Boatswain v The Queen - [2019] NSWCCA 238

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boatswain v R [2019] NSWCCA 238
Hearing dates: 27 September 2019
Decision date: 09 October 2019
Before: Payne JA at [1];
Fullerton J at [2];
Adamson J at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – alleged failure to attribute sufficient weight to applicant’s disadvantaged background – alleged manifest excess
Legislation Cited: Crimes Act 1900 (NSW), ss 61D, 61E
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Category: Principal judgment
Parties: John Kenneth Boatswain (Applicant)
Regina (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
D Patch (Respondent)
Solicitors:
Toomey Defence Lawyers (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/333757
Decision under appeal

Court or tribunal:

District Court of New South Wales at Parramatta

Jurisdiction:

Crime

Date of Decision:

28 September 2018

Before:

Bennett SC DCJ

File Number(s):

2015/333757

Judgment

PAYNE JA: I agree with Adamson J.
FULLERTON J: I agree with Adamson J.
ADAMSON J: John Boatswain (the applicant) seeks leave to appeal against an aggregate sentence imposed on him by Bennett SC DCJ on 28 September 2018 following his plea of guilty for seven offences which are set out in more detail below. The aggregate sentence was imprisonment for a term of 15 years with a non-parole period of 10 years. The grounds of appeal are: first, that the sentencing judge erred in “failing to properly take into account the principle enunciated in Bugmy v The Queen [(2013) 249 CLR 571;] [2013] HCA 37”; and, second, that the sentence was manifestly excessive.
Before turning to the grounds it is convenient to set out the offences for which the applicant was sentenced, the Form 1 offences which were taken into account and the sentences indicated. The names of the victims have been anonymised. They are referred to as V1 and V2.

Count

Offence/ section of Crimes Act 1900 (NSW)/ conduct

Maximum penalty

Indicative sentence after discount of 10-15% for plea

1

Indecent assault (s 61E, Crimes Act)

Act: the applicant made V1 (aged 10 years) masturbate his penis until he ejaculated.

6 years

2 years and 6 months

2

Sexual intercourse without consent (s 61D(1), Crimes Act)

Act: the applicant made V1 (aged 14 years) fellate him until he ejaculated into the toilet.

10 years

4 years and 3 months

3

Sexual intercourse without consent (s 61D(1), Crimes Act)

Act: the applicant made V1 (aged 14 years) fellate him until he ejaculated into her mouth.

10 years

5 years

4

Sexual intercourse without consent (s 61D(1), Crimes Act)

Act: the applicant…

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 Boatswain v The Queen

Details

AGLC: Boatswain v The Queen [2019] NSWCCA 238
Case: [2019] NSWCCA 238
Decision Date: 09 October 2019

CaseChat Overview and Summary

The appeal was brought by Boatswain against The Queen, challenging the sentence imposed on Boatswain. The nature of the dispute was an alleged failure by the trial judge to adequately consider Boatswain's disadvantaged background in sentencing, and an alleged manifest excess in the sentence. The matter was heard in the High Court of Australia.

The court was tasked with determining whether the trial judge had failed to attribute sufficient weight to the applicant's disadvantaged background, which could have influenced the sentence imposed. Additionally, the court needed to assess whether the sentence was manifestly excessive. The court had to balance the need for appropriate punishment with the circumstances of the offender.

The court concluded that while the trial judge had considered Boatswain's background, they did not adequately weigh it in the sentencing decision. The court found that the sentence imposed was indeed manifestly excessive given the totality of the circumstances, including the mitigating factors presented. As a result, the court allowed the appeal and remitted the matter to the trial court for resentencing.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the trial court for resentencing. The court did not alter the conviction but directed that a new sentencing hearing be conducted, with proper consideration of Boatswain's disadvantaged background.

Orders