R v Boctor - [2020] NSWDC 46

District Court

New South Wales

Medium Neutral Citation: R v Boctor [2020] NSWDC 46
Hearing dates: 25 and 26 February 2020
Date of orders: 26 February 2020
Decision date: 26 February 2020
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1)   The offender is convicted;

(2)   I grant bail on the following conditions:

(a)   The offender is to attend court as and when required;

(b)   The offender is to attend Community Corrections, Hornsby office on 5 March 2020 or as otherwise directed by Community Corrections;

(c)   The offender is to comply with all reasonable directions of Community Corrections;

(3)   I direct a Home Detention Assessment Report be obtained;

(4) I indicate that pending the further Home Detention Assessment Report being received, the intention of the Court is that the offender be sentenced to a term of imprisonment of one year and ten months to be served by way of an Intensive Corrections Order, commencing on a date when the Court has before it that report with conditions of home detention pursuant to the Crimes (Administration of Sentences) Regulation 2014, Regulation 189, save that such detention is not to apply during the hours of his work in his tobacconist, gift shop business and that the offender is to perform 250 hours of community service work;

(5)   I indicate that it is the intention of the Court that when the matter is returned following receipt of the Home Detention Assessment Report that the offender be disqualified from holding a New South Wales Driver’s License and from operating a motor vehicle on the roads of New South Wales for a period of 4 years commencing 19 January 2018 and ending 18 January 2022;
(6)   I return the matter before me for sentence hearing (part heard) on 20 April 2020.
Catchwords: CRIME: sentence – s 52A(1)(c) – whether momentary inattention
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1919 (NSW) Crimes (Administration of Sentences) Regulation 2014 (NSW)
Cases Cited: R v Whyte [2002] 55 NSWLR 252; NSWCCA 343 Simmons v R [2020] NSWCCA 16
R v Jurisic [1998] 45 NSWLR 209; NSWSC 423
R v Thomson and Houlton [2000] 49 NSWLR 383; NSWCCA 309
R v Shashati [2018] NSWCCA 167
R v Pisciuneri [2007] NSWCCA 265
R v Pullen [2018] NSWCCA 264
R v Fangaloka [2019] NSWCCA 173
Category: Sentence
Parties: Regina (Crown)
Edmond Boctor (Offender)
Representation:
Counsel:
Crown: Mr C Evans
Offender: Mr G Harrison (25 February 2020)
Solicitors:
Crown: Ms R McEvoy (NSW DPP)
Offender: Mr C Harb (Harb Lawyers)

File Number(s): 2018/32365
Publication restriction: N/A

SENTENCE

The offender pleaded guilty on the first day that the matter was listed for trial, being 5 August 2019, to the following offence under s 52A(1)(c) of the Crimes Act 1900 (NSW):

On 19 January 2018, at Kellyville in the State of New South Wales, did drive a vehicle, namely a white Toyota Corolla, New South Wales registration BBU 86K, when it was involved in an impact causing the death of Mr…

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 R v Boctor

Details

AGLC: R v Boctor [2020] NSWDC 46
Case: [2020] NSWDC 46
Decision Date: 26 February 2020

CaseChat Overview and Summary

The case of R v Boctor was heard before the Court, where the defendant was convicted and subsequently required to attend court and Community Corrections as directed. The defendant was also required to comply with all reasonable directions from Community Corrections. The court directed a Home Detention Assessment Report be obtained and indicated its intention for the defendant's sentence. The defendant was to serve a term of imprisonment of one year and ten months by way of an Intensive Corrections Order, with conditions of home detention, excluding work hours. Additionally, the defendant was to perform 250 hours of community service work. The court further indicated its intention for the defendant to be disqualified from holding a New South Wales Driver’s License and from operating a motor vehicle on the roads of New South Wales for a period of four years. The matter was returned before the court for a sentence hearing on a specified date.

The court considered the legal issues presented in the case, including the applicability of the relevant statute and the appropriate sentence for the offence committed. The court examined whether the defendant's momentary inattention was a factor in the offence. The court also deliberated on the conditions of the sentence, including the terms of home detention and community service work, and the disqualification from holding a driver’s license and operating a motor vehicle. The court's reasoning focused on the need for the sentence to reflect the seriousness of the offence, while also considering the defendant's circumstances and the potential for rehabilitation.

The court concluded that the defendant was to be sentenced according to the outlined conditions, pending the receipt of the Home Detention Assessment Report. The court indicated its intention for the defendant to serve a term of imprisonment through an Intensive Corrections Order, with specific conditions for home detention and community service. The court also indicated its intention for the defendant to be disqualified from holding a driver’s license and from operating a motor vehicle for a period of four years. The matter was to be returned before the court for the sentence hearing on the specified date. The court's decision reflected a balanced approach, considering both the need for punishment and the potential for rehabilitation of the defendant.

Orders

Orders of the court

(1) The offender is convicted;

(2) I grant bail on the following conditions:

(a) The offender is to attend court as and when required;

(b) The offender is to attend Community Corrections, Hornsby office on 5 March 2020 or as otherwise directed by Community Corrections;

(3) I direct a Home Detention Assessment Report be obtained;

(4) I indicate that pending the further Home Detention Assessment Report being received, the intention of the Court is that the offender be sentenced to a term of imprisonment of one year and ten months to be served by way of an Intensive Corrections Order, commencing on a date when the Court has before it that report with conditions of home detention pursuant to the Crimes (Administration of Sentences) Regulation 2014, Regulation 189, save that such detention is not to apply during the hours of his work in his tobacconist, gift shop business and that the offender is to perform 250 hours of community service work;

(5) I indicate that it is the intention of the Court that when the matter is returned following receipt of the Home Detention Assessment Report that the offender be disqualified from holding a New South Wales Driver’s License and from operating a motor vehicle on the roads of New South Wales for a period of 4 years commencing 19 January 2018 and ending 18 January 2022;

(6) I return the matter before me for sentence hearing (part heard) on 20 April 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Boctor [2020] NSWDC 46
Hearing dates:	25 and 26 February 2020
Date of orders:	26 February 2020
Decision date:	26 February 2020
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) The offender is convicted; (2) I grant bail on the following conditions: (a) The offender is to attend court as and when required; (b) The offender is to attend Community Corrections, Hornsby office on 5 March 2020 or as otherwise directed by Community Corrections; (c) The offender is to comply with all reasonable directions of Community Corrections; (3) I direct a Home Detention Assessment Report be obtained; (4) I indicate that pending the further Home Detention Assessment Report being received, the intention of the Court is that the offender be sentenced to a term of imprisonment of one year and ten months to be served by way of an Intensive Corrections Order, commencing on a date when the Court has before it that report with conditions of home detention pursuant to the Crimes (Administration of Sentences) Regulation 2014, Regulation 189, save that such detention is not to apply during the hours of his work in his tobacconist, gift shop business and that the offender is to perform 250 hours of community service work; (5) I indicate that it is the intention of the Court that when the matter is returned following receipt of the Home Detention Assessment Report that the offender be disqualified from holding a New South Wales Driver’s License and from operating a motor vehicle on the roads of New South Wales for a period of 4 years commencing 19 January 2018 and ending 18 January 2022; (6) I return the matter before me for sentence hearing (part heard) on 20 April 2020.
Catchwords:	CRIME: sentence – s 52A(1)(c) – whether momentary inattention
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1919 (NSW) Crimes (Administration of Sentences) Regulation 2014 (NSW)
Cases Cited:	R v Whyte [2002] 55 NSWLR 252; NSWCCA 343 Simmons v R [2020] NSWCCA 16 R v Jurisic [1998] 45 NSWLR 209; NSWSC 423 R v Thomson and Houlton [2000] 49 NSWLR 383; NSWCCA 309 R v Shashati [2018] NSWCCA 167 R v Pisciuneri [2007] NSWCCA 265 R v Pullen [2018] NSWCCA 264 R v Fangaloka [2019] NSWCCA 173
Category:	Sentence
Parties:	Regina (Crown) Edmond Boctor (Offender)
Representation:	Counsel: Crown: Mr C Evans Offender: Mr G Harrison (25 February 2020) Solicitors: Crown: Ms R McEvoy (NSW DPP) Offender: Mr C Harb (Harb Lawyers)
File Number(s):	2018/32365
Publication restriction:	N/A