Carroll v The Queen

Case [2011] NTCCA 6

Carroll v The Queen [2011] NTCCA 6

PARTIES:  JASON CARROLL

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 21 of 2010 (20817105)

DELIVERED:  26 May 2011

HEARING DATE:  4 April 2011

JUDGMENT OF:  MILDREN, SOUTHWOOD and BLOKLAND JJ

APPEALED FROM:  RILEY J

CATCHWORDS:

APPEAL AGAINST SENTENCE – multiple sexual offences – accumulation of sentences – total sentence manifestly excessive – appeal allowed

Sentencing Act (NT) s 52(2)

Attorney-General v Tichy (1982) 30 SASR 84; Dinsdale v The Queen (200) 202 CLR 321; Hampton v The Queen [2008] NTCCA 5; Miles v The Queen [2001] NTCA 9; Murphy v The Queen [2005] NTCCA 15; OAA v R [2010] VSCA 155; R v O’Rourke [1997] 1 VR 246; R v Richardson (unreported, VCCA, 30 April 1992); R v SBL [1999] 1 VR 706

D Ross, Crime par [19.2155]

REPRESENTATION:

Counsel:

Appellant:S Cox QC

Respondent:  M McColm

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  Sou1104

Number of pages:  27

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Carroll v The Queen [2011] NTCCA 6

No CA 21 of 2010 (20817105)

BETWEEN:

JASON CARROLL

Appellant

AND:

THE QUEEN

Respondent

CORAM:     MILDREN, SOUTHWOOD and BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 26 May 2011)

The Court:

Introduction

  1. On 30 April 2009 the appellant pleaded guilty to 10 counts on an indictment dated 7 November 2008.  He was convicted of all counts and sentenced to a total sentence of 21 years imprisonment with a non-parole period of 16 years.

  2. This is an appeal against the appellant’s total sentence of imprisonment.  The grounds of appeal are:

    1.The sentencing Judge erred in directing that the aggregate sentence of imprisonment he imposed for counts 1 to 9 on the indictment was to be served wholly cumulatively on the sentence of imprisonment he imposed for count 10.

    2.The total sentence of imprisonment is manifestly excessive.

  3. The appellant has not appealed against any of the individual sentences of imprisonment that were imposed on him for each count on the indictment. However, the sentencing Judge erred by failing to discount each individual sentence for the appellant’s pleas of guilty, and by imposing an aggregate sentence covering all counts. In so doing he failed to comply with s 52(2) of the Sentencing Act(NT).

    The counts on the indictment

  4. The 10 counts on the indictment dated 7 November 2008 were as follows.

    Count 1

    Contrary to s 196(1) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant deprived CR of her personal liberty.  The maximum penalty for this offence is imprisonment for seven years. 

    Count 2

    Contrary to s 211(1) and (2) of the Criminal Code, on 21 June 2008 at Alice Springs, the appellant stole CR’s motor vehicle and used violence…

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AGLC
Carroll v The Queen [2011] NTCCA 6
Case
[2011] NTCCA 6
Decision Date

CaseChat Overview and Summary

The case of *Carroll v The Queen* was heard in the Court of Criminal Appeal of the Northern Territory. The appeal concerned the sentence imposed on the appellant for offences including deprivation of liberty and assault. The appellant had pleaded guilty to a representative charge of deprivation of liberty, with the Crown proceeding on the basis that this charge represented a wider pattern of offending. The facts involved the appellant taking a woman from a public place, forcing her into her own car, and driving her to a remote location while making threats and demands.

The primary legal issue before the Court of Criminal Appeal was whether the sentencing judge had erred in taking into account the full extent of the appellant's conduct, including uncharged offences, when determining the sentence for the representative charge. Specifically, the court had to consider whether the sentence reflected the broader context of the appellant's criminal behaviour and its impact on the victim, rather than punishing him for offences for which he had not been charged.

The Court of Criminal Appeal held that it was permissible for the sentencing judge to consider the full circumstantial context of the representative offence. The court reasoned that while the appellant was not to be punished for uncharged offences, the sentence for the representative offence could properly reflect that it occurred within a wider pattern of conduct. This approach allowed the court to consider the adverse effect on the victim of the appellant's entire course of conduct, which might not have been produced to the same extent by the representative offences alone. The court affirmed that the facts of the offending, as set out at length, demonstrated a serious and prolonged deprivation of liberty and assault, justifying a sentence that reflected this wider criminality.

Orders

Orders of the court

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Background

Background to the litigation

Not only does the fact that a count is agreed to be a representative count preclude it being said, in mitigation, that the offence was isolated, it affirmatively enables the charged offence to be seen in its full circumstantial context. The appellant is not, by a loading of the sentence, to be punished for the uncharged offences, but the sentence for the representative offence may reflect the fact that it occurred in a wider context. Consistently with this view regard may be had to the adverse effect upon CR of the whole of the appellant’s conduct, which effect might not have been produced to the same extent by the representative offences counted alone.[3]The facts The facts of the offending are as follows. We have set out the facts at length because only by doing so can the full extent of the appellant’s conduct and its attendant criminality be appreciated. At 7.00pm on 21 June 2008, CR attended the post office on Hartley Street in Alice Springs. She parked her motor vehicle near the telephone boxes and she went to use one of the telephones. Her purse and her keys were in her hand. She tried to use two of the telephones but they did not work and she moved to a third. She was about to get some money from her purse so she could use the telephone when she realised she no longer had her purse. CR turned back to look for her purse and saw the appellant standing about two metres from her. He was holding her purse and keys and CR asked for them to be returned. The appellant said, “I got them from a young boy.” CR asked where the young boy was and the appellant motioned in the direction of her motor vehicle. She noticed that the front passenger door was open and she walked towards her motor vehicle to see if anyone was inside. After she did so, the appellant pushed her in the back and she ended up sitting in the front passenger seat. The appellant then got into the motor vehicle and drove off with CR. The appellant drove down Gap Road. He was silent for a time and then he grabbed CR’s hair. He said, “I’m taking you to see my family.” CR was stunned and terrified. She tried to resolve the situation by suggesting that the appellant drop her off or take her home and leave her behind. He responded by pulling her hair with his left hand and saying, “I take you to my family. I want a white woman. I want a wife.” CR asked the appellant if he wanted to go and buy some grog. He replied, “No. I want a white woman wife.” He told CR he was taking her to his grandmother and mother. He said, “Come on, come on, I have no woman, if you don’t come I kill you. I kill white woman.” CR started screaming and crying. Every time she screamed the appellant hit her across the face. They drove past Old Timers and the appellant turned right down Ilparpa Road. He told CR that he had family out here. CR asked him to drop her off. He said, “No. You are my woman. I need a woman. You know how it is.” He said he had not had a woman in a long time and he was going to take her to Nyirripi. The appellant then turned and struck CR four times across her head and face with his left hand.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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