Regina v Carroll [1999] NSWCCA 176

New South Wales Court of Criminal Appeal CITATION : Regina v Carroll [1999] NSWCCA 176 FILE NUMBER(S) : CCA 60462/98 HEARING DATE(S) : 30 June 1999 JUDGMENT DATE : 30 June 1999

PARTIES : Regina v Jason Carroll JUDGMENT OF : Sully J at 34; Bell J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Christie DCJ

COUNSEL : Appellant: J.C. Nicholson SC Respondent: C.K. Maxwell QC SOLICITORS : Appellant: T.A. Murphy Respondent: C.K. Smith CATCHWORDS : CRIMINAL LAW AND PROCEDURE; sentencing; appeal against severity; sentence 'manifestly excessive' ACTS CITED : Crimes Act 1900 Criminal Procedure Act 1986 Pearce v The Queen (1998) 72 ALJR 1416 The Queen v Henry & Ors [1999] NSWCCA 111 CASES CITED: Regina v Jarman (unreported, NSWCCA, 31 July 1995 Regina v Thomson (unreported, NSWCCA, 21 June 1994 Regina v Morgan (unreported, NSWCCA, 24 June 1998 Regina v Ali (unreported, NSWCCA, 9 November 1998) DECISION : See para 34

- 7 - IN THE COURT OF CRIMINAL APPEAL

60462/98

SULLY J BELL J

Wednesday, 30 June 1999 REGINA v Jason Robert CARROLL

JUDGMENT 1 BELL J: Jason Robert Carroll seeks leave to appeal against the severity of a sentence imposed on him in the Sydney District Court on 17 August 1998 upon his plea of guilty to a charge of assault with intent to rob contrary to s 94 of the Crimes Act 1900. 2 On that occasion the applicant was also sentenced upon his pleas of guilty in respect of one count of larceny and one count of assault with intent to prevent detention contrary to s 58 of the Crimes Act. He was sentenced to fixed terms of imprisonment for six months and twelve months respectively to date from 3 March 1998 in relation to these two matters. Those sentences are wholly subsumed in the sentence the subject of the present application and no challenge is made to them. 3 On the charge of assault with intent to rob the applicant was sentenced to a total term of six years penal servitude comprising a minimum term of three years together with an additional term of three years. The minimum term was expressed to commence on 3 March 1998 and to expire on 2 March 2001. 4 The applicant asked the sentencing judge to take into account four matters on a schedule pursuant to s 21 of the Criminal Procedure Act 1986. Those matters comprise two counts of stealing, one count of goods in custody, and one count of possession of implements capable of being used to enter and drive a conveyance. 5 The facts of the assault with intent to rob are as follows. At about 9.45am on 9 February 1998 the applicant was present in Short Street, Double Bay. He approached a woman who was carrying a blue bag from behind and punched her in the back while attempting to take hold of the bag. The bag contained $10,000 in cash, being the takings of the Royal Oak Hotel, Double Bay. The sentencing judge accepted that the applicant was unaware that his intended victim was carrying a substantial sum of cash. His Honour accepted that the applicant had gone to Double Bay that morning looking for shoplifting opportunities. 6 The victim resisted and struggled against the applicant while at the same time calling for help. A number of passers-by apprehended the applicant and held him until the arrival of police. 7 He was spoken to by police at the scene and he said: "I tried to take the lady's bag but I wasn't going to hurt her. I've got a kid of my own."