Cohen v R [2011] NSWCCA 165

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cohen v R [2011] NSWCCA 165 Hearing dates: 20 July 2011 Decision date: 28 July 2011 Before: Allsop P at 1; Simpson J at 2; Buddin J at 72 Decision: 1. Leave to appeal granted; 2. Appeal allowed in respect of count 1; 3. The applicant be re-sentenced as follows: Count 2: imprisonment for 4 years, comprised of a non-parole period of 2 years and 6 months commencing on 21 July 2010 and expiring on 20 January 2013, with a balance of term of 1 year and 6 months, expiring on 20 July 2014; Count 1: imprisonment for a term of 4 years, comprised of a non-parole period of 2 years commencing on 21 January 2011 and expiring on 20 January 2013, with a balance of term of 2 years, expiring on 20 January 2015. Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - break and enter of a school by applicant and younger brother - property stolen - arson - fire lit to destroy bloodstain left by applicant - extensive damage caused by fire - at liberty on bail at time of offences - error in finding that aggravated break enter and steal of mid-range of objective gravity - assessment influenced by greater objective seriousness of arson offence - failure to make appropriate allowance for special circumstances - leave granted - appeal allowed - applicant re-sentenced CRIMINAL LAW - particular offences - s 112(2) Crimes Act aggravated break enter and commit serious indictable offence - s 195(1)(b) intentionally causing damage to property by fire Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Huynh [2005] NSWCCA 220 R v McDonald, (unreported, 12 October 1998) R v Silver [1999] NSWCCA 108. R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Category: Principal judgment Parties: Thomas Cohen (Applicant) Regina (Respondent) Representation: H Cox (Applicant) J Pickering/T Smith (Respondent) Aboriginal Legal Service (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/219081 Decision under appeal Date of Decision: 2010-09-20 00:00:00 Before: Woods ADCJ File Number(s): 2009/219081