the Principal's Award, and the Community Spirit Award. He had never been a problem to his parents and was, according to his mother, always helpful and good humoured. He was in his second year of a plumbing apprenticeship and was a highly valued employee. He was the captain of his rugby league team and was renowned for stepping in to calm situations on the field before they got out of hand. In his 17 year playing career he had never been sent to the sin bin or sent off. He had certainly never been in trouble with the criminal law.In the light of all the material before me about this young man what occurred on the night of 20 May 2007 is inexplicable. He is unable to explain it. What is clear is that the events of that night have touched him deeply and irrevocably. He is no longer the carefree young man he was. He lives each day conscious that he has taken a human life. He suspended his apprenticeship as he felt it was unfair to his employer to keep working as he was too distressed, anxious and depressed to do the job properly. He stopped playing football as he felt emotionally unable to face people.He has been diagnosed as suffering clinically significant levels of depression and anxiety. He is troubled by thoughts of worthlessness, hopelessness, and personal failure. He has almost entirely ceased using alcohol. And yet to keep himself busy he sought and obtained labouring work which requires less concentration than his apprenticeship, and he has sought to deal with his emotional distress by undergoing treatment with Professor Stephen Woods, clinical psychologist, as he feels that confronting his sense of [guilt] and remorse, though painful, would benefit him.I am satisfied that this young man genuinely understands the enormity of what he has done, and the suffering he has caused. I am also satisfied that he will live with what he has done for the rest of his life."Objective seriousness – the primary judge's conclusions The primary judge accepted that "this offence lies towards the bottom of the range of objective seriousness for offences of manslaughter". This conclusion proceeded from an acceptance of the argument urged on behalf of the appellant that the offence was to be classified in this way "as there was some provocation from the victim, there was only one blow, which was spontaneous, and there was no weapon involved". The primary judge recorded that the prosecution had conceded "that there was some provocation but [submitted] that it was certainly not sufficient to warrant a head butting".Objective seriousness – the Court of Criminal Appeal McClellan CJ at CL, speaking for the majority of the Court of Criminal Appeal, concluded[8] that the offence was serious and could not justify the description of falling towards the bottom of the range of objective seriousness. That conclusion was expressed against a characterisation of the facts that differed in important respects from that of the primary judge. In particular, McClellan CJ at CL described[9] the facts in the following terms:"Although her Honour found that the deceased made a threat to get a gun, this was an idle boast which could not have justified a violent response from the respondent. Mr Criniti was apparently intoxicated and there was no suggestion that the [present appellant] was under any immediate threat. Perhaps a dismissive word in response to Mr Criniti was justified but not a violent and aggressive act with, on any view, potentially serious physical consequences. Although a head butt delivered to another's face may not be expected to lead to death, severe injury was clearly foreseeable and death at least a possibility."[8][2008] NSWCCA 218 at [19].[9][2008] NSWCCA 218 at [18].