Carpenter v R

The appeal 7The applicant relies upon two grounds of appeal: Ground 1: The sentencing judge erred in his determination that the criminal record of the accused was an aggravating factor (for either offence); and Ground 2: The sentencing judge erred in his determination that the sentence imposed for count 4 (the second offence) commence two years after the commencement of the non-parole period for the second count (the first offence).

The evidence on sentence 8A statement of agreed facts was tendered on sentence together with a number of photographs which showed very extensive fire damage throughout the unit and fire damage to the external facing of the unit. The Crown also tendered police facts sheets that related to two previous offences involving the malicious destruction or damage to property contrary to s 195(A) of the Crimes Act recorded as part of the applicant's criminal antecedents. A statement from Mr Nixon was also tendered in which he detailed the extent of the physical and psychological injury he suffered as a consequence of the applicant's offending and its impact on his daily functioning and social life. 9The applicant tendered a report form Dr Nielssen, forensic psychiatrist, and a number of testimonials. He did not give evidence on sentence.

The facts for sentencing purposes 10The applicant had resided in the unit at Leichhardt for a time in 2009 in an intimate relationship with the owner. Some time prior to December 2009, when she terminated the relationship, the applicant moved out. The applicant took up residence at a unit in Petersham. It would appear that there was some continuing contact between them but the relationship was not a close one. 11Some time in March 2010 the owner of the Leichhardt unit arranged for Jeremy Nixon, a friend of long standing, to stay at her unit as she was due to enter hospital for a short period. He travelled from his home in Byron Bay on 19 March 2010. When the applicant was told of the arrangements he reacted jealously and an argument erupted. 12It would appear that the applicant was at the unit early on the morning of 20 March 2010 but left taking with him two bottles of port which he had earlier purchased for the owner. When she woke later that morning she set off to the applicant's unit to retrieve the missing alcohol. She visited a nearby hotel on her return where she remained drinking throughout the afternoon. 13Mr Nixon was sleeping in the spare room in the unit during the afternoon when he was woken by the applicant who threatened to kill him if he did not pack his belongings and leave. Mr Nixon did not know the applicant and told him that he was at the unit with the owner's permission. His attempts to calm the applicant and lure him from the premises were unsuccessful. Mr Nixon went back to the spare room and closed the door behind him. The applicant followed him and tried to force his way in through the closed door. Mr Nixon barricaded the door and went to lie down expecting that the applicant would eventually leave. He fell back to sleep. 14He was woken some unspecified time later by the applicant pushing open the bedroom door holding a burning envelope in one hand and a cigarette lighter in the other. He then knelt down and tried to set alight a towel which was lying over some boxes which contained Mr Nixon's belongings. Mr Nixon succeeded in first knocking the applicant over and then knocking the burning envelope and the cigarette lighter from his hand before forcing him out of the bedroom. He also succeeded in extinguishing the fire. He then closed and barricaded the door a second time. The door to the bedroom locked automatically upon closing. The applicant continued to yell abuse. Mr Nixon went back to sleep. 15He was awoken a second time, on this occasion by loud pounding on the front door by the next door neighbour. He opened the bedroom door to discover that the unit was on fire. He determined that he had the option of either leaping from the bedroom window or attempting to go through the fire to the fire escape by the front door. He chose the latter, in the course of which he sustained the very significant burns to his body. 16The fire brigade was called and the fire was extinguished. 17The extent of Mr Nixon's injuries, including the pain associated with medical treatment he received and the complications that retarded his recovery, was one of the features of the offending the subject of the second offence that his Honour was satisfied placed it within the mid range of offending for the purpose of giving consideration to the standard non-parole period applied to that offence. Mr Nixon was not discharged from hospital until 7 May 2010. 18The applicant was arrested by police at his unit in Petersham later on the afternoon of 20 March 2010. He was in the courtyard drinking alcohol. He later participated in an ERISP (which was not tendered on sentence). He admitted to being at the unit at Leichhardt earlier that afternoon but claimed that he remained at the front door where he argued with the owner about Mr Nixon. He said that as he was leaving he was assaulted by Mr Nixon. He denied lighting the fire.

Subjective features 19The applicant was 51 at the time of the offences. He told Dr Nielssen that he had no memory of the offences. He said that on 20 March 2010 he had consumed a cocktail of drugs and alcohol, comprised of antidepressant and antipsychotic medication, Valium, eight tablets of diazepam, 750ml of Sambucca and a quantity of sherry. He said he had been under treatment for depression since 1995, when he stopped working. 20He had a lengthy criminal record commencing in 1976. He has received the benefit of two separate good behaviour bonds, one in 1995 as a result of a conviction for demanding money with menaces, and a further bond in 2003 for the malicious destruction of property, both of which were breached. The first breach resulted in a fixed term of imprisonment of 3 months and the second breach a suspended sentence. That offence, together with another earlier offence of a similar kind (supported by the tender of the facts sheets earlier referred to), involved the applicant damaging property under the control of the Department of Housing. The offence in February 2003 concerned conflict with a neighbour who the applicant threatened and ordered to leave the housing units before damaging his property. The offence in September 2003 concerned his objection to the Department of Housing's proposal that he leave the premises and move to other premises and the damage he caused in defiance of that proposal. 21The applicant's intelligence was assessed in the normal range. 22Supported by the available medical records, Dr Nielssen diagnosed a substance abuse disorder based upon the applicant's account of longstanding cannabis use, binge drinking and frequent episodes of amnesia whilst under the effects of alcohol. Despite accepting that the applicant's state of intoxication contributed to the offending in the sense that he was unlikely to have committed the offences if sober, his Honour was not satisfied that the applicant's substance abuse disorder mitigated the objective seriousness of his offending. This was not subject to any challenge on the appeal. 23Special circumstances were found on the basis of the applicant's age, the fact that in the ten years prior to the subject offending he had not come to the attention of police, his substance abuse and mental health issues, and the partial accumulation of the sentences.

Ground 1: The sentencing judge erred in his determination that the criminal record of the accused was an aggravating factor (for either offence) 24In his reasons for sentence his Honour said as follows: I have considered s 21A both in terms of mitigating and aggravating factors. The two relevant aggravating factors are that there was a risk of death and that he has a criminal history which is relevant in a Veen sense, that is it is relevant to my assessment of his prospects of rehabilitation and of the need for personal/specific deterrence. 25Although there was no evidence as to the extent of risk of injury to other residents in the unit block in Leichhardt, and no evidence as to the seat of the fire or the means by which it was set and ignited, the extent of damage to the unit temporarily occupied by Mr Nixon as depicted in the photographs was obviously such as to support the inference that the fire was set inside the unit and of sufficient force that it came to the attention of neighbouring residents who raised the alarm. In these circumstances there was a legitimate basis for his Honour finding that the offence was aggravated by presenting a risk of death to others (as provided for in s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999). In any event, there is no challenge to that finding on the appeal. 26In contrast, the applicant complains that his Honour took into account the applicant's criminal history in circumstances where there was no legitimate basis in the evidence for a finding that it operated to aggravate the offending in any relevant sense, and that neither party submitted that he should do so. Although not determinative of this ground of appeal, the Crown emphasised that the applicant's submission that neither party referred to the applicant's prior record is contradicted by the written submissions of counsel who appeared on sentence who made express reference to the offender's criminal history (s 21A(2)(d)), as a statutory feature of aggravation, together with the fact that the offence was committed in a person's home (s 21A(2)(eb)) and that there was a grave risk of death (s 21A(2)(ib)). 27His Honour referred to the applicant's criminal history as relevant in two respects, the first his prospects of rehabilitation, and the second the need for specific deterrence. Irrespective of whether it was strictly accurate for his Honour to refer to Veen v R (No 2) [1988] HCA 14; 164 CLR 465; 33 A Crim R 230 as authority for the proposition that the applicant's criminal record informed the issue of rehabilitation, the applicant does not and could not submit that reference to an offender's criminal history cannot, in an appropriate case, and in accordance with sentencing principles, inform an offender's prospects of rehabilitation and the need for specific deterrence. Importantly, it is not submitted that his Honour has taken the applicant's criminal history into account so as to increase the sentence beyond that which is proportionate to the objective seriousness of the offending (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 per Spigelman CJ at [24]). 28Veen (No 2) remains authority for the proposition that it is legitimate to take into account an offender's prior criminal record when it illuminates the offender's moral culpability or to act as a deterrent to the offender from committing further offences of a like kind (see the joint judgment of Mason CJ, Brennan Dawson and Toohey JJ at [447]). This approach has frequently been endorsed by this Court. 29In R v Berg [2004] NSWCCA 300, an appeal against a sentence for aggravated dangerous driving occasioning death, Howie J (Spigelman CJ and Wood CJ at CL agreeing) said (at [29]): There were two factors which his Honour took into account as aggravating features in relation to s 21A(2). The first was the applicant's criminal record. Much of that record was, in my view, irrelevant. However, there was one matter which was relevant to a consideration of the sentence to be imposed upon the applicant and that was the fact that in 2001 the applicant had been convicted of an offence which appears to have arisen from his use of a vehicle while under the influence of intoxicating liquor. That was a matter which his Honour would have been entitled to take into account as indicating, in accordance with the principle in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 that personal deterrence was a matter which was to be given more significance than might otherwise have been the case. (emphasis added) 30In my view, given the nature of the offences for which the applicant was to be sentenced, and previous offences involving the damage to property of others when he is in conflict with them or acting in revenge at a perceived injustice, it was open to his Honour to regard the need for specific deterrence to feature as part of the synthesis of factors bearing upon the fixing of an appropriate and proportionate sentence. 31In the result, I am not satisfied that his Honour's reference to the significance of the applicant's prior record was productive of error in any material respect, or that it was productive of a more severe penalty than was warranted, having regard to the offending for which the applicant was sentenced and his subjective circumstances. 32I would reject first ground of appeal.

Ground 2: The sentencing judge erred in his determination that the sentence imposed for count 4 (the second offence) commence two years after the commencement of the non-parole period for the second count (the first offence) 33In essence, the applicant submitted that he was entitled to a greater degree of concurrency between the two sentences imposed by his Honour by reason of the fact that the offences arose out of the one incident with what was submitted to be a considerable overlap in the elements of both offences. 34Despite the fact that the offences were committed on the same day and to that extent might be viewed as part of a single episode of criminality, the constituent elements of the offences were sufficiently different (with the second offence involving the infliction of injury while the first offence was limited to an intention to cause bodily injury) and the circumstances in which they were committed of a markedly different degree of seriousness, to justify a substantial increment in the effective sentence. The structure of the sentencing order, with an accumulation of two years between the first and second offences, was well within the exercise of sentencing discretion. In my view, any greater degree of concurrency would have failed to reflect the totality of the applicant's criminality. 35Again, although not determinative, I note that when his Honour openly discussed with both counsel the sentence on the individual counts and the degree of accumulation he proposed, the applicant's counsel conceded that the effective sentence was within an appropriate range. 36The second ground of appeal is not made out. 37The orders I propose are as follows:

1. Leave to appeal granted.
2. Appeal dismissed. 38McCALLUM J: I agree with Fullerton J.

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