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Court of Criminal Appeal 10 December 2001

REGINA v. CARROLL

[2001] NSWCCA 511

Theft & property
CRIMINAL LAW APPEAL SENTENCE DISCOUNT FOR PLEA SPECIAL CIRCUMSTANCES PAROLD PERIOD

Citation: Regina v Carroll [2001] NSWCCA 511
Court: NSW Court of Criminal Appeal
Date: 10 December 2001
Judges: Greg James J; Whealy J

Background

The appellant was sentenced in the District Court on two counts of breaking, entering and stealing (one aggravated), with six further offences taken into account on a Form 1. The offences occurred between July 1997 and April 1998, and the case took some time to reach sentence. The head sentence imposed was five years and three months imprisonment, with a non-parole period of two years and three months.

The sentencing judge found that the appellant had undergone a remarkable degree of rehabilitation. He had addressed his drug and alcohol abuse, severed his former criminal associations, taken up employment, and was described as a positive father figure. The judge afforded a 25% discount for plea, found genuine contrition, and identified special circumstances based on rehabilitation when reducing the non-parole period below the statutory norm.

On appeal, the appellant argued that the disproportion between the head sentence and the non-parole period revealed an underlying error in the sentencing exercise, and that the head term had not adequately reflected the rehabilitation findings the judge had himself made.

  • Whether the disproportion between the head sentence and the non-parole period disclosed an unexpressed error of principle in the sentencing exercise.
  • Whether the head sentence adequately reflected the sentencing judge's own findings as to the appellant's rehabilitation.
  • Whether the non-parole period itself was appropriate.
  • Whether, if error was found, the Court of Criminal Appeal should re-sentence entirely.

Decision

Greg James J (Whealy J agreeing) granted leave to appeal and upheld the appeal on the ground that the head sentence failed to give adequate expression to the sentencing judge's own findings about the appellant's rehabilitation. The disproportion between the head term and the (already reduced) non-parole period was treated as a symptom of that error, revealing that the head sentence had not properly integrated the judge's positive rehabilitation findings alongside the 25% plea discount that had been expressly applied.

The Court was clear, however, that the sentencing judge had not erred in declining to impose a non-custodial sentence. The objective seriousness of the offences, and the need to reflect both the indictment charges and the Form 1 matters, meant that full-time custody remained appropriate. General deterrence, which the sentencing judge had correctly kept in view, was unaffected by the rehabilitation findings.

The non-parole period of two years and three months was found to be appropriate and was left undisturbed. Only the head sentence was quashed. The Court substituted a reduced head term of four years and three months, which better expressed the balance between the objective criminality, the plea discount, and the genuine rehabilitation the sentencing judge had found.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Head sentence of five years and three months quashed.
  • Sentence of four years and three months imprisonment substituted, commencing 19 January 2001 and expiring 18 April 2005.
  • Non-parole period of two years and three months confirmed, expiring 18 April 2003.

Key Takeaways

  • A disproportion between a head sentence and a non-parole period can, in appropriate circumstances, serve as a symptom of an underlying error of principle in the sentencing exercise, even where that error was not explicitly stated by the sentencing judge.
  • Where a sentencing judge makes express findings of remarkable rehabilitation and also applies a plea discount, the head sentence must sufficiently reflect both matters; failing to do so may render the head sentence amenable to appellate intervention.
  • Upholding the non-parole period while reducing the head sentence, the Court confirmed that these two components can be assessed separately on appeal, and that error in one does not necessarily infect the other.
  • Rehabilitation, while a significant mitigating factor, does not automatically displace the need for full-time custody where the objective seriousness of the offending and the requirements of general deterrence weigh against a non-custodial outcome.
  • In re-sentencing under the Criminal Appeal Act 1912, the appellate court is required to pass such sentence as is warranted in law and should have been passed at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (breaking, entering and stealing; aggravated breaking, entering and stealing)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Re Attorney General's Application (No 1) under s 26 Criminal Procedure Act; Regina v Ponfield (2000) 7(1) CrimLN 2