R v McCarroll - [1999] NSWCCA 237

CITATION: R v McCarroll [1999] NSWCCA 237

FILE NUMBER(S): CCA 60345/97

HEARING DATE(S): 16 August 1999

JUDGMENT DATE:
16 August 1999

PARTIES :

Colin McCarroll aka John McCarroll
Regina (NSW)

JUDGMENT OF: Wood CJ at CL; Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/31/0405

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

COUNSEL: Mr. A.P. Cook
Mr. L. Lamprati

SOLICITORS: Joanne Harris
S.E. O'Connor

CATCHWORDS:

DECISION: Leave to appeal granted.; Sentence below quashed.; Applicant to be sentenced to mininimum term of 5 years from 1/6/96 to expire 31/5/2001 and an additional term of 3 years from 1/6/2001.

IN THE COURT OF
CRIMINAL APPEAL
60345/97

WOOD CJ at CL
GREG JAMES J

MONDAY 16 AUGUST 1999
REGINA v COLLIN McCARROLL
JUDGMENT
1   WOOD CJ at CL: The applicant seeks leave to appeal against a minimum term of penal servitude for six years and an additional term of two years imposed upon him by Armitage DCJ in the District Court, following his plea of guilty to one count of armed robbery in company. In sentencing the applicant his Honour took into account one count of goods in custody, and four counts of break enter and steal, included in a Form 1.
2   The plea came on the sixth day of the trial, at the end of the Crown case, at which point the applicant was re-indicted and entered a plea of guilty in place of his earlier plea of not guilty. His counsel confirmed, when the plea was taken, that the principle of common purpose (sic) had been explained to him.
3   It was the Crown case that the applicant was one of two people who had entered the Bi-Lo store at Budgewoi armed with revolvers, and there robbed two Armaguard employees of the sum of $42,500 along with two Smith & Wesson firearms, the property of their employer.
4   After changing his plea the applicant gave evidence, somewhat reluctantly, in the course of which he contended that he was not one of the two men who had entered the store. Rather, he said that he was a person who had waited in a motor vehicle, at the Lake Haven shopping centre, where he met, and then drove to his brother's home the two men who had committed the robbery and who had been driven to the meeting point in a blue Ford. He refused to nominate those involved or otherwise to detail the events, save to assert that he had been given $2000 in cash for his assistance, and, additionally, that he had driven the last of the three vehicles used in the offence.
5   His attitude during the sentencing proceedings is illustrated by the following exchanges:

"HIS HONOUR: Q. You have told me that you were not one of the two people that entered the store?
A. That's right.

Q. Are you going to tell me what your part was?
A. The car.

Q. Well, what do you say your part in the robbery was? I…

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 R v McCarroll

Details

AGLC: R v McCarroll [1999] NSWCCA 237
Case: [1999] NSWCCA 237
Decision Date: 16 August 1999

CaseChat Overview and Summary

The Court of Criminal Appeal heard an application by Colin McCarroll, also known as John McCarroll, to appeal against his sentence imposed by the District Court. McCarroll had pleaded guilty to armed robbery in company and was sentenced to a minimum term of six years and an additional term of two years. The appeal court found that the sentencing judge had failed to properly consider certain mitigating factors, such as the plea of guilty and the fact that McCarroll had been held in protective custody. The appeal court also found that the sentencing judge had not made a sufficiently precise determination of McCarroll's role in the offence.

The legal issues before the appeal court were whether the sentencing judge had erred in failing to consider certain mitigating factors and whether the sentence was manifestly excessive. The appeal court found that the sentencing judge had indeed erred in not considering the mitigating factors and that the sentence, while not manifestly excessive, should be re-assessed due to the special circumstance of McCarroll's continued detention in protective custody.

The appeal court quashed the original sentence and sentenced McCarroll to a minimum term of five years from 1 June 1996 to expire 31 May 2001 and an additional term of three years from 1 June 2001. The court emphasised the importance of considering mitigating factors such as a guilty plea and the need for judges to state their reasons for not reducing a sentence when passing sentence. The appeal court also noted that offences of the kind to which McCarroll had pleaded guilty would attract significant custodial sentences for general and personal deterrence. However, the court took into account the special circumstance of McCarroll's continued detention in protective custody, which made his sentence more onerous than it might otherwise have been.

Orders