Legal Research
Cases
Carroll v R

Carroll v R

Case [2019] NZCA 172 21 May 2019

Appeal

Causation

Aggravated & Exemplary Damages

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA55/2018
[2019] NZCA 172

BETWEEN	DOMINIQUE KEREHOMA RACHAEL CARROLL Appellant
AND	THE QUEEN Respondent

Hearing:	9 April 2019
Court:	Miller, Collins and Toogood JJ
Counsel:	M E Goodwin and E I Haronga for Appellant E J Hoskin for Respondent
Judgment:	21 May 2019 at 11.00 am

JUDGMENT OF THE COURT

A The application to adduce fresh evidence is granted.

B The appeal is allowed.

CThe sentences are quashed and concurrent sentences of 10 years and six months’ imprisonment are substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Ms Carroll was convicted at trial on one charge of wounding with intent to cause grievous bodily harm and another of aggravated burglary. She was sentenced to 12 years’ imprisonment for each charge, to be served concurrently, with no minimum period. She has abandoned an appeal against conviction but maintains one against sentence.

The facts

The facts as found by Judge Adeane, who presided over the trial, were as follows:[1]
[2]       It is clear enough now that, acting in concert with a 17 year old girl, Ms Carroll went to the Hastings home of the 77 year old male victim. By way of background, he had been the landlord of a young male friend of your accomplice and she had recently spent a night at the house and thereby become aware of the old man’s circumstances and, of course, of his vulnerability. Her friend had since left the house and he was living alone.
[3]       The two of you hatched a plan to rob him and you went to his home late at night. You had armed yourself with a ball peen or engineer's hammer and when you were denied entry to the house you used this, first of all, to smash open glass so that you could unlock the front door to the house and make entry. Inside, the elderly occupant was immediately attacked with blows and kicks, including blows with this hammer. Even when he had been rendered unconscious, a piece of firewood was procured and he was struck about the head with it. There is some dispute about who was immediately responsible for that, but it was used at the very least in the course of a joint combined attack on him.
[4]       Little more needs to be said about the savagery of this attack than that it resulted in three weeks of hospitalisation, extensive lacerations to the head and face requiring remedial stitching, three operations to repair complex fractures to one hand and all the obvious physical and emotional drama resulting from an attack of this kind in these circumstances.
[5]       It is also clear enough that you were the principal dispenser of the violence and you were the individual employing the hammer for that purpose.
[6]       Once this violence had overcome all resistance, the two of you then again jointly plundered the home of any of its modest contents that you could…

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 Carroll v R

Details

AGLC: Carroll v R [2019] NZCA 172
Case: [2019] NZCA 172
Decision Date: 21 May 2019 at 11.00 am

CaseChat Overview and Summary

The case of Carroll v R involved an appeal by the appellant, Dominique Kerehoma Rachael Carroll, against her sentence but not against her convictions for wounding with intent to cause grievous bodily harm and aggravated burglary. The appeal was heard by the Court of Appeal of New Zealand, comprising Miller, Collins, and Toogood JJ, on 9 April 2019. The appellant was originally sentenced to 12 years' imprisonment for each charge, to be served concurrently, with no minimum period. The legal issues before the court were whether the Judge had erred in sentencing the appellant on facts not proved at trial, by adopting a starting point that was too high, and by giving no discount for a long period on electronic monitoring (EM) bail. Additionally, the court had to determine if an allowance ought to be made for cultural factors.

The court found that the Judge did not err in sentencing the appellant on facts not proved at trial, as he had acknowledged a dispute about who was immediately responsible for striking the victim with a piece of firewood. Regarding the starting point, the court agreed with the Crown that the offending fell within band three, and a large number of aggravating factors were present in a serious degree. The court noted that the Judge's evaluation of the appellant's criminal history was incorrect, as she had few convictions for violence. The court found that a modest allowance was appropriate for the time the appellant spent on EM bail, and they considered the cultural report relevant as it pointed to prospects of rehabilitation. In conclusion, the court allowed the appeal, quashed the original sentences, and substituted concurrent sentences of 10 years and six months' imprisonment.

Orders