R v Carroll (Unreported, County Court of Victoria, Judge Douglas, 9 May 2008)
[1]This was the date on which counsel for the Crown advised that no submissions were to be filed in response to the further evidence filed on behalf of the appellant.
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CRIMINAL LAW – Appeal – Sentence – Multiple counts of stalking, burglary, theft, aggravated burglary and using telephone to menace – Sexual motivation – Twelve different victims over eight months – Total effective sentence 12 years, non-parole period 10 years – Whether manifestly excessive – Whether persistent sexual offending attributable to mental impairment – R v Verdins (2007) 16 VR 269 considered – Whether remorse demonstrated – New evidence – Protection prisoner – Whether degree of restriction warranted alteration of sentence – Appeal dismissed.
CRIMINAL LAW – Sentencing – Commonwealth offences – Whether sentencing judge required to make recognisance release order or fix non-parole period – Whether adequate reasons given for not doing so – Crimes Act 1914 (Cth) ss 19AB, 19AC.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P F Tehan QC
Jeremy Harper & Associates
For the Crown (Cth)
Mr J R Champion SC
Commonwealth Director of Public Prosecutions
For the Crown (Vic)
Mr B L Sonnet
Mr Craig Hyland, Solicitor for Public Prosecutions
MAXWELL P:
This is an appeal against sentence imposed in the County Court on 9 May 2008. The appellant pleaded guilty to 34 counts, involving 13 different victims. Twenty-nine counts were for State offences and five were for Commonwealth offences. In each case, the Commonwealth offence was that of using a carriage service – in this case, a telephone – to menace a person, contrary to s 474.17 of the Criminal Code Act 1995 (Cth).
The appellant was sentenced as follows:
COUNT
VICTIM
OFFENCE
MAXIMUM
SENTENCE
CUMULATION
1
A
Burglary
10y
18m
2m
2
A
Theft
10y
12m
—
3
A
Stalking
10y
5y
Base
4
A
Aggravated burglary
25y
3y
5m
5
A
Theft
10y
12m
—
6
B
Burglary
10y
18m
2m
7
B
Theft
10y
12m
—
8
B
(Cth) Use telephone service to menace
3y
18m
—
9
H
Burglary
10y
18m
2m
10
H
Theft
10y
12m
—
11
C
Theft
10y
18m
2m
12
C
Theft
10y
12m
—
13
C
(Cth) Use telephone service to menace
3y
18m
—
14
D
Theft
10y
8m
2m
15
D
Obtain property by deception
10y
8m
1m
16
E
Burglary
10y
18m
2m
17
E
Theft
10y
12m
—
18
F
Burglary
10y
18m
2m
19
F
Theft
10y
12m
—
20
F
(Cth) Use telephone service to…
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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Details
AGLC
Carroll v The Queen [2011] VSCA 150
Case
[2011] VSCA 150
Decision Date
CaseChat Overview and Summary
The appeal was brought by the respondent, the Crown, against the sentence given to the appellant, Carroll, by a trial judge. Carroll was found guilty of multiple counts of stalking, burglary, theft, aggravated burglary and using a telephone to menace, with a sexual motivation. The crimes were committed against twelve different victims over a period of eight months. The trial judge sentenced Carroll to a total effective sentence of 12 years, with a non-parole period of 10 years. The Crown appealed against the sentence, arguing that it was manifestly excessive, and that Carroll's persistent sexual offending was not attributable to a mental impairment. The Crown also argued that Carroll did not demonstrate sufficient remorse and that the degree of restriction was not warranted.
The court considered whether the sentence was manifestly excessive, and whether the persistent sexual offending was attributable to a mental impairment. The court also examined whether Carroll demonstrated sufficient remorse and whether the degree of restriction was warranted. The court found that the sentence was not manifestly excessive, and that the persistent sexual offending was not attributable to a mental impairment. The court also found that Carroll did not demonstrate sufficient remorse and that the degree of restriction was warranted. The court further considered whether the sentencing judge was required to make a recognisance release order or fix a non-parole period, and whether adequate reasons were given for not doing so. The court found that the sentencing judge was not required to make a recognisance release order or fix a non-parole period, and that adequate reasons were given for not doing so.
The court dismissed the appeal, and affirmed the sentence given by the trial judge. The court found that the sentence was appropriate and proportionate to the crimes committed by Carroll. The court also found that the trial judge had adequately considered the relevant factors in determining the sentence, including the nature and circumstances of the offences, the degree of responsibility of the offender, and the need for the sentence to reflect the community's condemnation of the offences. The court held that the appeal should be dismissed, and that the sentence given by the trial judge should be upheld.