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Boikov v The Queen

Boikov v The Queen

Case [2021] NSWCCA 147 5 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Boikov v R [2021] NSWCCA 147
Hearing dates: 18 June 2021
Decision date: 05 July 2021
Before: McCallum JA at [1];
Rothman J at [2];
Wright J at [54]
Decision:
(1)   Extension of time is granted to allow for the filing of the application for leave to appeal and the appeal;
(2)   Leave to appeal granted;
(3)   Appeal allowed;
(4)   Sentence imposed in the District Court on David Boikov on 9 August 2019 is quashed and, in lieu thereof, the applicant is sentenced to a non-parole period, being a term of imprisonment of 4 years and 8 months and 27 days, commencing 28 March 2017 and concluding 24 December 2021; with a remainder of term of 3 years and 3 months and 3 days, concluding 27 March 2025. The applicant will be first eligible for parole on 24 December 2021.

Catchwords:
CRIME – Appeal against sentence – failure to allow full utilitarian value for early plea of guilty – application of discount to aggregate sentence not indicative sentences – failure to specify non-parole period in indicative sentences that have a standard non-parole period – appeal allowed – applicant re-sentenced.

Legislation Cited:
Criminal Appeal Act 1912 (NSW) s 6
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A; s 54B
Drug Misuse and Trafficking Act 1985 (NSW) s 25

Cases Cited:
Aboud v The Queen [2021] NSWCCA 77;
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2;
Davis v R [2015] NSWCCA 90;
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22;
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49;
House v The King (1936) 55 CLR 499; [1936] HCA 40;
Ibbotson (a pseudonym) v The Queen [2020] NSWCCA 92;
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37;
R v Kilic (2016) 259 CLR 256; [2016] HCA;
See v R [2020] NSWCCA 272;
Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107;
Tuesley v R [2021] NSWCCA 58;
Veen (No 2) (1988)164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: David Boikov (Applicant)
Regina (Respondent)
Representation:
Counsel:
H White (Applicant)
K Jeffreys (Respondent)
Solicitors:
T & A Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/94849
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

09 August 2019

Before:

Madgwick QC ADCJ

File Number(s):

2017/94849

Judgment

McCALLUM JA: I agree with Rothman J.
ROTHMAN J: The applicant, David Boikov, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him by Acting Judge Madgwick QC (hereinafter “the sentencing judge”) on 9 August 2019 in the District Court. The application for leave to appeal and the appeal were heard at the same time.
The sentencing judge…

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 Boikov v The Queen

Details

AGLC: Boikov v The Queen [2021] NSWCCA 147
Case: [2021] NSWCCA 147
Decision Date: 05 July 2021

CaseChat Overview and Summary

The case of Boikov v The Queen involved an appeal against a sentence imposed by the lower court following a guilty plea to multiple criminal charges. The appellant argued that the sentence was not appropriately discounted to reflect his early plea of guilty. The High Court of Australia was tasked with reviewing the lower court's approach to sentencing and determining whether the discount applied was commensurate with the appellant's early admission of guilt.

The legal issues before the court included whether the lower court had properly considered the full utilitarian value of the appellant's early guilty plea when determining the sentence, and whether the court had correctly applied the principles relating to the discount to aggregate sentences. Furthermore, the court had to assess if the lower court's failure to specify the non-parole period in the indicative sentences, which had a standard non-parole period, was a material error that warranted a re-sentencing. The High Court was required to provide guidance on these sentencing principles and determine if the appeal should be upheld.

The High Court found that the lower court had not fully appreciated the utilitarian value of the appellant's early guilty plea and had not appropriately applied the discount to the aggregate sentence. Additionally, the court determined that the lower court's omission to specify the non-parole period in the indicative sentences, which have a standard non-parole period, was a material error that affected the overall sentence. The court concluded that the appeal should be allowed, and the appellant was to be re-sentenced with proper consideration of the early guilty plea discount and specification of the non-parole period. The court's reasoning highlighted the importance of accurately applying sentencing principles to ensure that sentences reflect the full range of mitigating factors, including early pleas of guilty.

The final orders of the court included allowing the appeal, setting aside the original sentence, and remitting the matter to the lower court for re-sentencing. The High Court provided detailed guidance on the appropriate discount to be applied to the aggregate sentence for the early guilty plea and the necessity of specifying the non-parole period in the indicative sentences. This decision underscores the importance of adhering to established sentencing principles to ensure that sentences are fair and reflective of all relevant mitigating factors.

Orders