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Boyd v The Queen

Boyd v The Queen

Case [2012] NSWCCA 279 14 December 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boyd v R [2012] NSWCCA 279
Hearing dates: 30 October 2012
Decision date: 14 December 2012
Before: Basten JA at [1]
Adams J at [2]
R A Hulme J at [3]
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - past criminal history not in itself relevant to finding of remorse or contrition - sentencing judge entitled to reject evidence of remorse
CRIMINAL LAW - appeal against sentence - whether sentencing judge erred in not finding special circumstances - discretionary decision - judge adverted to the issue but declined to make the finding - no error
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Alvares v R; Farache v R [2011] NSWCCA 33
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Caristo v R [2011] NSWCCA 7
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Hili v The Queen; Jones v The Queen [2010] HCA 45, (2010) 242 CLR 520
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Rees v R [2012] NSWCCA 47
R v Wickham [2004] NSWCCA 193
Category: Principal judgment
Parties: Darren John Boyd (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms N Mikhaiel (Applicant)
Ms H Wilson (Respondent)
Solicitors:
Aboriginal Legal Service
Solicitor for Public Prosecutions

File Number(s): 2010/8469
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-03-18 00:00:00

Before:

King DCJ

File Number(s):

2010/245927

Judgment

BASTEN JA: On 30 October 2012 the Court granted the applicant leave to appeal, but dismissed the appeal. I join in the reasons of R A Hulme J for making those orders.

ADAMS J: I agree with the reasons of R A Hulme J.

R A HULME J: At the conclusion of the hearing of the application for leave to appeal against the severity of sentence, the Court made orders granting leave to appeal but dismissing the appeal. These are my reasons for joining in the making of those orders.

Darren John Boyd (the applicant) sought leave to appeal against the severity of sentences imposed upon him in the District Court by his Honour Judge King SC on 18 March 2011 in respect of offences committed on 7 November 2009.

The most serious offence was one of aggravated break, enter and commit serious indictable offence. The circumstance of aggravation was that he was armed with a weapon and the serious indictable offence was intimidation. Section 112(2) of the Crimes Act 1900 prescribes a maximum penalty for this offence of imprisonment for 20 years. A standard non-parole period of 5 years also applies.

The sentence imposed was one of 4 years 8 months with a non-parole period of 3 years 6 months.

Mr Boyd was also sentenced for an offence of destroying or damaging property whilst in company. Section 195(1A)(a) of the Crimes Act prescribes for this offence a maximum penalty of imprisonment for 6 years.

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 Boyd v The Queen

Details

AGLC: Boyd v The Queen [2012] NSWCCA 279
Case: [2012] NSWCCA 279
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case of Boyd v The Queen involved the appellant, Boyd, appealing against his sentence. The nature of the dispute was centred on the sentencing judge's handling of the appellant's criminal history and evidence of remorse. The High Court of Australia was the court that heard the appeal.

The legal issues before the court were primarily concerned with the sentencing judge's decision-making process. The court had to determine if the sentencing judge was correct in disregarding the appellant's criminal history when considering evidence of remorse. Additionally, the court had to examine whether the sentencing judge erred in not finding special circumstances that would warrant a lesser sentence.

The court found that the sentencing judge was entitled to consider and reject the evidence of remorse based on the appellant's past criminal history. The court emphasised that while past criminal history is not in itself a determinant of remorse, it may be relevant in assessing the credibility of the evidence presented. The court also ruled that the sentencing judge had adequately addressed the issue of special circumstances and had made a discretionary decision not to find them. This decision was not considered an error, as the judge had properly adverted to the issue and provided reasons for declining to make the finding.

Orders