R v Carroll

Case [2008] NSWCCA 218


Appeal Outcome: Special leave application granted by the High Court 13 February 2009 - [2009] HCA Trans 22Appeal allowed 21 April 2009 [2009] HCA 19

New South Wales


Court of Criminal Appeal

CITATION: R v Carroll [2008] NSWCCA 218
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 1 August 2008
 
JUDGMENT DATE: 

19 September 2008
JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 24; Hislop J at 55
DECISION: By majority:
1.Crown appeal upheld.
2.Sentence imposed in the District Court quashed.
3.In lieu the respondent is sentenced to a non-parole period to be served by way of full time custody of 18 months to date from 2 May 2008 and expire on 1 November 2009 with a balance of term of 18 months to commence on 2 November 2009 and expire on 1 May 2011. The respondent shall be released to parole on 1 November 2009 on the usual conditions.
CATCHWORDS: CRIMINAL LAW - Crown appeal against sentence - manslaughter - single head butt to victim - whether sentencing judge inappropriately confined considerations of general deterrence and retribution - young offender - compelling subjective circumstances - whether special circumstances were accorded too much weight - periodic detention - whether objective seriousness of offence required full time custodial sentence
LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
CATEGORY: Principal judgment
CASES CITED: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Douar v The Queen (2005) 159 A Crim R 154
Everett v R [1994] HCA 49; 181 CLR 295
Griffiths v The Queen (1997) 137 CLR 293
IE v R [2008] NSWCCA 70
KT v R [2008] NSWCCA 51
R v AEM Snr & Ors [2002] NSWCCA 58
R v Allpass (1993) 72 A Crim R 561
R v Elliott, unreported, NSWCCA, 14 February 1991
R v GDP (1991) 53 A Crim R 112
R v Hallocoglu (1992) 29 NSWLR 67
R v Jurisic (1998) 45 NSWLR 209
R v Osenkowski (1982) 5 A Crim R 394
R v Pham and Ly (1991) 55 A Crim R 128
R v Rushby [1977] 1 NSWLR 594
R v Schelberger, unreported, NSWCCA, 2 June 1988
R v Tran [1999] NSWCCA 109
R v Wall [2002] NSWCCA 42
The Queen v Dodd (1991) 57 A Crim R 349
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
TEXTS CITED: Judicial Commission – Monograph 23 (2006), Sentenced Homicides in NSW 1994-2001
PARTIES: The Crown (Appellant)
Joshua John Carroll (Respondent)
FILE NUMBER(S): CCA 2007/16176
COUNSEL: P M Miller (Crown/Appellant)
A J Bellanto QC (Respondent)
SOLICITORS: Director of Public Prosecutions
Justin Lewis & Co (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 07/11/0833
LOWER COURT JUDICIAL OFFICER: Flannery DCJ
LOWER COURT DATE OF DECISION: 24 April 2008




                          2007/16176

                          McCLELLAN CJ at CL
                          SIMPSON J
                          HISLOP J

                          FRIDAY, 19 SEPTEMBER 2008
R v CARROLL, Josh
Judgment

1

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R v Carroll [2008] NSWCCA 218
Case
[2008] NSWCCA 218
Decision Date

CaseChat Overview and Summary

The appeal by the Crown against the sentence imposed on the respondent, who had been convicted of manslaughter, was heard by the High Court. The respondent, who was 16 at the time of the incident, delivered a single headbutt to the victim, which resulted in the victim's death. The court had sentenced the respondent to a term of periodic detention. The Crown sought to argue that the sentence was manifestly inadequate and had failed to take into account the objective seriousness of the offence, the need for general deterrence, and the need for retribution. The respondent, on the other hand, submitted that the sentence was appropriate given the compelling subjective circumstances and that the court had given sufficient weight to special circumstances.

The court was required to determine whether the sentencing judge had confined the considerations of general deterrence and retribution too narrowly, and whether the weight given to the special circumstances was excessive. The court also needed to consider whether the objective seriousness of the offence required a full-time custodial sentence, rather than periodic detention.

The court held that the sentence was manifestly inadequate and that the sentencing judge had failed to take into account the need for general deterrence and retribution. The court found that the sentence imposed was not sufficiently punitive, and that it did not reflect the gravity of the offence. The court also held that the weight given to the special circumstances was excessive, and that the objective seriousness of the offence required a full-time custodial sentence. The court noted that periodic detention was not an appropriate sentence for a young offender who had committed a serious offence. The court allowed the appeal, quashed the sentence, and ordered that the respondent be re-sentenced.

Orders

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Background

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Evidence

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Legal Principle Established

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