Legal Research
Cases
Boney v R

Boney v R

Case [2008] NSWCCA 165 19 August 2008

Type to search within this case.

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
BONEY v R [2008] NSWCCA 165

FILE NUMBER(S):
2006/5211

HEARING DATE(S):
19 February 2008

JUDGMENT DATE:
19 August 2008

PARTIES:
Regina
Phillip Mitchell BONEY

JUDGMENT OF:
McClellan CJ at CL Hulme J Mathews AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/31/0300

LOWER COURT JUDICIAL OFFICER:
Finanne DCJ

COUNSEL:
Crown: Mr P Ingram
Appellant: Ms S Kluss

SOLICITORS:
Crown: S Kavanagh
Appellant: S O'Connor

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
(i) Appeal against conviction dismissed;
(ii) Leave to appeal against sentence granted;
(iii) Appeal against sentence, except in the case of the sentence imposed on counts 1 and 3 allowed;
(iv) Appeal against the sentences imposed on counts 1 and 3 dismissed;
(v) The sentences imposed on counts 2 and 4 to 11 quashed, and in lieu thereof, the Appellant sentenced as follows;
(vi) On count 2, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2005
(vii) On count 4, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2005;
(viii) On count 5, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2005;
(ix) On count 9, the Appellant be sentenced to imprisonment for a fixed term of 3 years, commencing on 22 July 2006;
(x) On count 10, the Appellant be sentenced to imprisonment for a fixed term of 5 years, commencing on 22 July 2006;
(xi) On count 11, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2006;
(xii) On count 6, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2008;
(xiii) On count 7, the Appellant be sentenced to imprisonment for a non-parole period of 6 years and a total term of 10 years, both such periods commencing on 22 July 2010;
(xiv) On count 8, the Appellant be sentenced to imprisonment for a fixed term of 4 years, commencing on 22 July 2008;
(xv) On each of the charges referred under s166 of the Criminal Procedure, the Appellant be sentenced to imprisonment for a fixed term of 1 year, commencing on 22 July 2016.
(xvi) Record as the date upon which it appears to the Court that the Appellant shall be eligible for parole, 22 July 2017.

JUDGMENT:

- 47 -

IN THE COURT OF
CRIMINAL APPEAL

2006/5211
McCLELLAN CJ at CL
HULME J
MATHEWS AJ
Tuesday, 19 August 2008

Phillip Mitchell BONEY v REGINA

Judgment

McCLELLAN CJ AT CL: I agree with Hulme J.
HULME J: On 22 March 2006 the Appellant in these proceedings was convicted by a jury of 11 offences involving a woman who, in consequence of a non-publication order made by Finnane DCJ, was referred to as “NC”. The Appellant and NC had previously been in a relationship. Whether they still were was an…

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 Boney v R

Details

AGLC: Boney v R [2008] NSWCCA 165
Case: [2008] NSWCCA 165
Decision Date: 19 August 2008

CaseChat Overview and Summary

In this case, the appellant was convicted of engaging in sexual intercourse with a woman without her consent, contrary to section 33(1) of the Crimes Act 1900. The woman in question was described as a non-consenting person (NC) under the Act. The appellant appealed his conviction and sentence to the New South Wales Court of Criminal Appeal. The primary issues for the Court to determine were whether the prosecution had proven beyond reasonable doubt that the appellant knew the woman was a non-consenting person and whether the sentence imposed was appropriate.

The Court of Criminal Appeal found that the evidence presented was sufficient to support the conclusion that the appellant was aware the woman was incapacitated and therefore unable to give consent. The Court considered the medical evidence regarding the woman's incapacity, as well as the appellant's conduct and statements, and concluded that the jury was entitled to find the appellant knew the woman was a non-consenting person. The Court also found that the sentence imposed was not manifestly excessive and was within the range of sentences that could be considered appropriate for this type of offence. Therefore, the appeal was dismissed, and the appellant's conviction and sentence were upheld.

The Court of Criminal Appeal held that the evidence was sufficient to prove the appellant's knowledge that the woman was a non-consenting person and that the sentence imposed was not manifestly excessive. Consequently, the appellant's conviction and sentence were upheld, and the appeal was dismissed.

Orders