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Supreme Court 19 May 2000

REGINA v. CARROLL

[2000] NSWSC 410

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCE EFFECT OF MENTAL ILLNESS ABORIGINALITY REHABILITATION EFFECT OF DRUGS AND ALCOHOL

Citation: Regina v Carroll [2000] NSWSC 410
Court: Supreme Court of New South Wales
Date: 19 May 2000
Judge(s): Greg James J

Background

The offender pleaded guilty to the manslaughter of Stephen Pagett at Kingswood on 17 December 1996. The Crown accepted the plea on the basis of diminished responsibility under s 23A of the Crimes Act 1900 (as it stood before 3 April 1998), with all four psychiatric experts who assessed the offender concurring that his mental responsibility was substantially diminished at the time of the offence.

The circumstances were serious. After spending the day drinking and smoking cannabis, the offender entered a residential premises carrying a loaded shortened shotgun. When the deceased, seated on a lounge, simply asked the offender his name, the offender pointed the gun at him and fired a single shot to the upper chest and throat. The offender then turned the weapon on a second person present and threatened her. The victim was taken to hospital and died in the early hours of 18 December 1996.

Two additional offences were taken into account at sentencing: a common assault on the second person present, and unlawful possession of the shortened shotgun. Both offences arose from the same incident.

  • What sentence was appropriate for manslaughter by reason of diminished responsibility, accounting for the gravity of the offending?
  • How should the offender's mental illness, Aboriginality, and history of substance abuse affect the sentence?
  • What were the appropriate head sentence and non-parole period under the newly commenced Crimes (Sentencing Procedure) Act 1999, including the application of the special circumstances provisions?

Decision

Greg James J noted that all psychiatric evidence firmly established substantially diminished mental responsibility, and that this remained true even setting aside the transient effects of drugs and alcohol the offender had consumed on the day of the killing. The underlying mental condition was serious and independently supported the statutory threshold.

His Honour acknowledged the relevance of the offender's Aboriginality, consistent with the principles in Fernando, and accepted that the offender's mental condition and vulnerability would make any custodial sentence more burdensome than it would be for the general prison population. These factors bore on both the assessment of moral culpability and the conditions under which the sentence would be served.

On the question of the non-parole period, His Honour applied s 44 of the Crimes (Sentencing Procedure) Act 1999, finding special circumstances. Under the new statutory regime, the head sentence is determined first and then the non-parole period is fixed, rather than the previous two-stage process of setting a minimum term and adding an additional term. His Honour noted the Law Reform Commission's observation that the former approach was considered artificial, and applied the revised framework accordingly.

Balancing the seriousness of the offending (including the admitted intent to kill or cause grievous bodily harm, which underpinned the manslaughter plea) against the offender's substantially diminished responsibility, mental illness, Aboriginality, and rehabilitation prospects, His Honour imposed a total sentence of 12 years with a non-parole period of seven and a half years.

Orders Made

  • The offender was convicted of manslaughter by reason of diminished responsibility.
  • Sentenced to imprisonment for 12 years, dated from 19 December 1996.
  • Non-parole period of seven years and six months; earliest parole eligibility date of 18 June 2004.
  • Two additional offences taken into account under s 33 of the Crimes (Sentencing Procedure) Act 1999.
  • Sentencing remarks directed to be provided to the Corrective Services Department and the Parole Board.

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act 1999, sentencing courts determine the head sentence first, then fix the non-parole period, departing from the prior two-stage process of setting a minimum term followed by an additional term.
  • Where special circumstances are established, the court may vary the proportion between the non-parole period and the balance of the sentence, but cannot simply increase the total sentence to reflect those circumstances.
  • Diminished responsibility at sentencing operates to reduce moral culpability, but courts must still ensure the non-parole period adequately reflects the criminality of the conduct, including any additional offences taken into account.
  • Fernando principles were applied, recognising that Aboriginality, background disadvantage, and the effects of substance abuse are relevant considerations at sentencing, distinct from an excuse for offending.
  • A finding of substantially diminished mental responsibility may be supported where all psychiatric evidence concurs, even where the offender was also affected by drugs and alcohol at the time of the offence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 33, 44
- Crimes Act 1900 (NSW), ss 23A, 61
- Firearms Act 1989 (NSW), s 14(b)

Cases
- Regina v Previtera (1997) 94 A Crim R 76
- De Simoni (1981) 147 CLR 383
- Veen (No 2) (1988) 165 CLR 465
- Engert (1995) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 56
- R v Henry (1999) 46 NSWLR 346
- Power v Regina (1974) 131 CLR 623
- Bugmy v The Queen (1990) 169 CLR 525
- Leeth v The Commonwealth (1992) 174 CLR 455
- EJ (CCA, unreported, 1 April 1997)
- Tran [1999] NSWSC 1146
- Burke [2000] NSWSC 356
- Wright (CCA, unreported, 28 February 1997)
- B (1993) 68 A Crim R 547
- Leonard (CCA, unreported, 22 November 1996)
- Scognamiglio (1991) 56 A Crim R 81
- Jancek [1999] NSWSC 1126