Carpenter v The Queen - [2013] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carpenter v R [2013] NSWCCA 130
Hearing dates: 30/05/2013
Decision date: 30 May 2013
Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
McCallum J at [38]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - damaging property with intent to injure a person - reckless grievous bodily harm - applicant set fire to unit whilst victim was asleep inside - whether sentencing judge erred in determination that offender's criminal record was an aggravating factor - partial accumulation
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999)
Cases Cited: Veen v R (No 2) [1988] HCA 14; 164 CLR 465; 33 A Crim R 230
R v Berg [2004] NSWCCA 300
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
Category: Principal judgment
Parties: Craig Carpenter (Applicant)
The Crown (Respondent)
Representation: Counsel:
M Pickin (Applicant)
M Cinque (Crown)
Solicitors:
O'Brien & Hudson Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/71591
Decision under appeal

Date of Decision:

2011-07-15 00:00:00

Before:

Ellis DCJ

File Number(s):

2010/71591

Judgment

HOEBEN CJ at CL: I agree with Fullerton J.

FULLERTON J: The applicant seeks leave to appeal from sentences imposed in the District Court on 15 July 2011 having entered pleas of guilty on the day listed for his trial to two counts accepted by the Crown in full satisfaction of the indictment.

Both offences were committed on 20 March 2010 and involved the applicant attempting to set fire to property in a unit in Leichhardt and then setting fire to that unit knowing that Jeremy Nixon was in the premises.

The first offence was committed in breach of s 196(1)(b) of the Crimes Act 1900 when the applicant attempted to set fire to some property belonging to Mr Nixon, intending to cause him bodily injury. That offence attracted a maximum penalty of 14 years imprisonment. The second offence charged the applicant with recklessly causing Mr Nixon grievous bodily harm contrary to s 35(2) of the Crimes Act when the applicant set fire to the unit whilst Mr Nixon was asleep inside. The second offence attracted a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years. Mr Nixon suffered mixed thickness burns to approximately 25 per cent of his body including both feet, both arms and his back. A skin graft was required to treat the burns to his back.

For the first offence the applicant was sentenced to a non-parole period of 3 years to date from 20 March 2010 (to account for pre-sentence custody) with an additional term of 2 years and 3 months. For the second offence he was sentenced to a non-parole period of 2 years and 3 months to date from 20 March 2012 with an additional term of 3 years.

Following a finding of special circumstances an effective head sentence of 7 years and 3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carpenter v The Queen

Details

AGLC: Carpenter v The Queen [2013] NSWCCA 130
Case: [2013] NSWCCA 130
Decision Date: 30 May 2013

CaseChat Overview and Summary

The case of Carpenter v The Queen was heard in the Court of Appeal, involving the appellant, who was convicted of damaging property with intent to injure a person, and the respondent, the Crown. The appellant set fire to a unit while the victim was asleep inside, resulting in charges of reckless grievous bodily harm. The primary issue before the Court was whether the sentencing judge erred in considering the appellant's criminal record as an aggravating factor in the sentencing process, particularly in relation to the principle of partial accumulation.

The Court of Appeal examined the sentencing judge's consideration of the appellant's criminal history, which included previous offences of a similar nature. The appellant argued that the sentencing judge had improperly accounted for the partial accumulation of prior convictions, which should not have been treated as a separate aggravating factor. The Court considered the legal principles surrounding the assessment of aggravating factors in sentencing and the correct application of the principle of partial accumulation. The Court held that the sentencing judge had indeed erred in their assessment by treating the partial accumulation of prior offences as a distinct aggravating factor, rather than considering it within the broader context of the appellant's criminal history.

In light of the identified error, the Court of Appeal quashed the original sentence and remitted the matter back to the sentencing judge for reconsideration. The Court emphasised the importance of correctly applying legal principles in the sentencing process, particularly in relation to the treatment of prior criminal history. The Court did not provide a definitive new sentence but directed the sentencing judge to reassess the sentence in accordance with the proper legal principles, ensuring that the partial accumulation of prior offences was considered appropriately.

Orders