REGINA v. CARROLL [2001] NSWCCA 511

New South Wales Court of Criminal Appeal

CITATION : REGINA v. CARROLL [2001] NSWCCA 511 FILE NUMBER(S) : CCA No. 60055 of 2001 HEARING DATE(S) : Monday 10 December 2001 JUDGMENT DATE : 10 December 2001

PARTIES : REGINA v. CARROLL, Douglas John Frederick JUDGMENT OF : Greg James J at 1; Whealy J at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0639 LOWER COURT JUDICIAL Nield, DCJ. OFFICER :

COUNSEL : Crown: L.M.B. Lamprati App: P. Byrne, SC. SOLICITORS : Crown: S.E. O'Connor App: Glenn K. Walsh CATCHWORDS : Criminal law - appeal - sentence - discount for plea - special circumstances - disproportion between head sentence and non-parold period - rehabilitation. LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED: Re Attorney General's Application (No. 1) under s.26 Criminal Procedure Act; Regina v. Ponfield (2000) &91) CrimLN 2 DECISION : Leave to appeal allowed. Appeal upheld. Head sentence quashed and a sentence of four years and three months imprisonment imposed, to commence 19 January 2001 and to expire 18 April 2005. There will be a non-parole period of two years and three months, to expire 18 April 2003.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

No. 60055 of 2001 GREG JAMES, J. WHEALY, J.

MONDAY 10 DECEMBER 2001 REGINA v. DOUGLAS JOHN FREDERICK CARROLL

JUDGMENT 1 GREG JAMES, J: This is an application for leave to appeal against a sentence imposed on the applicant in respect of two offences of breaking, entering and stealing charged on indictment. It was also requested that a further six offences be taken into account on a Form 1 document. They were so taken into account. The sentence ultimately imposed upon the applicant comprised a head sentence of five years and three months imprisonment to commence on 18 January 2001 and expire on 18 April 2006, with a non-parole period of two years and three months to expire on 18 April 2003. 2 The several offences which brought the applicant before the Court were comprised firstly in the two counts to which I have referred. Count one was a charge of break, enter and steal, an offence under s.112(1) of the Crimes Act 1900 punishable by a maximum penalty of 14 years imprisonment. Count two charged an offence of aggravated break, enter and steal, punishable under s.112(1) of the Crimes Act 1900 by a maximum penalty of 20 years imprisonment. The other offences taken into account on the Form 1 comprised take and use a conveyance; break, enter and steal; possess housebreaking implements; another offence of possess housebreaking implements; an offence of possess explosive device and an offence of possess prohibited drug. 3 The learned District Court judge, when dealing with those matters, set out those offences and the short factual statements concerning them in chronological order in his remarks on sentence. It is not necessary, in the manner in which this application has been conducted, to recite those offences in detail. 4 The offences commenced on 9 July 1997 and included two offences committed that day, an offence subsequently committed in that month and offences committed in April 1998. It is apparent there had been a considerable delay in the ultimate disposition of the case. 5 The applicant was born on 22 April 1966 and was aged 34 years and nine months at the time of coming forward for sentence. The learned trial judge held that he was a man approaching middle age who knew that he ought not to have been involved in the criminal offences that he had committed. Reference was made by his Honour to extensive material going to the applicant's personal circumstances and, in particular, to material indicating to the trial judge that the applicant had reached the cross-roads of his life, had, to a great extent, moved towards rehabilitation and was a person for whom the prospect of rehabilitation was attended by a considerable air of reality. 6 In the remarks on sentence his Honour looked at individual considerations and, in particular, such matters as the applicant's medical position, marital status, alcohol and drug abuse, character and so forth. It is not contended that there was any error in his Honour approaching the matter in that way or approaching the matter by having regard to the principles to which this court referred in Re Attorney General's Application [No 1] under s.26 Criminal Procedure Act; Regina v. Ponfield (2000) 7(1) CrimLN2. 7 What is contended is that the course the trial judge in due course took was such as to expose an unexpressed error of principle in his conclusion. 8 His Honour had afforded a 25% discount for plea, had concluded contrition was genuine and in the context of the applicant's marital situation said:- "It seems clear he has, as it were, turned his life around. Rehabilitation of an offender is an important consideration, however, it is not an overwhelming consideration." 9 That remark was made by his Honour in the context of his finding of the positive effect upon the applicant of his marital relationship, his weaning from drug abuse, his severing of his former connections and his undertaking of employment, he is seen to be a good father figure to the two children. 10 His Honour reiterated his finding as to the applicant having turned his life around in the context of finding that specific deterrence in this case may not be as important as it might be in another case, but his Honour properly had regard still to general deterrence. His Honour had subsequently in his judgment concluded that, notwithstanding this finding of a positive prospect for rehabilitation, this was not such an exceptional case as would warrant the imposition of a penalty other than full-time custody. That conclusion has not been challenged directly on this appeal. The learned trial judge, however, when it came to the question of ascertaining the appropriate non-parole period, found special circumstances in that the applicant had rehabilitated himself to a marked extent and his Honour continued:- "... and that is positive and he may well be, although one can never be sure, at the cross-roads of his life." 11 His Honour concluded that the appropriate sentence was as I have set out and that the non-parole period should be varied from the statutory formula to provide for a non-parole period of two years and three months and there should be an order that on release the offender should be subject to supervision by the Probation and Parole Service. 12 It has been argued on behalf of the applicant that this disproportion of non-parole period in circumstances where the applicant had apparently to a great extent already rehabilitated himself, was such as to show that his Honour had fallen into error and, if there were such an error detected, it is argued that the court should re-sentence entirely. 13 Applying the provisions of the Criminal Appeal Act 1912 that would mean that if there were error detected it would be for this court to pass such other sentence as is warranted in law and should have been passed. However, I am of the view that I can find no such error in the trial judge's determination as would permit intervention. I do not consider his Honour to have erred in holding this is not such an exceptional case that, having regard in particular to the necessity that the sentence should reflect not only the offences charged on the indictment with those in the Form 1, this court should interfere to the extent of imposing a non-custodial sentence. 14 Notwithstanding, however, the Crown submissions, I do conclude that there has to be found in the disproportion the symptom of error on the trial judge's part. I consider it is not open to me, having regard to the trial judge's findings, to be able to conclude that the head sentence expresses those findings as to rehabilitation which the trial judge made and to which he made reference when referring to the non-parole period. Although the trial judge, as the Crown submitted, made reference to that rehabilitation in the context of applying other principles when determining the head sentence, it does not seem to me that the result, having regard in particular to the discount expressly applied by the trial judge, affords recognition to the remarkable degree of rehabilitation which the applicant had manifested. In my view the head sentence can be seen to be an error and should be quashed. I do not consider, however, that the non-parole period is one that is inappropriate, having regard to the degree of rehabilitation and having regard to the objective seriousness of the offences. 15 I conclude that leave to appeal should be allowed, the appeal upheld, the head sentence quashed and a sentence of four years and three months imprisonment be imposed, to commence on 19 January 2001 and to expire on 18 April 2005 with a non-parole period of two years and three months, to expire on 18 April 2003. 16 WHEALY, J: I agree. 17 GREG JAMES, J: The orders will be as I have proposed. **********