Citation: Carroll v R [2011] NSWCCA 200
Court: Court of Criminal Appeal, New South Wales
Date: 6 September 2011
Judge(s): Bathurst CJ, Buddin J, Harrison J
Background
The applicant was convicted after trial at Coffs Harbour District Court, alongside a co-accused, on one count of robbery in company. The offending arose from a planned lure: the applicant, who worked as a prostitute and knew the victim, was aware he had won a $1,000 poker machine jackpot. She arranged to visit his premises late at night, then feigned a sprained ankle in a nearby laneway to draw him outside. When the victim stooped to assist her, she grabbed him while the co-accused applied a chokehold. The applicant told the co-accused not to hurt or kill the victim, he released his grip, and the victim was pushed to the ground. The applicant took the victim's wallet. Together, she and the co-accused fled with approximately $300, some papers, and a mobile phone.
The sentencing judge at first instance imposed a total term of 5 years imprisonment, with a non-parole period of 2 years and 3 months. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge erred by placing the offence "higher up the scale" than the range established in the guideline judgment of R v Henry (the benchmark range for robbery offences of a certain character)
- Whether the applicant's sentence was infected by a failure to give adequate weight to disparity with the co-accused's sentence
- Whether the sentencing judge failed to take into account the applicant's state of intoxication from drugs and alcohol at the time of the offence
- Whether the absence of physical harm to the victim should have been treated as a mitigating factor
Decision
Ground 1 (the Henry guideline): The Court of Criminal Appeal found that the sentencing judge erred in characterising the offence as falling "somewhat higher up the scale" than the Henry guideline range. The Henry guideline (applied to robbery in company following R v Murchie) identifies a range of four to five years for a defined category of offending, calibrated in part around the absence of a guilty plea. While the applicant was convicted after trial (which was properly taken into account), the sentencing judge's own findings confirmed several features pulling toward the guideline range: the applicant was relatively young, had limited criminal history, the planning was opportunistic and unsophisticated, the amount was small, and the victim was not vulnerable in the relevant sense. There was no weapon capable of causing death or serious injury, and the actual violence was limited. Those findings did not support an upward departure from the guideline range.
Grounds 2 and 3 (parity and intoxication): The Court found no error in the sentencing judge's treatment of these matters. The parity ground did not establish a real sense of justified grievance sufficient to warrant intervention, and the sentencing judge had not failed to consider the applicant's drug and alcohol use at the time of the offence.
Ground 4 (lack of harm to victim): The Court rejected the argument that the absence of physical injury to the victim was a mitigating factor. The sentencing judge's finding on this point was correct: freedom from harm to the victim is not itself a mitigating circumstance, but rather the absence of an aggravating one.
Re-sentencing: Having found error on Ground 1, the Court proceeded to re-sentence the applicant. It also took into account matters arising since the original sentence: the applicant had been assaulted in custody (which she attributed to her sister's occupation as a police officer), was held in protective custody at some distance from her family and young children, and had completed an impressive range of courses while imprisoned. The Court reduced the head sentence by one year to 4 years and reduced the non-parole period by 6 months to 1 year and 9 months.
Orders Made
- Leave to appeal granted; appeal allowed
- Sentence imposed by Freeman DCJ on 25 June 2010 quashed
- Applicant re-sentenced to 4 years imprisonment, with a non-parole period of 1 year and 9 months commencing 16 April 2010 and expiring 15 January 2012, and a balance of term of 2 years and 3 months commencing 16 January 2012 and expiring 15 April 2014
- First eligible parole date: 15 January 2012
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge who finds multiple characteristics of an offence broadly consistent with the Henry guideline range requires clear justification before placing that offence "higher up the scale" than the guideline.
- Applying R v Murchie, the Henry guideline for armed robbery applies equally to robbery in company, since the legislature prescribes the same maximum penalty for both offences.
- No error was established in the sentencing judge's refusal to treat the victim's lack of physical injury as a mitigating factor: the absence of harm removes a potential aggravating feature, but does not itself operate in mitigation.
- In re-sentencing, adverse custodial conditions, including placement in protective custody and resulting separation from family, were relevant matters the Court of Criminal Appeal took into account alongside post-sentence rehabilitation.
- Disparity between co-offenders' sentences does not automatically warrant intervention; an applicant must demonstrate a real and justified sense of grievance arising from the differential, not merely a difference in outcome.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (the guideline judgment for armed robbery and robbery in company sentencing)
- R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482 (applying the Henry guideline to robbery in company)
- R v Hemsley [2004] NSWCCA 228 (clarifying the discount for early guilty plea within the Henry range)