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24
Court of Criminal Appeal 1 April 2010

R v Carroll, Carroll v R

[2010] NSWCCA 55

Also reported as (2010) 77 NSWLR 45 200 A Crim R 284 (2010) 267 ALR 57
Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER CROWN APPEAL DOUBLE JEOPARDY MANIFESTLY INADEQUATE SENTENCE

Citation: R v Carroll; Carroll v R [2010] NSWCCA 55
Court: New South Wales Court of Criminal Appeal
Date: 1 April 2010
Judges: Spigelman CJ, Allsop P, Kirby J, Howie J, Johnson J

Background

A 20-year-old man head-butted a 51-year-old man outside a suburban hotel in May 2007. The victim fell, struck his head on the pavement, and died several days later. The offender pleaded guilty to manslaughter, which carries a maximum penalty of 25 years imprisonment.

The District Court sentenced the offender to periodic detention with an 18-month non-parole period. The Crown appealed on the sole ground of manifest inadequacy. The Court of Criminal Appeal allowed that appeal in September 2008 and imposed full-time imprisonment. The High Court then set aside those orders and remitted the Crown appeal to the Court of Criminal Appeal for rehearing.

During the rehearing, the NSW Parliament enacted the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009, inserting s 68A into the Crimes (Appeal and Review) Act 2001. That provision, which applied retrospectively to appeals not yet finally determined, prohibits a court from dismissing a prosecution appeal or imposing a less severe sentence than it would otherwise consider appropriate merely because of any double jeopardy element. The offender mounted a constitutional challenge to s 68A, which required the matter to be heard by a five-judge bench.

  • Whether s 68A of the Crimes (Appeal and Review) Act 2001 was constitutionally valid
  • What s 68A means and how far its operation extends in a Crown sentence appeal
  • Whether the original sentence was manifestly inadequate, warranting intervention on the Crown appeal
  • Whether the offender's own application for leave to appeal against sentence should be granted
  • What the appropriate resentence was, taking into account the offender's personal circumstances, the periods of imprisonment already served, and the principles of general deterrence

Decision

The Court upheld the constitutional validity of s 68A, consistent with its simultaneous decision in R v JW [2010] NSWCCA 49, where a differently constituted five-judge bench reached unanimous conclusions on the same provision. The Court accepted that s 68A required it to disregard double jeopardy as a mitigating factor but identified which elements of double jeopardy the section precluded from consideration and which aspects of the offender's circumstances remained legitimately available.

The Court confirmed that the original sentence was manifestly inadequate. The offence involved alcohol-fuelled violence resulting in death, and general deterrence required meaningful recognition in the sentence. The objective seriousness of a fatal head-butt in a public place demanded a more substantial response than periodic detention.

In resentencing, the Court balanced the objective gravity of the offence against the highly unusual circumstances that had accumulated by December 2009. The offender had already served periodic detention and seven months of full-time imprisonment following the first Court of Criminal Appeal decision. His High Court appeal succeeded, he was granted bail, and the subsequent retrospective legislation prolonged an already extended legal process through no fault of his own. The Court also took into account evidence of the offender's rehabilitation, his progress toward a trade qualification, and the psychological burden the proceedings had placed on him.

The Court concluded that, in the unique circumstances present by December 2009, an 18-month suspended sentence adequately recognised the seriousness of the offence and the demands of general deterrence while reflecting all that the offender had already endured. The offender's own application for leave to appeal against sentence was refused.

Orders Made

  • Crown appeal allowed
  • Sentence imposed by the District Court on 24 April 2008 quashed
  • In lieu thereof, a sentence of imprisonment for 18 months imposed, suspended for 18 months upon the offender entering a good behaviour bond under s 12 of the Crimes (Sentencing Procedure) Act 1999
  • Order 3 made on 9 December 2009 amended by removing the words "to commence 9 December 2009" (correcting an error relating to the operation of s 12(3))
  • Leave granted to amend the Crown's notice of appeal to add grounds 1, 2, and 3
  • Leave refused to amend the Crown's notice of appeal to add grounds 4, 5, and 6
  • Offender's application for leave to appeal against sentence refused

Key Takeaways

  • Section 68A of the Crimes (Appeal and Review) Act 2001, which prohibits a court from reducing or dismissing a Crown sentence appeal merely because of double jeopardy, was found to be constitutionally valid by the five-judge bench, consistently with R v JW [2010] NSWCCA 49.
  • The provision applied retrospectively to appeals commenced but not finally determined before its enactment, which the Court accepted without striking down that retrospective operation.
  • A fatal single blow in an alcohol-fuelled public altercation was treated as an objectively serious instance of manslaughter, sufficient to render a periodic detention sentence manifestly inadequate and to require meaningful weight to be given to general deterrence.
  • Where an offender has already served significant periods of periodic and full-time imprisonment and endured an unusually prolonged appellate process partly caused by retrospective legislation, those accumulated circumstances can legitimately inform the exercise of the resentencing discretion (to the extent s 68A does not otherwise preclude them).
  • Under s 12(3) of the Crimes (Sentencing Procedure) Act 1999, a suspended sentence does not require a specified commencement date; any term of imprisonment only commences if and when the suspension order is revoked.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b), s 24
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 12(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Constitution, s 76(i)
- Judiciary Act 1903 (Cth), s 37

Cases:
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- R v Carroll [2008] NSWCCA 218; 188 A Crim R 253
- R v JW [2010] NSWCCA 49
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Kable v Director of Public Prosecutions [1996] HCA 24; 189 CLR 51
- International Finance Trust Co Limited v New South Wales Crime Commission [2009] HCA 49; 84 ALJR 31
- Nicholas v The Queen [1998] HCA 9; 193 CLR 173
- Polyukhovich v The Commonwealth [1991] HCA 32; 172 CLR 501
- Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
- R v Dodd (1991) 57 A Crim R 349
- Hopley v R [2008] NSWCCA 105
- Jones v R [2009] NSWCCA 169
- Salah v R [2009] NSWCCA 2
- R v MD [2005] NSWCCA 342; 156 A Crim R 454
- R v Hill [1983] 3 A Crim R 397