Carpenter v R [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 1HOEBEN CJ at CL: I agree with Fullerton J. 2FULLERTON 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. 3Both 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. 4The 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. 5For 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. 6Following a finding of special circumstances an effective head sentence of 7 years and 3 months with an effective non-parole period of 4 years and 3 months was imposed.