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
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 COURTJUDICIAL 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
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
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.