Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carroll v R [2015] NSWCCA 219 Hearing dates: 24 March 2015 Date of orders: 19 August 2015 Decision date: 19 August 2015 Before: Hoeben CJ at CL at [1] Adams J at [2] McCallum J at [3] Decision: Time within which the applicant may appeal against his sentences extended to 11 November 2014. Leave to appeal granted. Commencement date for the offence of specially aggravated kidnapping backdated to 23 September 2011. The sentence imposed for the offence of specially aggravated kidnapping varied so as to commence on 23 September 2011 with a non-parole period of 4 years and 6 months expiring on 22 March 2016 and a balance of term of 2 years and 8 months expiring on 22 November 2018. Applicant eligible for release on parole upon the expiration of the non-parole period on 22 March 2016. Catchwords: CRIMINAL LAW – appeal – sentencing – where applicant sentenced by same judge on same day for entirely separate offences – judge publishing two separate judgments – inconsistent findings as to subjective case – whether truncation of remarks resulted in failure properly to apply principle of totality Legislation Cited: Crimes Act 1900 (NSW), ss 6, 52A(2) Criminal Appeal Act 1912 (NSW), s 5 Drug Misuse and Trafficking Act 1985 (NSW), s 10 Poisons and Therapeutic Goods Act 1966 (NSW), s 16 Police Act 1900 (NSW), s 203 Weapons Prohibition Act 1998 (NSW), s 7 Cases Cited: Green v R; Quinn v R [2011] HCA 49 Kentwell v R [2014] HCA 37 Postiglione v R (1996) 189 CLR 295 R v Close (1992) 31 NSWLR 743 R v JRD [2007] NSWCCA 55 R v Koosman [2004] NSWCCA 359 R v Whyte (2002) 55 NSWLR 252 Category: Principal judgment Parties: Shane Carroll (Applicant) Regina (Respondent) Representation: Counsel: T Game SC with G Huxley (Applicant) K Alder (Respondent) Solicitors: AXL Legal Criminal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/19812 Publication restriction: None Decision under appeal Court or tribunal: District Court Date of Decision: 20 January 2012 Before: Freeman DCJ File Number(s): 2010/19812 2010/49313 Judgment 1. HOEBEN CJ at CL: I agree with McCallum J. 2. ADAMS J: I agree with McCallum J with the following comment. The learned sentencing judge considered the applicant's substance abuse disorder to be inconsequential as he had not taken up the opportunity "because he was not cooperating with the Court's attempts to get him to address that very problem". As his Honour found, this disorder resulted (at least substantially) from "his tragic developmental history". Given that the overall psychiatric condition of the applicant was taken into account, it is unnecessary to deal with the conclusion that it was not significant; with respect, however, I would not accept that it is right to treat the applicant's addiction in this way. Dealing with drug addiction is never easy or straightforward and in this case was complicated by the considerable damage inflicted by the applicant's appalling upbringing. That damage was relevant to and a partial explanation for the applicant's inappropriate attitude to the opportunity for rehabilitation. 3. McCALLUM J: Shane Carroll seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to a number of charges arising from two entirely separate events. 4. The first was a driving accident in August 2009 which caused the death of the passenger, a friend of the applicant. The applicant pleaded guilty to an offence of aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 14 years. An offence of driving whilst having methylamphetamine in his blood or urine was taken into account on a Form 1 and a further offence of driving whilst disqualified was dealt with on a s 166 certificate. For the aggravated dangerous driving offence, the applicant was sentenced to imprisonment for 5 years with a non-parole period of 3 years and 9 months. The discount allowed for the plea indicated that the starting point was a term of imprisonment for 6 years. That sentence commenced on 23 February 2010 and had expired before the hearing of the appeal. 5. The second was an assault and kidnapping committed by the applicant and two others in January 2010. Each entered pleas of guilty to common assault, contrary to s 61 of the Crimes Act in respect of the male victim and a specially aggravated offence of detaining the female victim with intent to obtain an advantage, contrary to s 86(3) of the Act. The maximum penalty for common assault is imprisonment for two years. The maximum penalty for the kidnapping offence is imprisonment for 25 years. Five further offences committed by the applicant were dealt with on a s 166 certificate, as follows: 1. A person not being a police officer wearing or possessing a police uniform contrary to s 203(1) of the Police Act 1900 (NSW); 2. Two charges of possessing or using a prohibited weapon without a permit contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW); 3. Possessing a prohibited drug (cannabis) contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW); 4. Possessing or attempting to possess a proscribed, restricted substance (testosterone) contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW). 1. For the offence of assault, the applicant was sentenced to a fixed term of imprisonment for 3 months commencing on 23 June 2013. That sentence was fixed to commence 3 years and 4 months after the commencement of the sentence imposed for the aggravated dangerous driving offence and was accordingly wholly concurrent with that sentence. For the kidnapping offence, the applicant was sentenced to a term of imprisonment with a non-parole period of 4 years and 6 months and a balance of term of 2 years and 8 months. That sentence was fixed to commence upon the expiration of the sentence imposed for the common assault (23 September 2013), and so entailed a substantial degree of accumulation upon the earlier sentences (commencing 2 months before the expiration of the non-parole period for the sentence imposed for the aggravated dangerous driving offence). 2. For the offences on the s 166 certificate the applicant was sentenced to 7 days imprisonment for each of the drug possession offences, two weeks imprisonment for each of the two weapon possession offences and two months imprisonment for the possession of a police uniform. Those sentences were concurrent with each other and with the earlier dangerous driving sentence. 3. The total effective sentence for both the 2009 offences and the 2010 offences was a term of imprisonment for 10 years and 9 months with a non-parole period of 8 years and 1 month. 4. The appeal requires an extension of time, for reasons adequately explained in the applicant's evidence (affidavits of Chris Eliopoulos sworn 11 November 2014 and 23 March 2015). In summary, the applicant was initially advised that there were no reasonable prospects of success and was accordingly refused legal aid for an appeal. Advice funded privately was later provided by Mr Game SC but the applicant did not have the funds to proceed with a privately-funded appeal. At some later point, the applicant thought to make a fresh application for legal aid on the strength of Mr Game's advice and, at that point, aid for an appeal was granted. 5. In my view, those circumstances adequately explain the delay. The Crown ultimately took the position that, if the Court saw merit in the point raised by the appeal, an extension of time should be granted. 6. The applicant was sentenced for the 2009 offences and the 2010 offences by the same judge on the same day. However, the judge dealt with the 2009 offences separately, publishing separate remarks on sentence. The judge's remarks reveal that sentence was passed first for the 2009 offences, which involved the applicant alone. For the 2010 offences, the judge sentenced all three offenders at the same time. Accordingly, there were obvious practical or logistical reasons for proceeding as his Honour did. The applicant contends, however, that, in his treatment of the applicant's subjective case in two separate sets of remarks on sentence, the judge fell into error. 7. The applicant relies on a single ground of appeal, recast during argument as follows: "The sentencing process miscarried by reason of the fact that his Honour sentenced the applicant in two different sets of reasons for sentence. This led his Honour to err in the way in which he dealt with culpability, the applicant's subjective case, the question of special circumstances, accumulation and totality." 1. As submitted on behalf of the applicant, although the course his Honour took was understandable for practical reasons, it is an undesirable approach. The vice of truncating the sentencing process, apart from the risk of inconsistent findings, was that it complicated the task of considering accumulation, special circumstances and totality before proceeding to pass sentence. 2. The driving offence occurred at about 1.00 am at Catherine Field. The applicant had been drinking (he said about six beers). He had also smoked five cones of marijuana and taken methylamphetamine. He left the scene of the accident and accordingly there was no reading as to the precise levels of alcohol or drugs in his blood (he turned himself in the following day). 3. There was no witness to the accident. On the strength of expert evidence it was estimated that the car was travelling at least 120 km per hour in a 60 zone when it left the road. The car veered off the road, ultimately colliding with a wooden electricity pole. A whole portion of the front of the car (including the engine) was dislodged. The passenger was found dead at the scene of the accident. 4. Unsurprisingly, the judge found that there had been "a complete abandonment of responsibility" (a reference to the guideline judgment in R v Whyte (2002) 55 NSWLR 252) and that the applicant's conduct ranked "high in the scale of criminal culpability". It was not possible for the judge to make findings of fact as to the other considerations in the guideline judgment. 5. When first spoken to by police, the applicant had lied, saying that he was in the back seat of the car and that an unnamed female was the driver. He gave evidence at the proceedings on sentence accepting that his deceit had injured the family and friends of the deceased and expressing remorse. 6. At the proceedings on sentence, it was submitted that the applicant's grief at the loss of his friend, the passenger, constituted a form of extra curial punishment. While accepting that the applicant was remorseful, the judge rejected that submission. His Honour also held that remorse and self-punishment could not mitigate gross moral culpability, citing R v Koosman [2004] NSWCCA 359. 7. The judge made reference to the applicant's "tragic developmental history" and his resulting substance abuse disorder but held that this was not of "significant ameliorating or mitigating weight because he was not co-operating with the court's attempts to get him to address that very problem". That was a reference to the fact that, at the time of the offence, the applicant was subject to a s 9 bond for failing or refusing to undergo a breath analysis, a condition of which was that he undergo treatment for drug and alcohol addiction. 8. The judge declined to make a finding of special circumstances. As already noted, his Honour imposed a sentence of imprisonment for 5 years with a non-parole period of 3 years and 9 months. 9. The assault and kidnapping offences were evidently inspired by the fact that the male victim, Glen Mara, owed the sum of $200 to one of the co-offenders, Rikky Sheen. The offences were committed in the context of Sheen's attempts to recover that debt. Sheen arranged to meet Mara at a BP service station. When he arrived, Sheen asked him to get into a car. Mara became apprehensive, seeing the applicant and the other co-offender (Wilkin) in the car. The applicant yelled at Mara "get in the fucking car". Mara ran away and was chased by Wilkin, who was carrying an object. Mara believed he was going to be shot. He was not physically assaulted. The charge of common assault was based on the threat of harm and the fear it caused. 10. Mara had asked his girlfriend to wait nearby in her car. The offenders chased her in the car and forced her to pull over. She was subjected to a terrifying ordeal. She was grabbed by the hair and pulled bodily into the car by the applicant, who asked where Mara was. She replied that she did not know, whereupon the applicant accused her of lying and struck her a number of times to the face. The applicant got into her car and forced her to drive to another location. The co-offenders followed in the other car. After a short stop, all three males got into her car. One of the offenders (not the applicant) found a dress in back of the car which he pulled around her neck to choke her. She was later pulled bodily backwards by the dress around her throat through the gap between the two front seats and into the back seat. She was told to put her head down and held in the back seat with a jacket over her head. Eventually, after seeing police in the area, the offenders left the car and she made good her escape. 11. The judge found that it was a very serious example of the aggravated form of offence under s 86(3). With his customary good judgment, Mr Game did not dispute that characterisation of the offence. 12. The judge found that the roles played by each offender were indistinguishable. Sheen was the instigator, since he was attempting to collect the debt. The applicant had taken the lead in terms of directing their activities and being the first to assault the female victim. Wilkin was the one who strangled her and kept her pressed down on the back seat with her head covered. The judge said that none of the offenders was entitled to be regarded as significantly less culpable than the others. 13. Whenever an offender is sentenced to imprisonment for more than one offence and sentences are accumulated, the principle of totality is invoked. The sentencing judge must give careful consideration as to whether the addition of one sentence upon another, each individually appropriate, will nonetheless produce a total sentence which is excessive (having regard to the totality of the criminality involved) or which is crushing. That principle is equally applicable to sentences imposed for completely different offences committed on different occasions as to sentences imposed for offences committed as part of a connected series: see R v Close (1992) 31 NSWLR 743 at 748B per Hunt CJ at CL. In all cases of multiple sentences, the Court must evaluate the overall criminality involved in all the offences and, where necessary, "adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences": Postiglione v R (1996) 189 CLR 295 at 308 per McHugh J. 14. It cannot be said that it is impossible to apply that principle when giving separate remarks on sentence for separate offences. As already noted, there were practical reasons in the present case for taking that approach. In particular, since the aggravated dangerous driving offence involved a death, the judge may have considered it inappropriate or at least tactless to have the family of the deceased sit through the remarks on sentence in respect of unrelated offences involving two additional offenders committed several months later. In that respect, the judge's approach was a thoughtful one, as indeed were his remarks on sentence in each case. Unfortunately, however, I do think the approach miscarried in the present case, primarily for two reasons. First, it resulted in inconsistent findings on important issues in the applicant's subjective case. In my view, that in itself is a miscarriage of the sentencing process. It is no different than if the judge had made inconsistent findings within the same judgment. 15. Secondly, it impaired the process of intuitive synthesis and resulted in a failure to apply the principle of totality. 16. The vice of dealing with separate offences separately, as if each represented an independent sentencing exercise, was considered by this Court in R v JRD [2007] NSWCCA 55 at [26] to [27] per Howie J; McClellan CJ at CL and Bell J agreeing at [1] and [2]. In that case, as here, the judge approached each sentencing task separately, considering the facts of the first offence, the subjective features of the respondent and then imposing a sentence for that offence before moving on to the next. Justice Howie said: "I do not believe that, in a case where the one offender is being sentenced for a number of offences, it can ever be appropriate to determine the sentence for each offence as if it were the only matter before the Court." 1. His Honour reiterated that the Court must decide the appropriate sentence for each offence independently and, for example, not increase the sentence for one offence because there are others committed by the same offender. However, his Honour emphasised that it is not irrelevant to the determination of the sentences for one offence that the offender is before the Court for sentence on other offences. 2. Those remarks were made in the context of Crown appeal against leniency. The error of the two-judgment approach in that case manifested itself in the judge's failing to have due regard to the significance of persistent offending in assessing the applicant's culpability. Howie J gave the example (at [29]) that the totality of the offender's conduct would be relevant to a finding whether a particular offence was an isolated "fall from grace" or whether it was merely an instance of a course of criminal conduct in which the offender was involved. 3. If, as I apprehend, the judge was moved in the present case to protect the dignity of the sentencing process in respect of the offence involving a death, the remarks could have been given separately without trespassing against those principles. But the sentencing task itself cannot be completed in separate steps. As already noted the principle of totality requires the sentencing judge, having arrived at an appropriate sentence for each individual offence, to stand back and assess the overall criminality so as to ensure relativity with the overall sentence. If separate remarks are to be published (which is generally undesirable) the judge must take care to ensure that he or she has applied the principle of totality before reaching a concluded view as to the overall structure of the sentences to be imposed. The separation of the remarks on sentence should be an editing exercise, not one which informs the sentencing exercise itself. 4. In the present case, notwithstanding what was evidently a careful approach, I think the judge allowed the separation of the two tasks to inform the sentencing exercise itself. Perhaps unwittingly influenced by the likely desire of the family of the deceased for a stern sentence (to which his Honour expressly referred at ROS 6.8), his Honour's findings as to the applicant's subjective case in those remarks were almost dismissive and certainly less favourable to the applicant. 5. The material before the Court at the proceedings on sentence included a report dated 17 November 2011 from Mr Tim Watson-Munro, a consultant forensic psychologist. The report records detail of the applicant's dysfunctional childhood. His father had been involved with the Irish Republican Army and that involvement had produced unhappy experiences. The father had also been physically abusive towards the applicant's mother and sexually abusive towards his sister. The applicant had continuing psychological problems as an adult resulting from his exposure to those traumas and feeling unable to protect the women in the family. As a result, he had developed a substance abuse disorder. Mr Watson-Munro expressed the view that the applicant suffered from a range of symptoms from early childhood reflective of an anxiety disorder compounded by the substance abuse disorder. Those difficulties were further exacerbated when, following the fatal accident giving rise to the aggravated dangerous driving charge, he began to suffer from post-traumatic stress disorder. Mr Watson-Munro attributed the genesis of the applicant's problems to the violence and sexual abuse to which he was exposed as a child. He said, however, that the major destabilising event in his life was the fatal car accident. 6. In his remarks on sentence for the 2009 offences, the judge made no explicit reference to that report. It was referred to only obliquely, in the following remarks: As to the psychological injury consequent upon the death of Mr Luxford, this is difficult to gauge. The closeness of his friendship with Mr Luxford and consequently the measure of his distress appears to be something of which I have only Mr Caroll's word. 1. Those remarks were made in the context of his Honour's consideration of the submission that the level of the applicant's remorse and grief at the loss of his companion, the deceased, constituted a form of extra curial punishment. As already noted, the judge rejected that submission, stating: I appreciate that he has expressed remorse but I am unpersuaded that this is so intense as to justify counting his regrets as part of his punishment. 1. In the remarks on sentence for the January 2010 offences, the judge made extensive, explicit reference to Mr Watson-Munro's report. His Honour set out a lengthy summary of the matters recorded by Mr Watson-Munro and the opinions he had expressed. As to the post-traumatic stress disorder, after reciting events recorded in the report up until the fatal accident, the judge said: On to the frail personality thus wrought, the fatal motor vehicle accident which killed a young man who was his friend produced, as an effect, a post-traumatic stress disorder from which the prisoner is still suffering, and for which he requires treatment. 1. In respect of the 2009 offences, the judge found that the applicant's substance abuse disorder (which was a result of his tragic developmental history) was "relevant but not of significant ameliorating or mitigating weight, because he was not co-operating with the Court's attempts to get him to address that very problem". 2. His Honour also found that there were no special circumstances requiring a departure from the statutory ratio in respect of the August 2009 offences. As submitted on behalf of the applicant, the question of special circumstances could not in truth be properly addressed without considering the applicant's overall criminality and his overall subjective case. 3. In my view, the applicant has also established that the delivery of two sets of reasons affected his Honour's consideration of the principle of totality. No reference was made to the principle of totality in the reasons given in respect of the 2009 offences. In the remarks on sentence for the 2010 offences, the judge explained the commencement date (five months before the completion of the earlier non-parole period) as follows: Thus, whilst it is cumulative upon part of the sentence delivered earlier today, it is also partly concurrent with that sentence. This is in deference to the principle of totality, although the crimes themselves are completely different. 1. In the result, in my view the sentencing process miscarried. In accordance with the principles stated by the High Court in Kentwell v R [2014] HCA 37, it is necessary to re-sentence the applicant. In doing so, it is necessary to have regard to the principle of parity. This Court should not intervene with the sentences imposed upon the applicant in such a way as to create disparity with his co-offenders in the January 2010 offences: see Green v R; Quinn v R [2011] HCA 49. Mr Game submitted that it would not be inconsistent with the principles stated in Kentwell to preserve the terms of sentence determined by the sentencing judge but to increase the degree of concurrency. In my view, that is the appropriate course in the present case. The way in which the sentencing process miscarried was in the failure to apply the principle of totality, which resonates in the degree of accumulation rather than the terms of the individual sentences. 2. Since the sentences imposed in respect of the driving offence and the offence of common assault have expired, the appropriate course in my view is to backdate the commencement date of the sentence imposed for the kidnapping offence. In my view, an appropriate structure to reflect the overall criminality of the offences would be to increase the degree of concurrency by two years, so that the applicant will have served a total sentence (for all offences) of 8 years and 9 months with a non-parole period of 6 years and 1 month. That entails a departure from the statutory ratio of the non-parole period and the balance of term (whether considered by reference to the individual sentence or the total). In my view, that is appropriate so as to preserve the period of supervision on parole contemplated by the sentencing judge. 3. As already noted, the commencement date fixed by the sentencing judge was 23 September 2013. The effect of the order I propose is that the sentence will be taken to have commenced on 23 September 2011 with a non-parole period of 4 years and 6 months expiring on 22 March 2016 and a balance of term of 2 years and 8 months expiring on 22 November 2018. 4. For those reasons, I propose the following orders: 1. That the time within which the applicant may appeal against his sentences be extended to 11 November 2014. 2. That leave to appeal be granted. 3. That the sentence imposed for the offence of specially aggravated kidnapping be varied so as to commence on 23 September 2011 with a non-parole period of 4 years and 6 months expiring on 22 March 2016 and a balance of term of 2 years and 8 months expiring on 22 November 2018. 4. The applicant will be eligible for release on parole upon the expiration of the non-parole period on 22 March 2016. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2015