Citation: R v Carroll [2008] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 19 September 2008
Judges: McClellan CJ at CL, Simpson J, Hislop J
Background
The respondent, a 20-year-old man with no prior criminal history, pleaded guilty in the Local Court to the manslaughter of a 51-year-old man outside a Marrickville hotel in May 2007. Following a verbal altercation in which the victim made threats involving a gun, the respondent delivered a single head butt to the victim's face. The victim fell backwards, struck the back of his head on the road with force, and died ten days later from his injuries.
In the District Court, Flannery DCJ sentenced the respondent to a non-parole period of 18 months and a further term of 18 months, to be served by way of periodic detention. The sentencing judge found the respondent's subjective circumstances to be exceptionally favourable, including his youth, excellent character, and a significant psychological condition requiring specialist treatment unlikely to be available in a full-time custodial setting.
The Crown appealed to the Court of Criminal Appeal, arguing the sentence was manifestly inadequate and that the sentencing judge had improperly limited the weight given to general deterrence and retribution, and had placed excessive weight on special circumstances in ordering periodic rather than full-time custody.
Legal Issues
- Whether the sentencing judge had inappropriately constrained the role of general deterrence and retribution in sentencing for manslaughter
- Whether the judge accorded excessive weight to special circumstances in justifying periodic detention over full-time custody
- Whether the objective seriousness of the offence required a sentence of full-time imprisonment
- Whether compelling subjective circumstances could properly counterbalance the objective gravity of the offence in this case
Decision
The Court divided two to one. The majority, comprising McClellan CJ at CL and Hislop J, allowed the Crown appeal and quashed the District Court sentence. The majority found that the sentencing judge had erred by unduly constraining the relevance of general deterrence and retribution, treating those considerations as less applicable because of the respondent's subjective circumstances in a way that did not reflect the correct approach. The objective seriousness of the offence, a death resulting from a deliberate act of violence in a public place, required a sentence involving full-time custody.
The majority acknowledged the respondent's subjective circumstances were genuinely compelling. However, they held that those circumstances, however favourable, could not override the need for full-time custody where the objective gravity of the offending demanded it. The proportionality between act and consequence, and the requirements of general deterrence and retribution, required that the form of the sentence be corrected.
Simpson J dissented. Her Honour concluded that the sentencing judge had not erred in her approach, and that this was one of those rare cases where the proportion between what the offender actually did, a single blow without prior planning, and its tragic consequences was so significant that the subjective circumstances could properly support the sentence imposed. Simpson J also relied on the expert evidence that the respondent's psychological treatment would almost certainly not be available in a prison environment.
Orders Made
- Crown appeal upheld by majority
- Sentence imposed in the District Court quashed
- Respondent re-sentenced to a non-parole period of 18 months of full-time custody, commencing 2 May 2008 and expiring 1 November 2009, with a balance of term of 18 months commencing 2 November 2009 and expiring 1 May 2011
- Respondent to be released to parole on 1 November 2009 on the usual conditions
Note: Special leave to appeal was subsequently granted by the High Court on 13 February 2009, and the appeal was allowed on 21 April 2009: [2009] HCA 19.
Key Takeaways
- By majority, the Court of Criminal Appeal confirmed that compelling subjective circumstances, even in a genuinely exceptional case, do not displace the requirement for full-time custody where the objective gravity of a manslaughter demands it.
- General deterrence and retribution remain relevant sentencing considerations in cases of fatal public violence, and a sentencing court must not treat those factors as marginal simply because an offender's personal circumstances are favourable.
- A single blow causing death in a public place was characterised by the majority as sufficiently serious, objectively, to require full-time imprisonment regardless of the offender's youth, good character, and rehabilitative prospects.
- In dissent, Simpson J applied the principle from R v Osenkowski that an extreme disproportion between the act itself and its consequences can, in rare cases, properly influence the sentencing outcome, finding this to be such a case.
- The decision was subsequently overturned on High Court appeal, meaning the Court of Criminal Appeal's majority reasoning on this question did not represent the final word on the matter.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987
- Crimes (Sentencing Procedure) Act 1999
Cases:
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Douar v The Queen (2005) 159 A Crim R 154
- Everett v R [1994] HCA 49; 181 CLR 295
- Griffiths v The Queen (1997) 137 CLR 293
- IE v R [2008] NSWCCA 70
- KT v R [2008] NSWCCA 51
- R v AEM Snr & Ors [2002] NSWCCA 58
- R v Allpass (1993) 72 A Crim R 561
- R v GDP (1991) 53 A Crim R 112
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Jurisic (1998) 45 NSWLR 209
- R v Osenkowski (1982) 5 A Crim R 394
- R v Wall [2002] NSWCCA 42
- The Queen v Dodd (1991) 57 A Crim R 349
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584