R v Carpenter [2001] NSWCCA 87 (21 March 2001)

Last Updated: 4 April 2001

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Carpenter [2001] NSWCCA 87

FILE NUMBER(S):

60418/00

HEARING DATE(S): 21 March 2001

JUDGMENT DATE: 21/03/2001

PARTIES:

Regina v Steven Carpenter

JUDGMENT OF: Studdert J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/1010

LOWER COURT JUDICIAL OFFICER: Job DCJ

COUNSEL:

L.M.B. Lamprati (Crown)

In person (Applicant)

SOLICITORS:

S.E. O'Connor (Crown)

CATCHWORDS:

LEGISLATION CITED:

Crimes Act

DECISION:

Leave to appeal refused.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60418/00

STUDDERT J

BARR J

Wednesday 21 March 2001

REGINA v STEVEN CARPENTER

JUDGMENT

1 STUDDERT J: The applicant Steven Laurence Carpenter pleaded guilty before Job QC DCJ to an offence of malicious wounding and was sentenced to a total term of four years ten months imprisonment. His Honour found special circumstances and set a minimum term of two years and ten months to commence on 9 September 1999, that being the date of sentence, and to expire on 8 July 2002. The additional term is, of course, to commence on the day following, 9 July 2002.

2 The applicant seeks leave to appeal against the sentence imposed.

3 This offence is in a category for which s 35 of the Crimes Act provides a maximum penalty of seven years imprisonment.

4 His Honour recorded an outline of the facts, drawing upon a statement of facts placed before the court. There was no dispute before the judge, nor can there be dispute before this Court, as to what happened. The applicant has no recollection as to what occurred.

5 Some time after 11.15 pm on Thursday 29 October 1998, the victim of the assault was walking with his female friend along Elliott Street, Balmain when the applicant approached in the opposite direction, being obviously well affected by liquor. The applicant was waving his hand around and said, "I'm the man you're the boy". The victim and his female friend walked past the applicant to the front gate of their premises and the applicant then yelled out, "I'm not finished with you yet". He also addressed the friend of the victim using language which does not require repetition, but which rightly led the victim to become concerned for the safety of his friend. Hence the victim stood in front of the applicant who knifed the victim in the stomach.

6 The victim was taken to hospital, where he was found to have suffered internal injuries and had to have his spleen removed. Other injuries involved two lacerations of the bowel and a wounding of the pancreas.

7 The female friend of the victim saw the applicant the following day and recognised him. The police were alerted and the applicant was arrested. The unit where he was at Balmain was searched and a black handled serrated knife was found in the front left-hand pocket of some jeans. Inquiries led to the tracing of a witness who had seen the applicant at the Unity Hotel at Balmain on the night of and before the offence was committed. He was observed to have the knife obviously used in this offence in his possession in the hotel.

8 The sentencing judge remarked that there was placed before him a psychiatric report of Dr Wong and a psychological report of Ms Hendy. The psychiatric opinion was that it was difficult to determine the applicant's level of intoxication at the time the offence was committed, and the history taken by Dr Wong was that the applicant had no recollection of what had happened. The psychologist's report recorded the applicant's history and his Honour referred to that in his remarks on sentence. It is unnecessary for present purposes to refer to that report in any detail.

9 The applicant did give evidence before the sentencing judge, acknowledging that he must have committed the offence, but said he had no recall of it. He said he was mortified when he found out what he had done and that he deeply regretted it.

10 The judge observed that it was "fairly difficult to imagine a more serious offence of malicious wounding", and it seems to me that the sentencing judge was entitled to reach this conclusion. This was a vicious attack on a person who had done nothing to provoke what happened. The attack involved the use of a knife and this Court has repeatedly expressed its abhorrence concerning the use of knives in the commission of offences.

11 The applicant was originally charged with malicious wounding with intent to inflict grievous bodily harm, but the judge accepted that the applicant pleaded guilty to the lesser charge at the first opportunity and took this into account on sentence.

12 The applicant was born on 2 February 1949 so that he is now fifty-two years of age. He has a lengthy criminal history and the judge accepted that the offences he had committed in the past were probably all alcohol related. The applicant acknowledged before the judge that he had a problem with alcohol and that after his arrest and subsequent bail he entered the William Booth programme and remained at that programme, without interruption for several months when he left due to the religious content of the program. He then spent some time in Odyssey House but eventually left there because of the age disparity between most of the inmates and himself. The applicant told the judge he had reduced his drinking. The judge accepted that the applicant was extremely remorseful for what he had done.

13 In structuring the sentence which was imposed, his Honour found special circumstances in recognition of the need that the applicant would have for counselling when he was released. He also discounted by two months the overall sentence to give some credit for the time spent on the William Booth programme and at Odyssey House. That modest discount was reflected in the minimum term expressed. Were it not for that period the minimum term would have been three years.

14 The applicant, in seeking leave to appeal against the sentence imposed, has appeared before this Court in person. He has made written submissions dated 6 December 2000 in support of his application. He has addressed the Court further today in relation to those written submissions. What the applicant seeks, in essence, is a reduction of the minimum term. A number of reasons have been advanced as to why this Court should interfere and I address them seriatim.

15 Before doing so, however, I should point out, and the applicant should appreciate, that the application before this Court is not by way of a re-hearing. It is the function of this Court to correct error and what is necessary before this Court can intervene is that error, in the process of the proceedings before the District Court should be demonstrated.

16 It was first submitted that the offence was out of the range of previous offences committed. His Honour had before him the details of the applicant's record. He referred to such detail in his sentencing remarks. There is no reason to think that his Honour did not appreciate the detail that was placed before him, and in any event his Honour's concern was to arrive at a penalty, which was appropriate for the offence in respect of which the applicant was to be sentenced by him.

17 It was next submitted that the 1973 conviction of carrying a cutting implement was a false indicator because the applicant had not been given a chance to explain the circumstances behind the events at that time. The conviction in 1973 at Fairfield Court of Petty Sessions was a conviction for carrying a cutting instrument and the applicant was sentenced to three months hard labour for it.

18 The applicant did give evidence of the circumstances surrounding that incident. He told his Honour that his nephew had the cutting implement and there was a domestic argument in which his nephew cut him. He said that he took the knife off his nephew and hid it on his person, and his sister had telephoned the police and the nephew was arrested. So, his Honour had the detail of that account before him.

19 It is to be observed the applicant's record contained two further offences for carrying an offensive weapon, for each of which he was put on probation for eighteen months. Those offences, however, were back in 1984.

20 There is no reason for this Court to believe that the sentencing procedure before his Honour miscarried because the judge attached undue weight to those earlier matters on the applicant's record.

21 The applicant submitted that his mother would suffer hardship by being deprived of the support and care which he could otherwise offer her. The applicant's mother is eighty-four. This Court would readily accept that the applicant's mother would suffer hardship by losing the support and comfort that her son could offer, but that is a circumstance which, regrettably, often exists when a person is sent to prison, having committed a crime. The law requires that hardship experienced must be exceptional before it can be taken into account so as to reduce what would otherwise be an acceptable sentence.

22 Happily, the applicant's mother currently resides with his half-sister and although the applicant's mother may prefer to reside with the applicant her hardship is no doubt being ameliorated somewhat by reason of the care his half-sister is affording.

23 In any event, nothing has been put before this Court such as would warrant intervention by reason of the applicant's separation from his mother and her loss of his support, at the present time and for so long as he is in custody.

24 The applicant submitted that his age and efforts at reform were such that it was unlikely he would re-offend again. His Honour expressly referred to the efforts which the applicant had made to address his drinking problem. His Honour expressly referred to the applicant's remorse. The applicant's efforts in this regard, doubtless influenced his Honour in arriving at the finding of special circumstances. Indeed, this was made clear in the finding of the need for counselling when the applicant is released. However, his Honour had to ensure in the sentence which he structured that the subjective features in the case did not outweigh the assessment of the objective seriousness of the criminal behaviour.

25 I detect no error in his Honour's sentencing remarks nor in the sentence which he imposed. This was, indeed, a serious case of malicious wounding and the sentence imposed was altogether appropriate. I would add that certainly there was no error in the manner in which the sentence was structured and no matter has been placed before this Court which would warrant this Court interfering so as to reduce the minimum term.

26 Accordingly, in this case I would refuse leave to appeal.

27 BARR J: I agree.

28 STUDDERT J: Leave to appeal is refused.

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LAST UPDATED: 29/03/2001