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Court of Criminal Appeal 16 August 1999

R v McCarroll

[1999] NSWCCA 237

Assault & violenceTheft & propertyFirearms & weapons
DECISION : LEAVE TO APPEAL GRANTED. SENTENCE BELOW QUASHED.

Citation: R v McCarroll [1999] NSWCCA 237
Court: Court of Criminal Appeal, New South Wales
Date: 16 August 1999
Judge(s): Wood CJ at CL; Greg James J

Background

The applicant pleaded guilty on the sixth day of trial, at the close of the Crown case, to one count of armed robbery in company. The offence involved the robbery of two Armaguard employees at a Bi-Lo supermarket, in which $42,500 and two firearms were taken by men armed with revolvers. Additional offences (goods in custody and four counts of break, enter and steal) were taken into account on a Form 1.

The applicant gave evidence at sentencing in which he denied being one of the two men who entered the store. He claimed his role was to wait in a vehicle and drive the offenders away, and that he received $2,000 for his involvement. He refused to name his co-offenders. The sentencing judge found, on the balance of evidence, that the applicant had played a major role in the enterprise and had received proceeds significantly exceeding the $2,000 he admitted to.

Armitage DCJ in the District Court sentenced the applicant to a minimum term of six years and an additional term of two years penal servitude. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to refer to the plea of guilty when imposing sentence, contrary to s 439(1)(a) of the Crimes Act 1900
  • Whether the sentencing judge failed to take into account that the applicant had been held in protective custody, making the sentence more onerous than it would otherwise be
  • Whether the sentencing judge adequately determined the factual basis of the applicant's objective criminality before passing sentence
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal found error on the face of the record in two respects: the sentencing judge made no reference to the plea of guilty when passing sentence, and made no mention of the applicant's protective custody status. Both matters were capable of affecting the outcome of the sentencing exercise.

On the question of the plea, the Court found that the plea came late and carried limited weight as an expression of contrition, given that the applicant maintained a version of events inconsistent with the Crown case. However, it retained some utility in reducing the burden on the system at the conclusion of a contested trial.

As to protective custody, the Court accepted that the applicant's continued detention on protection had arisen from his refusal to identify co-offenders, rather than from any conduct as an informer. Despite that, the system had allowed his protection status to become known. The practical consequences were significant: he was deprived of opportunities for reclassification, work release, and rehabilitation programs. His sentence would therefore be materially more onerous than that of an equivalent offender in the general prison population.

The Court found that although the overall length of the sentence was not manifestly excessive, the burden of serving it on protection constituted a special circumstance justifying a variation in the proportions of the minimum and additional terms. The sentence was restructured to reflect that special circumstance, extending the additional term while reducing the minimum term.

Orders Made

  • Leave to appeal granted
  • Sentence imposed below quashed
  • Applicant sentenced to a minimum term of five years, dating from 1 June 1996 and expiring 31 May 2001
  • Additional term of three years, dating from 1 June 2001

Key Takeaways

  • A late plea of guilty, entered after the conclusion of the Crown case at trial, will carry limited weight as evidence of contrition, though it may still attract some credit for utility in reducing the burden on the court system.
  • Under s 439(1)(a) of the Crimes Act 1900, a sentencing court must address the fact of a plea of guilty. Greg James J confirmed that s 439(2) requires a court that declines to reduce a sentence by reason of a guilty plea to state that fact and its reasons, in terms he described as analogous to the imperative statutory obligation considered by the High Court in Fleming (1988) 158 ALJR 379. Failure to do so may amount to an error of law capable of tainting the sentencing process.
  • Where an offender is held in protective custody, that status constitutes a relevant circumstance in sentencing because it renders the sentence materially more onerous than it would otherwise be, by restricting access to reclassification and rehabilitation opportunities.
  • Protective custody can give rise to a "special circumstance" justifying departure from the standard ratio of minimum to additional term, even where the overall length of the sentence is not in itself excessive.
  • The Court of Criminal Appeal re-exercised the sentencing discretion afresh once error was established, recalibrating the proportions of the sentence rather than simply quashing and remitting.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 439(1)(a) and s 439(2)
- Criminal Procedure Act 1986 (NSW), s 33(2)

Cases
- Fleming (1988) 158 ALJR 379 (High Court)