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 mean, do not tell me if you do not want to, I am not trying to press you, but I would have thought if you are saying that you are not one of the two men that went in that you would want me to know what you say your part in the robbery was.
A. Yeah, I just thought it would've been like, fair enough, it was a proven fact. I didn't commit it. There was no one that could say that I done that job, that they can put me in the place and that's all I can say is that it wasn't me that actually done it.
...

CROWN PROSECUTOR: Q. Well, what did you do at the Lake Haven shopping centre?
A. Well, nothing, I can't, no.

Q. Beg your pardon?
A. I'm not saying anything.

Q. You are not saying anything?
A. No, because like you're saying that I was at the crime, then you're saying that I was in the Ford, then you're saying well what did you do when you were at the Lake Haven shopping centre. What part do you think I was? You're just having a guess. I'm telling you. I didn't do it and that's it.

Q. Well what were you doing at the Lake Haven shopping centre?
A. I was waiting for two blokes to come back.

Q. Come back in what?
A. The Ford.

Q. And you're not prepared to tell the Court who the two blokes are?
A. No I'm not.

Q. Well what were you going to do in relation to these two blokes?
A. What was I going to do to them or do with them?

Q. With them, to them, or whatever?
A. I was planning on doing nothing to them.

Q. Planned on doing nothing at all?
A. No, I was just going to pick them up, that was it.

... ...

Q. What did you do?
A. I done nothing. Look, I can't cop this. I've just pleaded guilty to the charge. Why don't you just do something? You know what I mean. If I wanted to sit here and get cross-examined I would've kept on pleading not guilty and I most probably would've been found not guilty about being at the crime, you know. All I want to do is just get it over and done with, that's all.

Q. Well what did you do?
A. I can't, I don't want to make a statement about anything. I told you my involvement was to pick up the two blokes that did an armed robbery, that was my involvement."

6   There was evidence from Jodie Every, his de facto partner, that on the evening of the robbery the applicant arrived home and tipped a sum of money, said by him to exceed $20,000, on the kitchen table. When asked by her where he had obtained it, he replied that he had robbed an Armaguard at the Budgewoi Bi-Lo. He also said that three cars had been involved, and that the offenders had kept one step ahead of police because they had scanners.
7   Another witness said that, on a subsequent occasion, when discussing the robbery, the applicant had re-enacted a conversation between an offender and a female Armaguard officer which replicated the events of the robbery in question, specifically in relation to the obtaining of a weapon from that guard.
8   Descriptions given by eye witnesses, at the scene, of those involved in effecting the robbery did not tally with the physical appearance of the applicant.
9   The only other factual matters relevant, worthy of note, are that the sum of money actually stolen was $42,500 and that the applicant gave evidence that the amount of money he tipped on to the kitchen table, following his return home, was $11,000 of which $2000 had been received from the robbery, and $9000 of which he said was his own representing moneys that he had earned on work release in Queensland. It can be noted that the banking and other records placed into evidence raised considerable doubt as to that latter assertion.
10   His Honour's findings of fact are encapsulated in the following passage:

"On the whole of the evidence, including the taped conversations, I am not satisfied beyond reasonable doubt that the prisoner was one of the two men who entered the Bi-Lo store. On the other hand, I reject the prisoner's story that the money he tipped on to the kitchen table was only about $11,000 and that it was his own money. I accept Jodie Every's evidence that the accused told her he had something over $20,000 and I accept that he in fact had something over $20,000. I reject the prisoner's story that the only amount he received as proceeds of the robbery was $2000. Although I am not satisfied beyond reasonable doubt that the prisoner entered the store, I am satisfied beyond reasonable doubt that he played a major role in the enterprise and knew exactly what was going on."

11   In sentencing the applicant, his Honour took into account his criminal antecedents, which were lengthy and comprised convictions for break enter and steal, goods in custody, unlawful use of a motor vehicle, larceny, offences relating to the self-administration of drugs, serious motoring offences and, most significantly, a conviction in Queensland for an offence of stealing with actual violence whilst armed and in company, for which the applicant received a sentence of seven years imprisonment. Somewhat euphemistically, his Honour observed that this record was of "no assistance to him".
12   His Honour gave no indication as to whether any credit had been allowed on account of the plea of guilty, either as an indication of contrition on the applicant's part, or by reference to its utility in reducing the time and cost that would have been involved in completing the trial. Nor was any mention made of the fact that the applicant had been held on protection.
13   It was submitted that error was apparent on the face of the record for the reasons that:

(a) in the absence of any reference to the plea, it should be assumed that his Honour had not taken it into account in setting the sentence, contrary to s 439(1)(a) Crimes Act 1900;
(b) in the absence of any mention of the fact that the applicant had been detained in protective custody, his Honour similarly should be taken to have overlooked that circumstance, notwithstanding the fact that it meant that the sentence was more onerous than it would otherwise have been;
(c) his Honour did not determine the factual basis upon which the applicant's objective criminality was to be assessed, and against which sentence was to be passed;
(c) the sentence was manifestly excessive.
I am of the view, having regard to grounds (a) to (c) that leave should be granted.

14 Although it cannot be imagined, in the circumstances in which the plea was entered that it was overlooked, it was a subjective circumstance capable of operating in mitigation of sentence. As such, it was necessary for his Honour to have spelt out the way in which it was taken into account or, if discounted, to explain why that was so: Winchester (1992) 58 A Crim R 345 at 350 to 351, and see S439(2) Crimes Act 1900.
15 Similarly, the circumstance that the applicant might be required to serve a significant part of the sentence on protection was a factor capable of acting in mitigation of sentence. As such, it should have been expressly mentioned and the weight, if any, given to it recorded: Cartwright (1989) 17 NSWLR 243 at 251 and 255. In particular, it might have been expected that his Honour would have stated whether or not it had been regarded as a matter constituting a special circumstance.
16 Additionally, there is the absence of a specific finding as to the precise role of the applicant in the robbery. Absent a precise determination of this matter, no assessment of his objective criminal conduct could have been made. It is essential that the relevant reasoning be revealed, in sufficient detail, and with sufficient precision, so that an offender, and a Court of Criminal Appeal, can know the basis upon which he was sentenced: see Neverman (1989) 43 A Crim R 347 at 349 to 350, and Fleming (1988) 73 ALJR1.
17   The finding that the applicant played a "major" but undefined role in the enterprise, and that his culpability was "not as great as" that of the men who entered the store with weapons, did not, to my mind, involve a sufficiently precise determination of his objective criminality.
18   In these circumstances, I am of the view that leave should be allowed and that this Court should undertake the sentencing exercise afresh.
19 I am of the view that the evidence placed before his Honour properly justified acceptance of a plea of guilty to the offence charged, by reference to the doctrine of common enterprise, as explained in Tangye (1992) 92 A Crim R 545 and McAuliffe (1995) 183 CLR 108. In pleading guilty the applicant admitted the essential legal ingredients of the offence charged: O'Neill (1979) 2 NSWLR 588.
20   The only basis upon which the applicant's role could be determined, in the light of the available evidence was that of a wheelman waiting at a location distant from the scene of the robbery to meet and take away, in a fresh vehicle the two men who had entered the store. The enterprise which he joined was clearly well planned, and his role was important in providing a means by which the escape of the other offenders, and the safe delivery of the proceeds of the robbery, could be secured.
21   No question arises upon the evidence led as to his criminal complicity arising only as an accessory after the fact, who should have been charged and sentenced as such.
22   That the offence was well planned is supported by evidence to the effect that the men who entered the shop wore balaclavas, ski masks or beanies, were armed, that three cars were used, and that those involved had scanners to detect any police interest in them while they were making good their escape.
23 The applicant should be sentenced upon the basis that his role was as I have described, and upon the further basis that he participated knowingly in an offence of a most serious nature, for which the maximum available penalty is penal servitude for twenty years. (section 97(1) Crimes Act 1900).
24   His plea of guilty came very late, and it must be assumed to have been motivated by his assessment of the manner in which his trial had progressed, particularly in the light of the evidence of his de facto and her sister, as well as the tapes that pointed towards him having a direct knowledge of the offence.
25   The approach which he took, when giving evidence, revealed no indication whatsoever of any contrition on his part. No other suggestion of remorse appears. It is plain that he was determined not to give up his co-offenders.
26 I am not persuaded in the circumstances outlined that the Crown case should have been regarded as weak, so as to attract the special element of leniency of which Street CJ spoke in Ellis (1986) 6 NSWLR 603 at 604.
27   This Court has made it clear on many occasions that offences of the kind to which the applicant has pleaded guilty, will attract condign custodial sentences for which a very significant element of general as well as of personal deterrence is appropriate: Henry (1999 NSWCCA). Those observations are particularly appropriate in a case, such as the present, which involves a professional well-planned armed robbery.
28   The circumstance that the applicant has now served three years on protection, and as a consequence will now have great difficulty in returning to mainstream custody must, however, be taken into account. Having regard to the staunchness with which he has refused to give up his co-offenders, and taking into account the further fact that none of those persons have been convicted or sentenced for this crime, it is somewhat surprising that he has continued on protection for so long. The fact, however, remains that the system has allowed this to occur, meaning that his status is known to others, both in custody and outside the prison system. It is likely that it will now be generally assumed that he is an informer, actual or prospective. The consequence is that he is deprived of the opportunity for re-classification, or work release, and of several other measures designed to assist his re-integration into the community. His sentence will be significantly more onerous than it might otherwise have been.
29   It is also the fact that during his time in custody he has undertaken some courses in anger management, general living skills and occupational health and safety.
30   I have reached the conclusion, after undertaking afresh the necessary sentencing exercise, that although the overall sentence pronounced was not manifestly excessive, the fact that the applicant will be required to serve the sentence on protection justifies a finding of a special circumstance which would lead to re-assessment of the proportions in which the sentences should be served.
31   I would propose that the sentence below be quashed, and that in lieu the applicant be sentenced to a minimum term of five years to date from 1 June 1996 and to expire on 31 May 2001 and to an additional term of three years to date from 1 June 2001.
32 GREG JAMES J: I agree. For myself I would add that under s439 of the Crimes Act, subs (2), a court which does not reduce a sentence by reason of a plea of guilty must state that fact, and its reason for not reducing the sentence when passing sentence. That provision is in similar imperative terms to
33 s 33(2) of the Criminal Procedure Act 1986 considered by the High Court in Fleming (1988) 158 ALJR 379. To fail to state the reasons may amount to an error of law which, whilst it may not have the effect of producing a sentence which is, in the upshot, wrong, nonetheless may taint the sentencing process. Therefore it is imperative that judges, whether experienced or not, have regard to that provision.
34   Otherwise, I agree entirely with everything that has been said by the Chief Judge at Common Law.
35   WOOD CJ at CL: The order of the Court will be as I have proposed.

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