Regina v Carroll

[1999] NSWSC 825

CITATION:	REGINA v. CARROLL [1999] NSWSC 825
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70217 of 1997
HEARING DATE(S):	9.8.99; 10.8.99; 11.8.99; 12.8.99
JUDGMENT DATE:	12 August 1999
PARTIES :	REGINA v. CARROLL, Phillip Paul
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: P. Hock Prisoner: W. Warwick
SOLICITORS:	Crown: Director of Public Prosecutions Prisoner: Ramsland & Associates
CATCHWORDS:	Conceal serious offence - sentence - plea of guilty - assistance offered - lengthy delay in charging - plea and assistance timely - subjective circumstances - recognisance imposed.
ACTS CITED:	Crimes Act 1900 - ss.316, 439, 442B, 558
DECISION:	Sentence deferred on recognisance

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 70217 of 1997

GREG JAMES, J.

THURSDAY 12 AUGUST 1999

REGINA v. PHILLIP PAUL CARROLL

SENTENCE

1 HIS HONOUR: Phillip Paul Carroll yesterday pleaded guilty before me to one count that on 18 and 19 December 1996 at Sydney in the State of New South Wales, knowing that Lee Dean Carroll had committed the offence of murder, and having information which might be of material assistance in securing the apprehension of Lee Dean Carroll, he failed without reasonable excuse to bring that information to the attention of a member of the Police Service. He had the previous day pleaded guilty to an indictment charging a count to that effect but charging it defectively. He was re-arraigned as a consequence of that. The plea is to an offence under s.316 of the Crimes Act which is punishable by a maximum of two years imprisonment. 2 He was arrested with his uncle, Lee Dean Carroll, on 19 December 1996 following circumstances which were set out in the statement of facts which have been tendered in these proceedings and marked Exhibit A. 3 In summary he had travelled with his uncle to a brothel at Kingswood. It is accepted, in the proceedings against Phillip Paul Carroll, by the Crown that he was unaware that his uncle carried with him to those premises, in a bag, a gun. He saw his uncle walk into the premises and a short time later heard a loud bang and saw a male previously unknown to him stagger out the door apparently wounded and bleeding. Thereafter his uncle ran back down the stairs and passed the prisoner and he, at his uncle's direction, drove his uncle away from the premises. Some time later whilst in the van, his uncle admitted to him that he had shot the victim asserting that he had done so as the victim had attempted to "jump me". He saw that his uncle was in possession of a shortened pump action shotgun carried in the green bag. Later still he became aware that the man shot by his uncle had died. The following day he was arrested. 4 He has set out the circumstances of these events in a statement, Exhibit B in the present proceedings, dated 10 August 1999 in which he has recited his and his uncle's involvement in the killing and subsequent events. That statement is prepared in the familiar form of a statement under the Justices Act embodying the evidence that the prisoner would, if called, give, and rendering the prisoner liable to the sanction that if it contains material wilfully stated to be true which is not so true, he becomes liable to prosecution. He has given evidence before me that the statement is true and correct. 5 In the statement, having recited in detail the events preceding the killing, he has turned to his awareness of what had happened, at paragraphs 10 and onwards. It is clear that from his viewpoint he had become involved in an unexpected event, the nature of which only gradually became clear to him, and that the events that moved from that point moved with some speed such that he felt unable to detach himself from what was occurring. When he was told by his uncle what the uncle had done he says:-

"I thought to myself 'fuck, what have I got myself into'. It was like a nightmare. I wanted to go home and sleep. I wanted to wake up in the morning and think this was just a bad dream."

6 He was told of the shooting by the uncle subsequent to driving the uncle to a relative's home where the uncle's attempts to enter were rejected and where the uncle had, in a flamboyant display, fired the gun again. He went home thereafter and abandoned the uncle. 7 Another uncle approached him at home and there was apparently some family altercation in the offing. He was spoken to by Terry Humphries and it seems as though he, at that period of time sought to remain detached from whatever was going on in the family. 8 The following morning after there had been some family discussion, it was pointed out to him that the death had occurred and that the uncle was in serious trouble. Members of the family drove him to other premises and then in due course he was supplied with or obtained food and camping gear. He and his uncle hid but it was, in due course, a family suggestion that they should surrender. In fact, coincidentally, they were spotted by a police officer whilst walking down the road in the vicinity of a cemetery and both arrested. 9 He was charged with murder. His bail was refused for a period of some three weeks during which he was in custody, firstly at Long Bay and secondly at Parklea. He has given evidence before me that that custody had achieved what criminologists have often referred to as "a short sharp shock". I have no doubt of the truth of his evidence that that short period in custody terrified him, and there is no need to refer to his Aboriginal descent as supporting a basis for him being in such a state of fear. He plainly, personally, disclosed in his evidence that he was. He says he never wants to go back to gaol. He says he never wants to come to court again except as a witness. 10 He impressed me as a not unintelligent man who had realised his position and who had determined, once the Crown were prepared to deal with the matter on an appropriate charge, to plead guilty and to assist the prosecution, at the first reasonable opportunity. I say that, notwithstanding the fact that he was committed for trial, because at the committal the learned magistrate did not conclude that he had complicity in the murder, but did conclude that there was sufficient evidence to warrant committal on a charge of accessory after the fact to the malicious infliction of grievous bodily harm by his uncle. That was on the basis that he knew the victim had been wounded. Subsequently, a bill was found on the basis of a charge of accessory after the fact to murder but that was in respect of the period after he was given information that the victim had died. 11 On what I have been told so far about the strength of the case, one cannot say that either charge of accessory after the fact would necessarily have succeeded at trial. Indeed, on what I have been told so far about identification of the prisoner, on that basis alone a jury may well find a reasonable doubt, even if the identification had gone into evidence. It is not necessary however to speculate as to these matters because the plea of guilty is one to which I accept and which is made to the only charge now preferred. I am required by s.439 of the Crimes Act to have regard to it in considering whether the sentence should accordingly be reduced and I do. 12 I regard this plea, in the circumstances where the nature of the Crown case against this prisoner was only finally ascertained after a senior Crown Prosecutor had been brought into the matter last week, and very shortly before the matter was due for trial, as timely. 13 I am of the view that, in the circumstances, the fact of the plea and the fact of the undertaking given by the prisoner in evidence, to which I am required to have regard under s.442B, to be of very great significance. 14 It is apparent from the prisoner's evidence that his failure to provide the information was occasioned by reason of the events moving at a pace where he felt he had little control, and by the family circumstances which removed from him much practical opportunity to do that which the law required. 15 In those circumstances and having regard to the criteria in s.442B(3), and in particular that the evidence he can give appears to be truthful, complete, reliable, and of considerable significance and usefulness, it seems to me that this is a case in which it is appropriate, notwithstanding the seriousness of the principal crime charged against his uncle, which of course is a matter to be weighed on sentence of those who fail to report, not to impose a custodial penalty. The Crown does not contend otherwise. 16 I have been provided with a report by an officer of the Probation and Parole Service who had the advantage of having a transcript of the evidence given before me by the prisoner yesterday, a copy of the police statement provided by Mr. Carroll, that is Exhibit B, and the opportunity to speak to Mr. Carroll's mother. 17 That report discloses that Mr. Carroll is now aged 22 and resides with his mother and younger sister. He had lived in a close-knit family group until the mother left the family home in 1994 and had thereafter continued to reside with his father, brother and sisters. On the occasion of the family break-up, the father's conduct altered dramatically from disciplinarian to what appears to be that of an alcoholic. Mr. Carroll since leaving school in Year 11 had sought and obtained employment firstly as a motor mechanic apprentice, and then in job after job. Those jobs are not detailed in that report, however the evidence shows they have included working with Telstra as a communications officer, Australia Post as a postal officer, undertaking a course in that regard, and Campbelltown District Co-operation working with Aboriginal people to assist them to gain employment and experience. He has also worked as a gas fitter for some 10 months and as an electricity officer. 18 It is clear from the report and from the other material in evidence that the family became dysfunctional. Mr. Carroll had indicated to the officer that he had attempted but failed to provide himself as a role model for his younger siblings. He was seeking to make up for the loss of the parental guidance and assistance. He lost the motivation to succeed and fell under the influence of some other members of the family including his uncle. His statement is telling when he describes himself coming home from work, to work on his car while the other members of the family and their associates proceeded to smoke marijuana in large quantities for a very extensive period of time. 19 Mr. Carroll himself took up the use of marijuana. He has now, according to the report, rejected marijuana, rarely drinks alcohol and avoids former associates. He wishes to complete his secondary education and receive some formal qualification and wishes to do so while obtaining employment. He has isolated himself from the family and from others in respect to the events giving rise to the charges. 20 I am informed by the report that he has shown remorse and concern for the victim. He suffers from nightmares occasioned by triggered memories of the victim's injuries and face as the victim rushed past him. He is a person who is assessed as suitable for the various options available to be supervised by the Probation Service. 21 The officer concluded the report with the following paragraph:-

"Mr. Carroll is realistic about what may happen to him as a result of his involvement in the offence that occurred. The significant changes in his attitude and behaviour have been supported by his mother. In discussion with him he presents as a young man who believes that something positive can arise out of even the most negative of circumstances."

22 In sentencing him, however, I am required to bear in mind that, under s.442B, I may not reduce a sentence so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence. This qualification does not, strangely, also apply to s.439. Were there not the plea and the offer of assistance, even though this is a matter that might have been dealt with summarily, even though the prisoner is young, the seriousness of the offence would have meant that I would have to consider a term of full-time custody, notwithstanding the circumstances of the prisoner were such that he might have had little practical opportunity to comply with his legal duty and avoid offending under the section. But I need not turn to that. 23 The Crown does not contend that this might be an inappropriate case in which to impose a recognisance. Plainly in the light of the Probation and Parole Service report of the circumstances of the prisoner, this is a case in which supervision as a term of a recognisance would be required. The prisoner has been at liberty since those three weeks in custody, originally reporting once daily, thereafter three times a week, and more recently twice weekly. There has not been the slightest suggestion that he has come adversely under notice for that period, even though he has not received the benefit of the assistance of the Service during that period. But in my view there should be supervision and it would seem to me in the light of the period he has been subject to conditional liberty in that way, an appropriate term for a recognisance on the basis of which I would defer passing sentence under s.558 would be a further two years and six months from today. 24 I am therefore of the view that the sentence should be deferred pursuant to s.558. 25 Phillip Paul Carroll, I defer passing sentence upon you and order your release upon your entering into a recognisance without surety in the sum of $1,000 to be of good behaviour for a period of two years and six months from today and to come up for sentence if called upon. That recognisance shall be further conditioned upon you accepting the supervision of the Probation and Parole Service for so long during the period of the recognisance as that Service deems that supervision to be appropriate. Mr. Carroll you are liable in the event that you breach that recognisance to be called up and re-sentenced. 26 I direct that the solicitor for the prisoner notify the Liverpool office of the Probation and Parole Service of the making of this order. I direct that the prisoner report to that office on or before 5.00 pm Tuesday 17 August 1999 and the recognisance may be taken before any magistrate or justice.
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Last Modified: 08/13/1999