R v Carroll

[2010] NSWCCA 55

Reported Decision: 267 ALR 57[2010] ALMD 5842[2010] ALMD 566477 NSWLR 45[2010] ALMD 5663[2010] ALMD 5564239 FLR 11200 A Crim R 284

New South Wales

Court of Criminal Appeal

CITATION:	R v Carroll, Carroll v R [2010] NSWCCA 55
HEARING DATE(S):	10 July & 9 December 2009
JUDGMENT DATE:	1 April 2010
JUDGMENT OF:	Spigelman CJ at 1; Allsop P at 2; Kirby J at 70; Howie J at 71; Johnson J at 2
DECISION:	1. Orders already made on 9 December 2009: 1. Allow the Crown appeal. 2. Quash the sentence imposed by the District Court on 24 April 2008. 3. In lieu thereof, impose a sentence of imprisonment for 18 months to commence 9 December 2009. 4. Order that the execution of the sentence be suspended for 18 months upon Mr Carroll entering upon a bond to be of good behaviour for a period of 18 months pursuant to the Crimes (Sentencing Procedure) Act 1999, s 12. 5. Application by Mr Carroll for leave to appeal against sentence refused. 2. Grant leave to amend the Crown's notice of appeal insofar as it was sought to add grounds 1, 2 and 3. 3. Refuse leave to amend the Crown's notice of appeal and insofar as it was sought to add grounds 4, 5 and 6. 4. Amend order 3 made on 9 December 2009 by removing the words "to commence 9 December 2009".
CATCHWORDS:	CRIMINAL LAW - Sentencing - manslaughter - Crown appeal - double jeopardy - meaning of s 68A Crimes (Appeal and Review) Act 2001 - Constitutional validity of Crimes (Appeal and Review) Act 2001, s 68A - manifestly inadequate sentence - resentencing - objective seriousness of the offence - head butt causing death - general deterrence - alcohol-fuelled violence
LEGISLATION CITED:	Crimes Act 1900 (NSW), s 18(1)(b) Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW) Crimes (Appeal and Review) Act 2001 (NSW), s 68A Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 12(3) Criminal Appeal Act 1912 (NSW), s 6(3) Constitution, s 76(i) Judiciary Act 1903 (Cth), s 37
CATEGORY:	Principal judgment
CASES CITED:	Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Hopley v R [2008] NSWCCA 105 Kable v Director of Public Prosecutions [1996] HCA 24; 189 CLR 51 International Finance Trust Co Limited v New South Wales Crime Commission [2009] HCA 49; 84 ALJR 31 Jones v R [2009] NSWCCA 169 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Nicholas v The Queen [1998] HCA 9; 193 CLR 173 Peacock v DM Osborne & Co [1907] HCA 42; 4 CLR 1564 Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501 R v Carroll [2008] NSWCCA 218; 188 A Crim R 253 R v Dodd (1991) 57 A Crim R 349 R v Hill [1983] 3 A Crim R 397 R v JW [2010] NSWCCA 49 R v MD [2005] NSWCCA 342; 156 A Crim R 372 R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 Salah v R [2009] NSWCCA 2
PARTIES:	The Queen (Appellant) Joshua John Carroll (Respondent)
FILE NUMBER(S):	CCA 2007/16176002; 2007/16176003
COUNSEL:	D Arnott SC with Ms J Girdham (Appellant) T Game SC with Ms S Pritchard and Ms G Bashir (Respondent) Dr J Griffiths SC with Ms B Baker (Attorney General intervening)
SOLICITORS:	Solicitor for Public Prosecutions (Appellant) Legal Aid NSW (Respondent) NSW Crown Solicitor (Attorney General intervening)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/11/0833
LOWER COURT JUDICIAL OFFICER:	Flannery DCJ
LOWER COURT DATE OF DECISION:	24 April 2008

2007/16176002
2007/16176003

SPIGELMAN CJ
ALLSOP P
KIRBY J
HOWIE J
JOHNSON J

Thursday 1 April 2010

R v CARROLL

CARROLL v R

Judgment

1 SPIGELMAN CJ: I agree with Allsop P and Johnson J.

On 9 December 2009, orders were made by this Court as follows:

1. Allow the Crown appeal.

2. Quash the sentence imposed by the District Court on 24 April 2008.

3. In lieu thereof, impose a sentence of imprisonment for 18 months to commence 9 December 2009.

4. Order that the execution of the sentence be suspended for 18 months upon Mr Carroll entering upon a bond to be of good behaviour for a period of 18 months pursuant to s. the Crimes (Sentencing Procedure) Act 1999 , s 12.

5. Application by Mr Carroll for leave to appeal against sentence refused.

3 These are our reasons for joining in the making of those orders.

4 On 20 May 2007, Mr Carroll, who at the time was 20 years old, head-butted a 51 year old man (Mr Luigi Criniti) outside a suburban hotel. Mr Criniti fell, hitting his head on the pavement. He died some days later of the head injury caused when he fell. Mr Carroll was charged with one count of manslaughter, that between 20 and 30 May 2007 he did unlawfully kill Mr Criniti contrary to the Crimes Act 1900 (NSW), s 18(1)(b). The offence carried a maximum penalty of 25 years imprisonment: Crimes Act 1900 (NSW), s 24.

5 On 1 November 2007, Mr Carroll pleaded guilty in the Downing Centre Local Court and was committed for sentence in the District Court. On 24 April 2008, he was sentenced in the District Court at Sydney by Flannery DCJ to imprisonment for a non-parole period of 18 months to commence 2 May 2008 and to expire on 1 November 2009, with a balance of term of 18 months to expire on 1 May 2011. It was ordered that the sentence be served by way of periodic detention.

6 The Crown appealed on the sole ground that the sentence was manifestly inadequate.

7 On 19 September 2008, the Crown appeal was allowed by the Court of Criminal Appeal (McClellan CJ at CL and Hislop J, Simpson J dissenting): R v Carroll [2008] NSWCCA 218; 188 A Crim R 253. The sentence imposed in the District Court was quashed; and, in lieu thereof, the Court sentenced Mr Carroll to full-time imprisonment for a non-parole period of 18 months to commence 2 May 2008 and to expire on 1 November 2009, with a balance of term of 18 months to expire on 1 May 2011.

8 The High Court granted special leave to appeal and, on 21 April 2009, allowed the appeal, set aside the orders of the Court of Criminal Appeal and remitted the Crown appeal to the Court of Criminal Appeal for re-hearing: Carroll v The Queen [2009] HCA 13; 83 ALJR 579.

9 On 29 April 2009, Mr Carroll was granted bail in the Supreme Court.

10 On 10 July 2009, the Crown appeal and an application for leave to appeal against sentence by Mr Carroll filed on 22 April 2009 were heard by a Court comprised of Allsop P, Kirby J and Johnson J. The Court reserved its decision and made, at the request of both sides, orders for the filing of further submissions by late August. These submissions were filed.

11 Prior to the delivery of judgment, Royal Assent was given to the bill which became the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (the “Double Jeopardy Act”) which amended the Crimes (Appeal and Review) Act 2001 (the “Appeal and Review Act”) by inserting s 68A in the following form:

“ s 68A Double jeopardy not to be taken into account in prosecution appeals against sentence
(1) An appeal court must not:

(a) dismiss a prosecution appeal against sentence, or
(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,
because of any element of double jeopardy involved in the respondent being sentenced again.

(2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal.”

12 Section 68A applied to an appeal that was commenced but not finally determined before the insertion of the section: the Appeal and Review Act, cl 16 of Part 8 Schedule 1 inserted by item [4] of the Double Jeopardy Act. Clause 16 is in the following terms:

“Section 68A, as inserted by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 , extends to an appeal that was commenced but not finally determined before the insertion of the section.”

13 Further submissions were filed on the effect and validity of the Double Jeopardy Act, including submissions in support of a Constitutional challenge to s 68A. Notices under the Judiciary Act 1903 (Cth), s 78B were given to the State, Territory and Commonwealth Attorneys-General.

14 A further hearing took place on 9 December 2009, before a five judge bench (Spigelman CJ, Allsop P, Kirby J, Howie J and Johnson J) in order to deal with the Constitutional issues. The parties consented to the Chief Justice and Howie J being added to the bench without re-argument of the matters dealt with in July.

15 The argument on 9 December 2009 took place immediately following argument in R v JW before a differently constituted bench of five judges (Spigelman CJ, Allsop P, McClellan CJ at CL, Howie J and Johnson J) in which similar arguments were propounded as to s 68A and some of the grounds of its asserted invalidity. Judgment in R vJW has been delivered. The Court was unanimous in its views as to the proper construction of s 68A and its effect: R v JW [2010] NSWCCA 49.

The proper construction of s 68A, its reach and scope and its constitutional validity

16 The narrow confines of s 68A were dealt with in R vJW at [49] and [141].

17 Mr Game SC, who, with Ms Bashir, appeared for Mr Carroll, submitted that s 68A did not apply to this appeal because Mr Carroll’s appeal had already been “finally determined” for the purposes of cl 16 of Part 8 of Schedule 1 of the Appeal and Review Act.

18 We reject this submission. Before the operation of the Double Jeopardy Act and the relevant amendments to the Appeal and Review Act, the High Court had set aside this Court’s orders, thereby reviving the original orders of the sentencing judge. The “matter”, that is the appeal under the Criminal Appeal Act 1912 (NSW), had been remitted to this Court for rehearing. That appeal was not finally determined.

19 Mr Game next submitted that the appeal in this Court was in federal jurisdiction. That was uncontroversial in so far as that circumstance was explained by the Constitutional debate that was raised: s 76(i) of the Constitution. Mr Game submitted that the same conclusion was to be reached because of the fact that the appeal was before this Court pursuant to remitter under the Judiciary Act, s 37, which is in the following terms:

“[37] Form of judgment on appeal

The High Court in the exercise of its appellate jurisdiction may affirm reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending in the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment.”

20 The argument in this Court proceeded on the correctness of the assumption that the High Court’s order was made under s 37 and in particular under or by reference to the second part of it. No occasion arises to examine the correctness of that assumption.

21 It is unnecessary to examine all the consequences of the fact that the matter was returned to this Court under s 37. Other than the operation of s 76(i) here, no other provision of ss 75 and 76 of the Constitution was said to be engaged. For instance, it is difficult to conclude that the matter (that is the controversy, as distinct from the occasion for this Court to undertake its resolution and quelling) arose under the Judiciary Act, s 37. For present purposes and on the way the matter was argued, it can be accepted that the Court is executing the judgment of the High Court.

22 In this context and on the hypothesis that the Court was exercising federal jurisdiction, three principal submissions were put on behalf of Mr Carroll as to the invalidity of s 68A: first, that s 68A was inconsistent with s 37 on its face; secondly, that s 68A was inconsistent with the operation of s 37, in this case by reason of the terms of the remitter order made by the High Court; and, thirdly, that s 68A was an impermissible interference with the exercise of federal jurisdiction. The first submission was put by reference to the engagement of the Constitution, s 109, before the operation of the Judiciary Act, s 68. The first and second submissions can be understood to be put by reference to the Judiciary Act, s 68.

Whether s 68A is inconsistent with s 37

23 We do not consider that on its face s 68A is inconsistent with s 37. Whether or not s 68A detracts from any order made by the High Court under s 37 is another (the next) question. Section 68A neither detracts from, nor enters any field covered by, s 37. It simply states the law of New South Wales to be picked up by the Judiciary Act, s 68. Nothing in its terms is inconsistent with s 37 so as to prevent it being picked up by s 68.

Whether s 68A conflicts with or detracts from the High Court order under s 37

24 The question whether s 68A conflicts with or detracts from the High Court’s order depends upon a proper appreciation of the content of that order. Before the scope of the High Court’s order is examined, it should be noted that this Court in R vJW made clear that the Crown has an obligation to bring into existence (and file) a formal document identifying the grounds of appeal: R vJW at [30]. The notice of appeal filed by the Crown on 9 May 2008 only identified that the “sentence [was] manifestly inadequate”. It was with the notice of appeal in that form that the matter was dealt with by the High Court.

25 The High Court dealt with this and the particular arguments that were put forward at 581 [8] and [9] of their reasons as follows:

“[8] The particular principle which the Director sought to invoke in his appeal to the Court of Criminal Appeal against the sentence passed upon the present appellant was the last category of case identified in the well-known classification stated in House v The King :

‘It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’


The Director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was ‘manifestly inadequate’, was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence.

[9] In support of that ground of appeal the Director submitted to the Court of Criminal Appeal that there were three reasons the sentence was manifestly inadequate. Those arguments were recorded by McClellan CJ at CL as being:

(a) the primary judge ‘erred in finding that the youth of the [present appellant] and the need to foster his rehabilitation reduced the need for retribution and general deterrence’;
(b) the primary judge ‘gave too much weight to the [present appellant's] subjective circumstances and failed to appreciate the objective seriousness of the offence’; and
(c) the primary judge ‘erred in finding that there were exceptional circumstances such that a sentence of periodic detention would reflect the objective seriousness of the offence and fulfil the manifold purposes of punishment’.
Although the majority in the Court of Criminal Appeal directed chief attention to the second of these matters, and in particular the issue of objective seriousness of the offence, it is as well to point out that none of the three matters identified by the Director was, or was advanced as being, an error of principle or fact such as would have enlivened any of the forms of error identified in House v The King other than the last category. Each of the three arguments advanced was put as no more than some explanation for what was alleged to be a sentence which, on its face, was ‘unreasonable or plainly unjust’.”

26 The High Court then examined the first judgment of this Court and said the following at 582-584 [17]-[26]:

“[17] McClellan CJ at CL, speaking for the majority of the Court of Criminal Appeal, concluded 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 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.’


[18] Two features of that description are to be noted. First, while it is undeniably true that nothing the victim had said or done ‘justified a violent response’ the appellant had never suggested that what he had done was justified. The primary judge had not held to the contrary. Rather, the primary judge had taken account of the fact that the appellant had reacted (wrongly and violently, but spontaneously) to what she had described as ‘some provocation’ from the victim.

[19] In recording the arguments advanced to the Court of Criminal Appeal on behalf of the present appellant, McClellan CJ at CL noted that emphasis was given to the prosecution's concession at first instance that the appellant had “acted in response to the deceased's provocative act in threatening to get a gun and kill the 'whole family'. But although the prosecution's concession about why the appellant had acted as he had was thus noted, describing the deceased's words as ‘an idle boast’ which perhaps justified ‘a dismissive word in response’ focused attention upon the objective characterisation of the events to the exclusion of the primary judge's finding about what had led the appellant to act as he had. The objective characterisation of the events was never in issue; the subjective reason the appellant reacted to those events as he did was not irrelevant.

[20] The second point to notice about the Chief Judge's characterisation of the matter is his encapsulation of why, in the circumstances of this case, the offence of manslaughter was established. He said that 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’.

[21] By his plea of guilty the appellant acknowledged that his head-butting the victim was an unlawful and dangerous act that carried with it an appreciable risk of serious injury. He did not admit (and the trial judge did not find) that ‘ severe injury was clearly foreseeable’ or that ‘death [was] at least a possibility’.

[22] Whether what was established by the plea, and by the material led at the sentencing hearing, was sufficiently described in the words of Simpson J as ‘an act of violence that foreseeably, potentially could have led to injury to the victim’ need not be examined. It is enough to notice that by his plea the appellant admitted that his act carried with it an appreciable risk of serious injury but that he did not admit the larger proposition upon which the majority in the Court of Criminal Appeal acted.

[23] Whether, as Simpson J held, the appellant ‘could not have been expected to foresee that [the victim] would fall to the ground and strike his head in such a way as to cause serious injury; far less could he have been expected to foresee death’ is a matter that is better examined upon a rehearing of the Director's appeal. So too, it will be for the parties on a rehearing to debate the sufficiency and accuracy of the characterisation of the appellant's conduct adopted by Simpson J when she described it as ‘an alcohol-fuelled, foolish, possibly thuggish, spontaneous (and immature, even childish) act’ in which the appellant ‘behaved impetuously, plainly without thinking, in the face of a threat’ from the victim.

Conclusion and orders

[24] In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood. But in the absence of any challenge to the primary judge's findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to why the appellant had acted as he had, or by attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death. Both these steps being erroneous, the majority of the Court of Criminal Appeal erred in reasoning to the conclusion that the sentence passed was manifestly inadequate. The appeal to this Court must then be allowed.


[25] This Court should not decide the Director's appeal. That task is better undertaken in this case by the Court of Criminal Appeal.

[26] The appeal to this Court should be allowed, the orders of the Court of Criminal Appeal made on 19 September 2008 set aside, and the matter remitted to the Court of Criminal Appeal for rehearing by that Court.”

27 It is undoubted that the scope of the authority of a court to which a matter is remitted under s 37 is confined by the terms of the remitter and that such court can make no order nor undertake any task inconsistent with the remitter order: Peacock v DM Osborne & Co [1907] HCA 42; 4 CLR 1564 at 1567-1568; R v Weiss (No 2) [2006] VSCA 161; 164 A Crim R 454 at 472 [99]-[102].

28 It is crucial, therefore, to understand what was remitted. The importance of this task arises at two points: first, whether compliance with s 68A is contrary to the order and so, s 37, that section being the source of power of the order; and, secondly, whether the Court has authority to permit the Crown to amend its notice of appeal to raise, as grounds of the appeal, the three arguments referred to in [9] of the High Court’s reasons, as well as three further grounds.

29 The order for remitter was unrestricted in terms and was of “the matter”, that is the controversy. The controversy was the complaint by the Crown about the sentence imposed by the sentencing judge. The whole of the orders of this Court had been the subject of the special leave application and the argument. All the orders of this Court were set aside. This is not a case where only one part of the intermediate court’s orders or reasons was the subject of complaint: cf R v Weiss (No 2). Whilst the High Court examined the Crown’s notice of appeal in [8] and [9] in a fashion reflecting its limited scope (an analysis similarly undertaken by the Chief Justice in R v JW) that did not confine the remitter. What was remitted was the whole matter, the controversy, for rehearing. Implicitly, that rehearing was to take place in accordance with the law then obtaining. In these terms, the task on remitter (that is the operation or execution of the task committed to this Court by s 37 and by the High Court’s order under it) would not be detracted from or affected in any way by the Court applying s 68A. Thus, it is legitimate for the Court to apply s 68A.

30 Further, viewing the scope of the remitter in this way makes it legitimate for the Court to entertain the application to amend the notice of appeal. No unexpressed restriction should be read into the order to prevent the Crown applying to amend the notice of appeal in this Court’s task of quelling the controversy by rehearing it.

Whether s 68A was an impermissible interference with judicial power

31 Mr Game initially put this submission based on Kable v Director of Public Prosecutions [1996] HCA 24; 189 CLR 51 and International Finance Trust Co Limited v New South Wales Crime Commission [2009] HCA 49; 84 ALJR 31. This submission identified as crucial the broad interpretation of double jeopardy originally asserted by the Crown. In the face of the relatively narrow interpretation on which the Attorney General and the Crown ultimately relied in argument (see R vJW at [49] and [141]), the argument based on Kable was barely pressed. This is understandable. So understood, s 68A does not affect the integrity of the Supreme Court nor does it place it in any position of dictation by the executive or Parliament.

32 However, Mr Game maintained the position that, even on this narrow construction, s 68A was invalid. He emphasised that the Court was exercising federal jurisdiction, because of the existence within the controversy of an issue engaging s 76(i) of the Constitution and because the Court was exercising a power under and through the Judiciary Act, s 37. That being the case, he submitted that s 68A impermissibly directed the Court how to exercise its judicial power in a manner which deprived it of the necessary quality of impartiality: Nicholas v The Queen [1998] HCA 9; 193 CLR 173 esp at 208-209; approved in Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at 359 [56].

33 We reject this submission. On the narrow construction submitted, s 68A does not direct the Court to act in a way that is repugnant to the judicial process. It removes one aspect for consideration in the judicial and sentencing process on a Crown appeal. Section 68A does not compromise the essential character of the Court, nor does it require the Court to proceed in a manner that compromises equality before the law, impartiality or substantive fairness of process, they being essential attributes of judicial power, State or federal. Nor does s 68A direct the Court as to the judgment or order it might make. Rather, it removes one aspect from judicial consideration being double jeopardy expressed in R vJW at [141(ii)] as follows:

“… the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.”

34 This conclusion was based on the confined submission of the Attorney General (R v JW at [49]) that the discount discussed in the Parliamentary speeches introducing the Bill was:

“The discount was intended to reflect the distress and anxiety of facing sentence again irrespective of the circumstances of the particular offender.”

35 It was submitted that the operation of s 68A (limited as it is to Crown appeals) would lead to inconsistent outcomes where there was also a sentence appeal by the offender. We do not see that as likely to occur. Crown appeals and resentencing within them will be founded on error leading to inadequacy of sentence and as such the intersection with an offender’s appeal is unlikely. Section 6(3) of the Criminal Appeal Act 1912 applies to an offender’s sentence appeal, but not to a Crown appeal. In any event, such is not sufficient to invalidate s 68A as the product of an exercise of Parliamentary law making.

36 Ultimately, the submission was that the Parliament could not legislate to require the Court to ignore one human consideration from the judicial approach to sentencing on a Crown appeal because to do so directed the Court to act partially and unfairly. We do not accept that. It can be accepted that our rejection of the argument involves a normative assessment of the effect of s 68A narrowly construed as it is. The argument might be of significantly more force and weight if the Crown’s first construction of the content of s 68A had been maintained.

37 Finally, Mr Game submitted that the retrospective operation of s 68A meant that it was invalid to that extent. He relied on what was said by Deane J (in the minority) in Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501 at 608. We reject this submission. A majority in Polyukhovich concluded that the retrospective creation of substantive criminal law in question did not offend Ch III of the Constitution. To a degree, Mr Game’s argument on retrospectivity drew upon other strands of his argument which we have already addressed: repugnancy with the judicial process and inconsistency with s 37.

38 In our view, s 68A is not invalid.

The application to amend the notice of appeal

39 At the hearing on 10 July 2009 the Crown applied to amend its notice of appeal by particularising six grounds:

“The sentence was manifestly inadequate because the sentencing Judge erred in the following respects:
1. Finding that the youth of the respondent and the need to foster his rehabilitation reduced the need for retribution and general deterrence;
2. Gave too much weight to the respondent’s subjective circumstances and failed to appreciate the objective seriousness of the offence;
3. Finding that there were exceptional circumstances such that a sentence of periodic detention would reflect the objective seriousness of the offence and fulfil the manifold purposes of punishment;
4. Finding (at ROS 2.7), being an error of fact, that the respondent was ‘about 15 metres in front of the group before the victim approached Ms Kitchener, rush past Ms Kitchener and his brother and said, “You, want to talk about gun” and head butted the victim in the face’ – par [15] Crown submissions;
5. Having already taken youth into account as a mitigating factor, using it again to find special circumstances – par [22] Crown submissions;
6. The reason for finding special circumstances, for special psychological treatment, did not ultimately become the fact because periodic detention was imposed – par [23] Crown submissions.”

40 Whilst the remitter under s 37 did not prevent this Court entertaining the application, whether it should be granted is another matter. The six grounds need to be viewed in two distinct groups. The first three were the matters raised and argued in the first appeal to this Court and in the High Court. At that time, a procedure was then generally adopted by the Crown not to particularise generally worded notices of appeal that referred to manifest inadequacy. The consequences of this can be seen in the High Court’s reasons in [8] and [9] and in this Court’s reasons in R vJW.

41 We see no unfairness in permitting the first three grounds to be included in the notice of appeal. It will regularise the argument to reflect what was remitted from the High Court.

42 The second three grounds are in a different category. These matters were first raised over twelve months after the appeal was instituted and after two appeal hearings: in this Court on the first occasion and in the High Court. In the light of the matters to which we make reference below in sentencing Mr Carroll, there is a degree of unfairness and oppression in the Crown expanding its case at this late stage. It can be met, no doubt. But in facing his third appellate process, Mr Carroll might be thought to be entitled to a modicum of stability in what is put against him by the Crown.

43 We would be inclined to reject the amendment by adding the three new grounds on this basis alone. However, we are of the view that the sentencing judge erred in the characterisation of the objective seriousness of the offence and in her treatment of general deterrence (matters covered by grounds 1 and 2 of the notice of appeal). In these circumstances, the three later grounds are unnecessary. In these circumstances, we would reject the application to amend the notice of appeal by relying upon grounds 4, 5 and 6.

The offence and the sentencing judge’s remarks

44 The following recitation of facts is taken from the sentencing judge’s remarks. At 1 pm, on Sunday 20 May 2007, Mr Carroll, his older brother, and a friend went to the Gladstone Hotel in Marrickville. There they had lunch, drank alcohol and watched football on the television. While there, they socialised with two young women. While Mr Carroll and the others were at the hotel, the victim and a 55 year old friend were at the hotel drinking and playing the gaming machines. Shortly before closing time at 10 pm, one of the two women had a conversation with the victim and his friend. The young woman apparently convinced the victim to collect his winnings (some $700) rather than continuing to play and lose any more than the $300 he had already lost. Having been convinced to quit while he was ahead, the victim handed the young woman $50 to buy a round of drinks for her group of friends. She took the money, but as the bar was closed she was prevented from purchasing another round. She attempted to return the $50 to the victim. He would not take it. He suggested she try the bottle shop. She kept the money and returned to the group that included Mr Carroll. Shortly thereafter, Mr Carroll, his brother, his friend and the two young women left the hotel, heading in the direction of Mr Carroll’s home. At about the same time, the victim walked out of the hotel. It is convenient to set out the terms of the findings of the sentencing judge as to what then happened:

“[Mr Criniti] called out to [the young woman] ‘Hey give me my $50’. He then approached the group and said to [the young woman], ‘Where’s the $50?’. [She] said to [Mr Carroll’s brother] ‘I’ve got the $50, I can give it back to him’. [Mr Carroll’s brother] said, ‘No, no, no, fuck it’. [Mr Carroll’s friend] said to the victim, ‘What’s your problem? Fuck off and go home.’
At this time the victim was standing in front of [the young woman] and [Mr Carroll’s brother]. It is alleged that [Mr Carroll’s brother] pushed the victim causing him to take one step backwards. After being pushed the victim said, ‘I’ll get a gun and shoot youse all’. He was also heard to say, ‘I’m going to kill your whole family’ by a young man who worked in a restaurant close by.
The offender, who had been about 15 metres in front of the group before the victim approached [the young woman], rushed past [her] and his brother and said, ‘You want to talk about guns’ and head butted the victim in the face. The victim immediately fell backwards onto Marrickville Road where the back of his head hit the roadway with force. [Mr Criniti’s friend] and a female shopkeeper went to his aid. The offender told his brother to ring an ambulance and he did so. The offender and his friends then returned home.
[Mr Carroll’s friend] asked the offender, ‘What happened?’ The offender replied, ‘I head butted him’.”

45 The sentencing judge recounted the observations of the ambulance officer as follows:

“… he noticed the victim had swelling to the front of his lips, a haematoma, and abrasions to his occipital region. He also noticed that he was heavily intoxicated.”

46 Mr Criniti was admitted to Royal Prince Alfred Hospital where his condition deteriorated. He died on 30 May 2007.

47 The day after the incident, after speaking with his father, Mr Carroll caused a solicitor to contact Newtown police. He later attended Newtown police station.

48 The post mortem revealed a cut inside Mr Criniti’s top lip, bruising around the nose, a fracture to the back of the skull, bleeding on the brain and a subdural haemorrhage.

49 The sentencing judge referred to the remarks of Street CJ in R v Hill [1983] 3 A Crim R 397, as to the protean character of the offence of manslaughter and the infinite variety of circumstances in which it might arise. It is appropriate to set out part of the Chief Justice’s reasons in Hill (at 402) that appear to have been of particular relevance to her Honour:

“The courts have however over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the talking of a life.”

50 Her Honour then said:

“This is very much a case where there is material justifying a degree of understanding and of sympathy towards the offender. At the time of these events he was 20 years old. 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 guilty 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.”

51 The sentencing judge accepted the submission put on behalf of Mr Carroll that the offence lay towards the bottom of the range of objective seriousness for offences of manslaughter because there was provocation, there was only one blow which was spontaneous and no weapon was involved.

52 It was common ground that none of the aggravating factors in the Crimes (Sentencing Procedure) Act 1999 (NSW) had application.

53 After referring to the terms of the Crimes (Sentencing Procedure) Act, s 3A, the sentencing judge said the following:

“In the light of the material before me I do not consider that the sentence I impose needs to reflect any measure of personal deterrence or the protection of society, and whilst retribution and general deterrence remain of importance, that importance is reduced to an extent because of the youth of the offender and the need to foster his rehabilitation, although the mitigating effect of his youth is less in this case than it would be if he were under eighteen.
I am satisfied from the material before me that the offender has excellent prospect of rehabilitation.
Mr Bonnici, who appears for the offender, has submitted that I would find special circumstances, the Crown does not disagree. I propose to do so because of the offender’s youth and his very real need for continued specialist psychological treatment, which Professor Stephen Woods believes is unavailable in a correctional centre.
I have had regard to the Judicial Commission statistics for the offence of manslaughter where the proceedings are concluded in the District Court. I recognise that the statistics are a blunt tool as they tell me nothing about the circumstances of the offence or the offender, but they are of some value as a reference point. Those statistics indicate that 77% of people dealt with for this offence in the period October 2000 to September 2007 have imposed a sentence of full time imprisonment. I have also had regard to a number of cases provided to me by the parties for my assistance.
There is no doubt that a sentence of imprisonment is required. In all the circumstances of this case I consider that a sentence of three years is the appropriate sentence. Mr Bonnici has submitted that it I were to consider that a sentence of three years or less was appropriate I would then consider whether that sentence could be served by way of periodic detention.”

54 At this point, the sentencing judge considered the question of periodic detention raised by Mr Carroll’s counsel. Her Honour referred to R v Dodd (1991) 57 A Crim R 349.

55 Her Honour made clear that she found the sentencing exercise a difficult one, but came to the view that periodic detention was appropriate, saying the following:

“I have thought long and hard about this matter. As Justice Hulme pointed out in The Queen v Smith [2008] NSWSC 201:
‘The rigours of incarceration for a person such as this offender are real, and the effect of incarceration does not cease immediately upon release.’
But on the other hand, and this is one of the factors that makes sentencing in this area difficult – the deceased has forever been deprived of these opportunities.
I have come to the conclusion that in the exceptional circumstances of this case a sentence of periodic detention would reflect the object seriousness of the offence, and would fulfil the manifold purposes of sentencing.”

The errors in the approach of the sentencing judge

56 We see two errors in the approach of the sentencing judge, being (a) her Honour’s characterisation of the objective seriousness of the offence and (b) her Honour’s approach to general deterrence. We are satisfied that, as a consequence of these errors, the sentence imposed in the District Court was manifestly inadequate in the well-recognised sense that it was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; Carroll v The Queen at 581 [8]-[9] (set out at [25] above).

The objective seriousness of the offence

57 As the High Court made clear at 584 [24] (see [26] above), it was (and remains) open to this Court to form a view different from the primary judge about where, on an objective scale of offending, Mr Carroll’s conduct stood, provided the Court does not repeat the errors found to have been committed by this Court at the first hearing.

58 A complete assessment of the objective seriousness of the crime of manslaughter in this case could not be undertaken without some assessment of the comparative size and age of the offender and the victim. In this case, the offender was about 30 years younger than the victim and was a powerfully built young man who played as a front-row forward in competitive rugby league. The victim was a middle-aged man of comparatively slight build. Likewise, an appropriate assessment of the objective seriousness of the crime required some assessment of the method of attack utilised by the offender, namely a head butt. This form of physical attack is, in our view, a seriously aggravating feature in an offence of this type.

59 The character of a head butt that should be recognised is that it is a single blow by the head or forehead to the face (nose and mouth) of the victim delivered through the power of the neck and upper body. It is a blow of significant objective force and is inherently brutal. It was not a “bop on the head” as Mr Game put in argument (T24-25, 10 July 2009). The above is not to find facts, but to state what a head butt is, about which there could be no debate as flowing from the findings of the sentencing judge. The blow being delivered in these circumstances by a 20 year old man of strong physique to a 51 year old man of manifestly weaker stature, despite some provocation, leads to the conclusion that the offence cannot be viewed as lying towards the bottom of the range of objective seriousness for offences of manslaughter. There may have been only one blow and it may be characterised as spontaneous with some provocation, but it was a blow of a violent and brutal character which made the objective characterisation of the offence by the sentence judge insupportable.

General deterrence

60 This Court observed in Hopley v R [2008] NSWCCA 105 at [46] that, regrettably, “single-blow manslaughter cases (by unlawful and dangerous act) are not rare in this State.” It was said in Hopley v R at [47]:

“As the learned sentencing judge correctly observed (by reference to R v Grenenger ), this case is a further example of the disastrous consequences which can flow from a public affray in a place of lawful public resort. The violence of the Applicant was perpetrated in a public street where persons were present and where it constitutes a particular affront to civil peace to have a man killed in this way: R v Inzitari (NSW Court of Criminal Appeal, 28 March 1985). It was necessary for the Applicant to be punished for his crime and for an element of general deterrence to be reflected in the sentence.”

61 The sentencing decision with respect to the present offender required the element of general deterrence to be reflected in the sentence. Although the learned sentencing judge referred to general deterrence, we are satisfied that the sentence actually imposed at first instance in this case made no proper allowance for this significant sentencing principle. Mr Carroll was 20 years old, a young adult, at the time of the offence. The principles which apply directly to the sentencing of juvenile offenders, and the approach to general deterrence and rehabilitation, were not applicable to his case. Of course, his relative youth and his prospects of rehabilitation remained significant factors on sentence. However, alcohol-fuelled offences of violence of this type are frequently committed by young men of his age, and general deterrence has particular application for this reason.

The objective and subjective circumstances

62 In R v MD [2005] NSWCCA 342; 156 A Crim R 372 at 387 [65], this Court (McClellan CJ at CL, Simpson and Howie JJ) said:

“In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, Court of Criminal Appeal, NSW, No 606394 of 1990, 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.”


We are satisfied that the sentencing judge was diverted in this case by Mr Carroll’s undoubtedly strong subjective circumstances so as to impose a sentence which did not reflect the serious objective circumstances of the offence: R v Dodd at 354. We find that ground 2 is made good, and serves to explain how an unreasonable or plainly unjust sentence was imposed at first instance.

The question of Judicial Commission statistics

63 There is one other aspect of the sentencing judge’s remarks which calls for comment, though it is not operative to our reasons. Her Honour had regard to Judicial Commission statistics for the offence of manslaughter where the proceedings had been concluded in the District Court (see the extract from the remarks on sentence at [53] above). This issue was touched upon in oral submissions on the present appeal. It should be observed that, to the extent that sentencing statistics were of assistance, the appropriate course was to refer to sentencing statistics for manslaughter offences dealt with in the Supreme and District Courts. It is a fact that a significantly larger number of manslaughter cases were disposed of between 2001 and 2008 in the Supreme Court (208 cases) as opposed to the District Court (32 cases). Her Honour’s attention was drawn to a number of single-blow manslaughter cases where sentence was imposed in the Supreme Court, as well as a number in the District Court. Of course, the same maximum penalty is available in both the Supreme Court and District Court when sentencing for manslaughter. This Court has observed more than once that particular care is required in using sentencing statistics for crimes of manslaughter: Salah v R [2009] NSWCCA 2 at [40]; Jones v R [2009] NSWCCA 169 at [41]. To the extent that sentencing statistics for manslaughter are taken into account, there is no warrant for a sentencing judge to confine attention to statistics for offences dealt with in the District Court for this class of offence.

The appropriate sentence

64 We have concluded that a significant period of full-time imprisonment was required, at first instance, having regard to the objectively serious crime committed by Mr Carroll and the need properly to reflect general deterrence. This approach was necessary even allowing for Mr Carroll’s strong subjective case.

65 It was therefore necessary for this Court to sentence Mr Carroll. It is unnecessary to repeat the personal circumstances of Mr Carroll recited by the sentencing judge and which are found at [50] above. Since being first sentenced, Mr Carroll has been buffeted by the operation of the legal system in a manner which must be recognised. He served imprisonment by way of periodic detention between 24 April 2008 and 19 September 2008. He was then incarcerated full-time for seven months between 19 September 2008 and 29 April 2009. His appeal to the High Court was successful. On 29 April 2009, he was given bail over the objection of the Crown. His appeal has been extended in its duration by the passing of retrospective legislation that attracted serious Constitutional challenge. The imposition of these matters upon him can be recognised not to be of his making (other than through the commission of the offence).

66 Affidavits read at the hearing of the Crown appeal have informed the Court of steps taken by him while the Crown appeal has been on foot. Mr Carroll’s evidence as to his life since the night in question point in an understated but clear way to the devastating impact the offence and the sentences of imprisonment have had on him. He has advanced his life as best as he has been able by further education. He has one year to go as an apprentice before he becomes a plumber. His personal circumstances reveal the heavy psychological burden the legal process has had on him. We exclude from consideration that element of double jeopardy precluded by s 68A (see [33] and [34] above).

67 On 9 December 2009, we were of the view that, in the light of the combined periods of periodic and full-time imprisonment and the personal circumstances of Mr Carroll and the strain of the extended legal process over 2008 and 2009, the recognition of the objective seriousness of the offence and the necessary consideration of general deterrence would be satisfied by recognising Mr Carroll’s imprisonment in the past and imposing a further 18 month suspended sentence. This reflected the unique set of circumstances surrounding Mr Carroll by December 2009.

68 For the reasons we have given the application for leave to appeal against the severity of the sentence must be refused.

69 These are our reasons for the making of the orders on 9 December 2009.

70 It has come to our attention that there was an error in order 3 made on 9 December 2009. By reason of the Crimes (Sentencing Procedure) Act 1999, s 12(3) Part 4 of the Act did not apply to require a provision for the commencement of the sentence. The bond commenced from the date of the orders. Any sentence of imprisonment would only commence if and when the suspension order is revoked, in which circumstance the Court would then make an order as to the date upon which the sentence commences.

71 KIRBY J: I agree with Allsop P and Johnson J.

I agree with Allsop P and Johnson J.

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