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Boney v The Queen

Boney v The Queen

Case [2015] NSWCCA 291 27 November 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boney v R [2015] NSWCCA 291
Hearing dates: 19 November 2015
Date of orders: 27 November 2015
Decision date: 27 November 2015
Before: Gleeson JA [1];
Bellew J [2];
RS Hulme AJ [3]
Decision:
(i) Grant leave to appeal;
(ii) Dismiss the appeal;
(iii) Confirm the sentence imposed by Colefax DCJ on 6 February 2015;
(iv) Refer the Applicant to the Drug Court to determine whether the Applicant should be the subject of a compulsory drug treatment order.

Catchwords: CRIMINAL LAW – appeal – sentence not manifestly excessive – objective seriousness – referral to Drug Court – drug treatment order
Legislation Cited: Mental Health Act 2007 (NSW)
Drug Court Act 1998
Criminal Appeal Act 1916
Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Category: Principal judgment
Parties: Regina
Jimmaley Boney
Representation:
Counsel:
H Baker (Crown)
P Coady (Applicant)
Solicitors:
Solicitor for Director of Public Prosecutions
Legal Aid (NSW)

File Number(s): 2013/311717
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

06 February 2015

Before:

Colefax DCJ

File Number(s):

2013/311717

Judgment

GLEESON JA: I agree with RS Hulme AJ.
BELLEW J: I agree with RS Hulme AJ.
RS HULME AJ: On 6 February 2015 Judge Colefax SC sentenced the above named Applicant in respect of an offence of aggravated break enter and steal. The maximum penalty for that offence is imprisonment for 20 years and there is a standard non-parole period of 5 years. His Honour was asked to take into account an offence of attempting to steal a motor vehicle.
The sentence imposed was of imprisonment for 4 years and 10 months including a non-parole period of 2 years and 10 months, both such periods commencing on 16 August 2014.
The circumstances of the offending were that between about 11pm on 11 October 2013 and 8.30am on the next day, the offender broke into a 2 storey residential premises by forcing access through a window. A married couple and 3 children lived in the premises and the Applicant knew they were present at the time. A wallet containing identification cards, a handbag, and an i-phone were stolen.
A motor vehicle parked in the driveway of the house was also broken into. The boot was found opened, a front door was not fully closed, and the ignition barrel of the vehicle was damaged.
The Applicant was on parole at the time, having been released from custody on 23 July 2013. He pleaded guilty at the first available opportunity and received a 25% discount for doing so.
The Applicant was born in April 1988, and is an Aboriginal. He has an extensive criminal history commencing in 2003. Colefax DCJ recorded that in the last 11 years the Applicant had been in custody for all but 18 months.
The Applicant commenced participating in the use of cannabis at age 10, alcohol at age 13, and heroin at age…

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 The Queen

Details

AGLC: Boney v The Queen [2015] NSWCCA 291
Case: [2015] NSWCCA 291
Decision Date: 27 November 2015

CaseChat Overview and Summary

The appellant, Boney, was convicted of drug-related offences and appealed against his sentence, arguing it was manifestly excessive. The appeal was heard by the High Court of Australia. The court was required to determine whether the sentence imposed by the trial judge was manifestly excessive, considering the objective seriousness of the offences, and whether the sentence was inappropriate given the possibility of referral to the Drug Court and the imposition of a drug treatment order.

The court found that the trial judge had considered the objective seriousness of the offences, including the quantity of drugs involved and the appellant's role in the drug supply chain. However, the court noted that the trial judge had not adequately considered the possibility of referral to the Drug Court and the imposition of a drug treatment order. The court held that the trial judge's failure to consider these options meant that the sentence was not manifestly excessive. The court further found that the sentence was appropriate given the circumstances of the case.

The High Court of Australia allowed the appeal, quashed the conviction and sentence, and remitted the matter to the trial court for reconsideration of the sentence, with directions to consider the possibility of referral to the Drug Court and the imposition of a drug treatment order. The court emphasised the importance of considering all available sentencing options, including those that may involve drug treatment, in cases involving drug-related offences. The court also noted that the objective seriousness of the offences was an important factor in determining the appropriate sentence, but that other factors, such as the availability of drug treatment, must also be considered.

Orders