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Pikula-Carroll v The Queen

Pikula-Carroll v The Queen

Case [2022] ACTCA 12 25 March 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Pikula-Carroll v The Queen
Citation:	[2022] ACTCA 12
Hearing Date:	10 November 2021
DecisionDate:	25 March 2022
Before:	Mossop and Banks-Smith JJ, McWilliam AJ
Decision:	See [59]
Catchwords:	APPEAL – CRIMINAL LAW – Appeal against sentence – murder by joint commission – appellant accompanied co‑offender who shot deceased through his front door at the commencement of aggravated burglary – whether the Crown had proved that appellant knew gun was loaded – it had not – resentence
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 33(1)(w)
Cases Cited:	Brown v The Queen [2020] VSCA 212; 62 VR 491 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Forster-Jones v The Queen [2020] ACTCA 31 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lowe v The Queen (1984) 154 CLR 606 Munda v Western Australia [2013] HCA 38; 249 CLR 600 R v Forster-Jones (No 2) [2019] ACTSC 286 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pikula-Carroll (No 2) [2020] ACTSC 347 R v Verdins [2007] VSCA 102; 16 VR 269
Parties:	Jason Pikula-Carroll ( Appellant) The Queen ( Respondent)
Representation:	Counsel F Purnell SC ( Appellant) K McCann ( Respondent)
Solicitors Bevan & Co Lawyers ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 48 of 2020
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 1 December 2020 Case Title: R v Pikula-Carroll (No 2) Citation: [2020] ACTSC 347

THE COURT:

Introduction

The appellant, Jason Pikula-Carroll, has appealed against sentences imposed by Burns J (the primary judge) on 1 December 2020: see R v Pikula-Carroll (No 2) [2020] ACTSC 347 (Reasons). The sentences imposed arose out of two incidents involving aggravated burglaries that occurred on 22 September 2016 and 3 November 2016. Tragically, the incident on 3 November 2016 resulted in the death of Mr Eden Waugh, who was shot in the chest by the appellant’s co-offender, Peter Forster-Jones. Mr Forster-Jones discharged a shotgun through the door of Mr Waugh’s unit and Mr Waugh suffered fatal wounds to his heart and lung.

The appellant was sentenced on six counts. The first four counts related to the aggravated burglary that occurred on 22 September 2016. The aggregate sentence for those offences was eight years. The fifth and sixth counts related to the aggravated burglary that occurred on 3 November 2016. A sentence of 20 years was imposed for count 5, a charge of murder, and a sentence of eight years was imposed for count 6, a charge of aggravated robbery. The aggregate sentence relating to the events on 3 November 2016 was 22 years and six months. The overall aggregate sentence was 30 years’ imprisonment with a non-parole period of 18 years.

The sentences…

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 Pikula-Carroll v The Queen

Details

AGLC: Pikula-Carroll v The Queen [2022] ACTCA 12
Case: [2022] ACTCA 12
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Mossop and Banks-Smith JJ and McWilliam AJ, heard an appeal against sentences imposed on Jason Pikula-Carroll. The sentences arose from two incidents of aggravated burglary, one on 22 September 2016 and another on 3 November 2016, which resulted in the death of Mr Eden Waugh. Mr Waugh was fatally shot by the appellant's co-offender, Peter Forster-Jones, through the front door of his unit during the commission of the latter aggravated burglary. The appellant was sentenced to an aggregate of 30 years' imprisonment with a non-parole period of 18 years.

The primary legal issues before the Court were whether the Crown had proven that the appellant knew the shotgun used by his co-offender was loaded during the 3 November 2016 incident, and consequently, whether the sentence imposed for murder was appropriate. The appeal also concerned the overall sentencing for the combined offences, including those from the 22 September 2016 aggravated burglary.

The Court found that while the appellant was aware that a shotgun was discharged and that Mr Waugh had died, the Crown had not proven beyond reasonable doubt that the appellant knew the shotgun was loaded prior to it being fired. This finding was significant because the appellant's culpability for murder, under section 45A of the Criminal Code, was based on recklessness regarding the commission of murder by his co-offender. The Court determined that the primary judge erred in finding the appellant knew the gun was loaded, which impacted the assessment of the objective seriousness of the murder offence. Consequently, the Court allowed the appeal, quashed the sentence for murder, and remitted the matter for resentencing.

Orders