R v McCarroll [1999] NSWCCA 237

New South Wales Court of Criminal Appeal CITATION : R v McCarroll [1999] NSWCCA 237 FILE NUMBER(S) : CCA 60345/97 HEARING DATE(S) : 16 August 1999 JUDGMENT DATE : 16 August 1999

PARTIES : Colin McCarroll aka John McCarroll Regina (NSW) JUDGMENT OF : Wood CJ at CL; Greg James J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/31/0405 LOWER COURT JUDICIAL OFFICER : Armitage DCJ

COUNSEL : Mr. A.P. Cook Mr. L. Lamprati SOLICITORS : Joanne Harris S.E. O'Connor CATCHWORDS : DECISION : Leave to appeal granted.; Sentence below quashed.; Applicant to be sentenced to mininimum term of 5 years from 1/6/96 to expire 31/5/2001 and an additional term of 3 years from 1/6/2001.

IN THE COURT OF CRIMINAL APPEAL

60345/97 WOOD CJ at CL GREG JAMES J MONDAY 16 AUGUST 1999

REGINA v COLLIN McCARROLL

JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal against a minimum term of penal servitude for six years and an additional term of two years imposed upon him by Armitage DCJ in the District Court, following his plea of guilty to one count of armed robbery in company. In sentencing the applicant his Honour took into account one count of goods in custody, and four counts of break enter and steal, included in a Form 1. 2 The plea came on the sixth day of the trial, at the end of the Crown case, at which point the applicant was re-indicted and entered a plea of guilty in place of his earlier plea of not guilty. His counsel confirmed, when the plea was taken, that the principle of common purpose (sic) had been explained to him. 3 It was the Crown case that the applicant was one of two people who had entered the Bi-Lo store at Budgewoi armed with revolvers, and there robbed two Armaguard employees of the sum of $42,500 along with two Smith & Wesson firearms, the property of their employer. 4 After changing his plea the applicant gave evidence, somewhat reluctantly, in the course of which he contended that he was not one of the two men who had entered the store. Rather, he said that he was a person who had waited in a motor vehicle, at the Lake Haven shopping centre, where he met, and then drove to his brother's home the two men who had committed the robbery and who had been driven to the meeting point in a blue Ford. He refused to nominate those involved or otherwise to detail the events, save to assert that he had been given $2000 in cash for his assistance, and, additionally, that he had driven the last of the three vehicles used in the offence. 5 His attitude during the sentencing proceedings is illustrated by the following exchanges: "HIS HONOUR: Q. You have told me that you were not one of the two people that entered the store? A. That's right.