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Court of Criminal Appeal 30 June 1999

Regina v Carroll

[1999] NSWCCA 176

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCING APPEAL AGAINST SEVERITY SENTENCE 'MANIFESTLY EXCESSIVE'

Citation: Regina v Carroll [1999] NSWCCA 176
Court: New South Wales Court of Criminal Appeal
Date: 30 June 1999
Judge(s): Bell J; Sully J (agreeing)

Background

The appellant pleaded guilty in the Sydney District Court to assault with intent to rob, along with charges of larceny and assault with intent to prevent lawful detention. The principal offence involved the appellant approaching a woman from behind in Double Bay and punching her while attempting to snatch her bag, which happened to contain $10,000 in hotel takings. The sentencing judge accepted that the appellant did not know about the cash and had not intended to cause injury.

The appellant received a total term of six years penal servitude for the assault with intent to rob, comprising a minimum term of three years and an additional term of three years. Four further summary offences were taken into account on a schedule at sentencing.

A significant aggravating feature was that the principal offence was committed while the appellant was on parole, having previously served a minimum term of two and a half years for armed robbery. The subsequent offences on the schedule were also committed while the appellant was on parole, and several were committed while he was on bail for earlier charges arising from the same spree of offending.

  • Whether the sentence of six years penal servitude for assault with intent to rob was manifestly excessive, having regard to the appellant's plea of guilty, remorse, rehabilitation efforts, and other subjective factors.
  • Whether the sentencing judge erred by failing to apply the approach to multiple-count sentencing outlined in Pearce v The Queen, which requires separate assessment of each offence before considering cumulation and totality.
  • Whether the sentence exceeded what the Court of Criminal Appeal's guideline judgment in The Queen v Henry & Ors indicated was appropriate for comparable offending.

Decision

Bell J rejected the submission that the sentence was manifestly excessive. Her Honour accepted that the sentencing judge was entitled to take a serious view of the offending, given that the appellant was on parole at the time of the principal offence and had a significant prior record including a five-year sentence for armed robbery. The contention that the sentencing judge must have started with a figure well in excess of six years before applying a discount for subjective factors was found to overstate the position.

On the Pearce point, Bell J noted that the High Court's decision had not been delivered at the time of the original sentencing. She also observed that the facts of Pearce were directed at situations where a single act underlies multiple offences, and that the issue did not materially affect the outcome here. The sentences for larceny and use of a weapon to avoid apprehension reflected the sentencing judge's assessment that those offences added less to the overall criminality than the principal charge.

The reliance on the Henry guideline judgment was also dismissed. Bell J noted that the Henry guidelines addressed a profile of young, first-time armed robbery offenders with limited criminal history and minimal violence. The appellant's circumstances were materially different: he had a substantial criminal record, was on parole, and had accumulated further offending while on bail.

Sully J agreed with Bell J's reasons and proposed orders without adding further analysis.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence for assault with intent to rob is not manifestly excessive where the offender commits the offence while on parole, has a prior sentence for armed robbery, and accumulates further offending while on bail.
  • The guideline judgment in The Queen v Henry & Ors concerning armed robbery was found not to govern sentencing for an offender whose profile differs materially from the first-time, young offender with limited criminal history described in that judgment.
  • Where Pearce v The Queen had not yet been decided at the time of original sentencing, and where the facts do not squarely raise the issue of a single act giving rise to multiple offences, non-application of the Pearce approach does not constitute error.
  • A submission that a sentencing judge must have started from an unduly high base figure is not established simply by working backwards from the final sentence and assuming a discount for subjective features. The Court found this reasoning overstated the position on the facts.
  • Offences taken into account on a schedule under s 21 of the Criminal Procedure Act 1986, even if summary in nature, can still constitute significant aggravating circumstances, particularly where each was committed while the offender was on parole or bail.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 94, 97(1)
- Criminal Procedure Act 1986 (NSW), s 21

Cases
- Pearce v The Queen (1998) 72 ALJR 1416
- The Queen v Henry & Ors [1999] NSWCCA 111
- Regina v Jarman (unreported, NSWCCA, 31 July 1995)
- Regina v Thomson (unreported, NSWCCA, 21 June 1994)
- Regina v Morgan (unreported, NSWCCA, 24 June 1998)
- Regina v Ali (unreported, NSWCCA, 9 November 1998)