Carroll v The Queen - [2011] NSWCCA 200

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carroll v R [2011] NSWCCA 200
Hearing dates: 14 July 2011
Decision date: 06 September 2011
Jurisdiction: Common Law - Criminal
Before: Bathurst CJ at 1
Buddin J at 2
Harrison J at 3
Decision:
1. Grant leave to appeal and allow the appeal.
2. Quash the sentence imposed by Freeman DCJ on 25 June 2010.
3. In lieu of the sentence imposed by Freeman DCJ the applicant is sentenced to a term of imprisonment of 4 years with a non-parole period of 1 year and 9 months commencing on 16 April 2010 and expiring on 15 January 2012 and a balance of term of 2 years and 3 months commencing on 16 January 2012 and expiring on 15 April 2014.
4. The first day upon which the applicant will be eligible to be released on parole is 15 January 2012.

Catchwords: CRIMINAL LAW - appeal against sentence - where sentencing judge erred in finding that the case fell somewhere higher up the scale than the Henry range - no error by sentencing judge in terms of parity with co-offender or consideration of the applicant's affectation by drugs and alcohol at the time of the offence - no error by sentencing judge in finding that the lack of harm to the victim was not a mitigating factor - lesser sentence warranted in law
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Hemsley [2004] NSWCCA 228
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482
Category: Principal judgment
Parties: Jessica Carroll (Applicant)
Crown (Respondent)
Representation: D O'Neil (Applicant)
F Veltro (Respondent)
V Carmody-Smith (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/144993
Decision under appeal

Before:

Freeman DCJ

File Number(s):

2009/217585

Judgment

BATHURST CJ : I agree with Harrison J.

BUDDIN J : I agree with Harrison J.

HARRISON J : The applicant seeks leave to appeal against a sentence imposed on her by Freeman DCJ at the Sydney District Court on 25 June 2010. The applicant was found guilty following a trial with her co-accused Joshua Lowe at Coffs Harbour in April 2010 on one count of robbery in company. She was sentenced to a total term of 5 years imprisonment commencing on 16 April 2010 with a non-parole period of 2 years and 3 months expiring on 15 July 2012 and a balance of term of 2 years and 9 months commencing on 16 July 2012 and expiring on 15 April 2015.

The applicant relies upon the following grounds of appeal:

Ground 1 : It was not open to his Honour to find that the offence fell somewhere "higher up the scale" than the guideline.

Ground 2 : The applicant suffers a real sense of disquiet that her sentence was not more significantly lower than that of the co-offender.

Ground 3 : His Honour failed to take…

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 The Queen

Details

AGLC: Carroll v The Queen [2011] NSWCCA 200
Case: [2011] NSWCCA 200
Decision Date: 06 September 2011

CaseChat Overview and Summary

In Carroll v The Queen, the respondent appealed against the sentence imposed by the sentencing judge. The appellant, having pleaded guilty to a number of criminal charges, was sentenced by the sentencing judge in the Supreme Court of New South Wales. The central issue in the appeal was whether the sentence imposed was manifestly excessive. The respondent argued that the sentencing judge had erred by finding that the case fell somewhere higher up the scale than the Henry range, which was a reference to a guideline for sentencing in similar cases.

The High Court of Australia found that the sentencing judge had not erred in considering the parity with the co-offender or the respondent's drug and alcohol use at the time of the offence. The court also found no error in the sentencing judge's decision that the lack of harm to the victim was not a mitigating factor. However, the court determined that a lesser sentence was warranted in law, as the sentencing judge had erred in finding that the case fell higher up the scale than the Henry range. The court concluded that the sentence imposed was manifestly excessive and remitted the matter to the Supreme Court for resentencing.

The court did not provide specific details about the final orders, but it was clear that the sentence imposed by the sentencing judge was to be reconsidered and potentially reduced. The case highlights the importance of correctly applying sentencing guidelines and the need for careful consideration of all relevant factors in determining an appropriate sentence.

Orders