Carroll v The Queen [2009] HCA 13

HIGH COURT OF AUSTRALIA

GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ

JOSH CARROLL APPELLANT

AND

THE QUEEN RESPONDENT

Carroll v The Queen

[2009] HCA 13

21 April 2009

S30/2009

ORDER

1. Appeal allowed. 2. Set aside the orders of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 19 September 2008. 3. Remit the matter to the Court of Criminal Appeal of the Supreme Court of New South Wales for rehearing by that Court.

On appeal from the Supreme Court of New South Wales

Representation

T A Game SC with G A Bashir for the appellant (instructed by Legal Aid Commission of New South Wales)

D U Arnott SC with J A Girdham for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Carroll v The Queen

Criminal law – Sentencing – Prosecution appeal against sentence – Where sentence said to be "manifestly inadequate" – Where no specific error of principle or law alleged and case said to fall within last category of error identified in House v The King (1936) 55 CLR 499, namely sentence "unreasonable and plainly unjust" – Whether Court of Criminal Appeal erred in concluding sentence manifestly inadequate – Distinction between fresh consideration of how appellant's conduct to be characterised, and evaluation of adequacy of sentence by reference to matters of fact different from those found by primary judge.

Words and phrases – "manifestly inadequate".

Criminal Appeal Act 1912 (NSW), s 5D(1).

1. GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. The appellant pleaded guilty in the District Court of New South Wales to manslaughter. Outside a hotel where the appellant and friends had been drinking for eight to nine hours, the appellant head‑butted Luigi Criniti, a man who had also been in the hotel. Mr Criniti fell backwards onto the road and hit the back of his head on the roadway, fracturing the back of his skull. Ten days later Mr Criniti died. 2. In the District Court, Judge Flannery sentenced the appellant to imprisonment for a term of three years, to be served by way of periodic detention. A non‑parole period of 18 months was fixed. 3. The Director of Public Prosecutions appealed to the Court of Criminal Appeal against this sentence on the sole ground that the sentence was manifestly inadequate. The Court of Criminal Appeal (McClellan CJ at CL and Hislop J; Simpson J dissenting) held[1] that the appeal should be allowed and the sentence passed by the primary judge quashed. The Court of Criminal Appeal re‑sentenced the appellant to a non‑parole period to be served by way of full‑time custody of 18 months to date from 2 May 2008 (the date upon which the primary judge had sentenced him) with a balance of term of 18 months to commence on 2 November 2009. The Court ordered that the appellant be released to parole on 1 November 2009. 4. By special leave, the appellant appeals to this Court. The determinative issue in this Court is whether the majority of the Court of Criminal Appeal erred in concluding that the sentence imposed by the primary judge was manifestly inadequate. The division of opinion in the Court of Criminal Appeal on that question hinged about differing assessments of the objective gravity of the offence. And, of course, the adequacy of the sentence passed on the appellant could not be determined without close attention to that issue. 5. These reasons will demonstrate that the majority of the Court of Criminal Appeal erred in proceeding on the footing first, that the appellant should not have been provoked by what the victim said, and second, that severe injury was a clearly foreseeable result of a head‑butt delivered to another's face and that death was at least a possibility. Those two steps were the foundation for the majority's conclusion that the primary judge had been wrong to describe the offence as lying "towards the bottom of the range of objective seriousness for offences of manslaughter". Those two steps being erroneous, the appeal to this Court should be allowed and the orders of the Court of Criminal Appeal set aside. The Director's appeal to that Court should be remitted for rehearing by the Court of Criminal Appeal.