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7
Court of Criminal Appeal 19 August 2015

Carroll v R

[2015] NSWCCA 219

Assault & violenceHomicideDrugsTraffic & driving
CRIMINAL LAW APPEAL SENTENCING JUDGE PUBLISHING TWO SEPARATE JUDGMENTS

Citation: Carroll v R [2015] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 19 August 2015
Judges: Hoeben CJ at CL, Adams J, McCallum J

Background

The applicant pleaded guilty to charges arising from two entirely separate events. The first was an aggravated dangerous driving offence in August 2009, in which a passenger died after the applicant drove at speed while intoxicated with alcohol, cannabis, and methylamphetamine. The second involved an assault and kidnapping committed with two co-offenders in January 2010.

Both matters came before the same District Court judge and were sentenced on the same day. However, because the 2009 offences concerned the applicant alone while the 2010 offences involved co-offenders sentenced together, the judge dealt with each matter separately and published two distinct sets of sentencing remarks.

The total effective sentence across both matters was 10 years and 9 months with a non-parole period of 8 years and 1 month. The applicant sought leave to appeal, arguing that the split sentencing process produced inconsistent findings about his subjective case and caused the judge to fail properly to apply the principle of totality.

  • Whether the judge's publication of two separate sets of sentencing remarks for offences sentenced on the same day gave rise to inconsistent findings about the applicant's subjective circumstances
  • Whether the totality principle (the requirement that the overall sentence reflect the totality of the offender's criminality without being crushing) was properly applied
  • Whether the degree of accumulation between the two sentences was appropriate
  • Whether an extension of time to appeal should be granted, given the delay

Decision

The Court of Criminal Appeal granted the extension of time, accepting that the applicant had initially been refused legal aid after being advised there were no reasonable prospects of success, and only later secured privately funded advice and a renewed legal aid application. The Crown ultimately did not oppose the extension if the Court found merit in the appeal.

McCallum J, with whom Hoeben CJ at CL and Adams J agreed, found that the split sentencing process, while understandable for practical reasons, was an undesirable approach. Specifically, it created a risk of inconsistent findings and complicated the proper consideration of accumulation, special circumstances, and totality before sentence was passed. The Court found the totality principle had not been properly applied, and that the error manifested in the degree of accumulation rather than in the individual sentences themselves.

The Court declined to disturb the individual terms of imprisonment, accepting the approach in Kentwell v R [2014] HCA 37 that resentencing should not be used to create unwarranted disparity with co-offenders. Instead, the Court increased the degree of concurrency by two years by backdating the commencement date of the kidnapping sentence.

Adams J added a brief observation about the treatment of the applicant's substance abuse disorder. His Honour noted that, although the overall psychiatric condition had been taken into account, it was not appropriate to treat the applicant's addiction as inconsequential simply because he had not engaged with rehabilitation opportunities, given the connection between his addiction and his documented history of severe developmental disadvantage.

Orders Made

  • Extension of time to appeal granted to 11 November 2014
  • Leave to appeal granted
  • The sentence for the offence of specially aggravated kidnapping varied so as to commence on 23 September 2011, with a non-parole period of 4 years and 6 months expiring on 22 March 2016, and a balance of term of 2 years and 8 months expiring on 22 November 2018
  • The applicant eligible for release on parole upon expiration of the non-parole period on 22 March 2016

Key Takeaways

  • Where a judge sentences an offender for separate matters on the same day, publishing entirely separate sentencing remarks creates a risk of inconsistent findings on the subjective case and may impede proper application of accumulation, special circumstances, and totality principles.
  • The totality principle requires a sentencing court to stand back and assess whether the overall sentence, particularly the degree of accumulation, properly reflects the totality of the offender's criminality without being disproportionately severe.
  • In correcting a failure to apply the totality principle, the Court of Criminal Appeal confirmed it is appropriate to adjust the degree of concurrency between sentences rather than disturb the individual sentence terms, particularly where altering individual terms would risk creating disparity with co-offenders.
  • A conviction or sentence will not be disturbed merely because the sentencing process was procedurally untidy; the Court focused on whether the error caused a material outcome, found here in the excessive accumulation.
  • Adams J signalled that a court should exercise caution before treating an offender's failure to engage with rehabilitation opportunities as negating the mitigating relevance of an addiction disorder, especially where that disorder is connected to significant developmental disadvantage.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 6, 52A(2)
- Criminal Appeal Act 1912 (NSW), s 5
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16
- Police Act 1900 (NSW), s 203
- Weapons Prohibition Act 1998 (NSW), s 7

Cases
- Green v R; Quinn v R [2011] HCA 49
- Kentwell v R [2014] HCA 37
- Postiglione v R (1996) 189 CLR 295
- R v Close (1992) 31 NSWLR 743
- R v JRD [2007] NSWCCA 55
- R v Koosman [2004] NSWCCA 359
- R v Whyte (2002) 55 NSWLR 252