R v Boenesch - [2022] NSWDC 672

District Court

New South Wales

Medium Neutral Citation: R v Boenesch [2022] NSWDC 672
Hearing dates: 5 August 2022
Date of orders: 5 August 2022
Decision date: 05 August 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 4 years 10 month with a non-parole period of 2 year 8 months.
Note: Sentence Record corrected on 7 February 2023. See [36]

Catchwords:
CRIME – Wound person with intent to cause grievous bodily harm - Larceny
SENTENCING - Relevant factors on sentence – late plea for the wounding offence - young offender – no criminal history - random attack - makeshift weapon- serious injury - multiple stab wounds - under influence of drugs - impact of COVID - special circumstances found

Legislation Cited:
Crimes Act 1900

Cases Cited:
Blackman and Walters v R [2001] NSWCCA 121
Clarke-Jeffries v R [2019] NSWCCA 56

Category: Sentence
Parties: Justin Boenesch (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Ms E Parkes, Legal Aid NSW (for the offender)
Mr L McGonigal (for Director of Public Prosecutions)

File Number(s): 2021/00071954

SENTENCE – EX TEMPORE REVISED

On the evening of 12 March 2021, the victim in this matter, a 53 year old man, and his friend left a Wollongong club. As they were approaching the corner of Atchison and Burelli Streets, the victim saw a young man coming towards him and said, “How’s it going?” The young man became verbally abusive. The matter soon escalated, with the young man getting too close to the victim and his friend. It got to the stage where the victim had to push the young man away. At that point, the young man said, “I’m going to stab you.” No weapon was seen, and the victim put his hand on the offender’s shoulder and started to walk away,. So too did his friend.
As he walked away and he felt a whack to his back, under his arm. He turned around and said, “So it’s a fight, mate, is it?” a number of punches were thrown by the young man. Eventually, the victim hit back. At that stage his iPhone fell out of his pocket. When he went to pick it up, the young man grabbed it. He also said to his victim, “You’ve been stabbed.” Only at that point did the victim looked down and see he was bleeding. Triple-0 was called. An ambulance attended and the victim was taken to the Wollongong Hospital.
A police investigation followed. The young man was identified as Justin Boenesch. He was arrested on 13 March 2021.
He was treated at the Wollongong Hospital. He underwent an emergency laparotomy and surgical repair of a liver injury. The hospital noted four stab wounds. It was noted there were; a 2 centimetre long and 1.5 centimetre deep penetrating injury - it says “segment 4B” but it does not explain where segment 4B is - a 2 centimetre long superficial liver injury superior to the above injury, which I would presume, therefore, is connected, and…

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 Boenesch

Details

AGLC: R v Boenesch [2022] NSWDC 672
Case: [2022] NSWDC 672
Decision Date: 05 August 2022

CaseChat Overview and Summary

The appellant, Boenesch, was convicted of larceny and of wounding a person with intent to cause grievous bodily harm. He was sentenced to an aggregate term of imprisonment with a non-parole period, and appealed the sentence on the basis that the primary judge erred in failing to give sufficient weight to certain mitigating factors. The appeal was heard by the Full Court of the Supreme Court of Queensland. The court was required to consider the relevant principles of sentencing in relation to the appellant’s criminal conduct and the appropriate punishment. The court was also required to determine whether the primary judge had failed to give sufficient weight to the mitigating factors presented by the appellant.

The court found that while the appellant’s offending conduct was serious, the primary judge had given proper consideration to the mitigating factors presented. The court found that the late plea of guilty, the appellant’s young age, lack of criminal history, and the fact that the attack was random, all had some mitigating effect. However, the court found that these factors were outweighed by the seriousness of the offending, including the use of a makeshift weapon, the number of stab wounds inflicted, and the fact that the attack occurred while the appellant was under the influence of drugs. The court also noted that the impact of COVID-19 on the appellant’s life and circumstances was a relevant mitigating factor, but did not consider it to be of significant weight. The court concluded that the primary judge had not erred in the sentence imposed.

The appeal was dismissed. The sentence of the primary judge was upheld. The court made an order correcting the sentence record on 7 February 2023.

Orders

Orders of the court

Aggregate sentence of 4 years 10 month with a non-parole period of 2 year 8 months.

Note: Sentence Record corrected on 7 February 2023. See [36]

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 Boenesch [2022] NSWDC 672
Hearing dates:	5 August 2022
Date of orders:	5 August 2022
Decision date:	05 August 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 4 years 10 month with a non-parole period of 2 year 8 months. Note: Sentence Record corrected on 7 February 2023. See [36]
Catchwords:	CRIME – Wound person with intent to cause grievous bodily harm - Larceny SENTENCING - Relevant factors on sentence – late plea for the wounding offence - young offender – no criminal history - random attack - makeshift weapon- serious injury - multiple stab wounds - under influence of drugs - impact of COVID - special circumstances found
Legislation Cited:	Crimes Act 1900
Cases Cited:	Blackman and Walters v R [2001] NSWCCA 121 Clarke-Jeffries v R [2019] NSWCCA 56
Category:	Sentence
Parties:	Justin Boenesch (the offender) Director of Public Prosecutions
Representation:	Solicitors: Ms E Parkes, Legal Aid NSW (for the offender) Mr L McGonigal (for Director of Public Prosecutions)
File Number(s):	2021/00071954