Carroll v R [2011] NSWCCA 200

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carroll v R [2011] NSWCCA 200 Hearing dates: 14 July 2011 Decision date: 06 September 2011 Jurisdiction: Common Law - Criminal Before: Bathurst CJ at 1 Buddin J at 2 Harrison J at 3 Decision: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence imposed by Freeman DCJ on 25 June 2010. 3. In lieu of the sentence imposed by Freeman DCJ the applicant is sentenced to a term of imprisonment of 4 years with a non-parole period of 1 year and 9 months commencing on 16 April 2010 and expiring on 15 January 2012 and a balance of term of 2 years and 3 months commencing on 16 January 2012 and expiring on 15 April 2014. 4. The first day upon which the applicant will be eligible to be released on parole is 15 January 2012. Catchwords: CRIMINAL LAW - appeal against sentence - where sentencing judge erred in finding that the case fell somewhere higher up the scale than the Henry range - no error by sentencing judge in terms of parity with co-offender or consideration of the applicant's affectation by drugs and alcohol at the time of the offence - no error by sentencing judge in finding that the lack of harm to the victim was not a mitigating factor - lesser sentence warranted in law Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482 Category: Principal judgment Parties: Jessica Carroll (Applicant) Crown (Respondent) Representation: D O'Neil (Applicant) F Veltro (Respondent) V Carmody-Smith (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/144993 Decision under appeal Before: Freeman DCJ File Number(s): 2009/217585