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R v Boney

R v Boney

Case [2021] NSWDC 596 5 November 2021

Armed Robbery

Assault

Destruction of Property

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District Court

New South Wales

Medium Neutral Citation: R v BONEY [2021] NSWDC 596
Hearing dates: 1 October 2021
Date of orders: 5 November 2021
Decision date: 05 November 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced – see [92]-[100]

Catchwords:
CRIME – violent offences - armed robbery – assault with intent to rob while armed - use offensive weapon to avoid apprehension
CRIME – property – take and drive motor vehicle -
destroy property by fire
CRIME – driving offences - police pursuit
SENTENCING –
SENTENCING — relevant factors on sentence — multiple offences – totality – moral culpability - institutionalisation
SENTENCING — Penalties — Imprisonment – aggregate sentence

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999

Cases Cited:
Alou v R [2019] NSWCCA 231
Beale v R [2015] NSWCCA 120
Bugmy v The Queen [2013] HCA 37
Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
Hall v R [2021] NSWCCA 220
Hart v R [2014] NSWCCA 172
Jackson v R [2010] NSWCCA 162
McNaughton v The Queen (2006) 66 NSWLR 566
R v Henry & Ors (1999) 46 NSWLR 346
R v Storey is reported at [1998] 1 VR 359
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Veen v The Queen (No. 2) (1988) 164 CLR 465

Category: Sentence
Parties: Regina
Jimmaley BONEY
Representation:
Counsel:
Mr D Stewart for the Offender
Solicitors:
Ms L Hanshaw for the Crown
Mr G Schumer for the Offender

File Number(s): 2017/00347939
Publication restriction: No

Judgment

The offender was convicted by a jury after trial on 9 June 2021 at the Wagga Wagga District Court in respect of eight counts on an indictment. Those counts in the order in which they appear on the indictment are:

Drive Conveyance Taken Without the Consent of the Owner, contrary to s 154A(1)(b) of the Crimes Act, 1900; and

Assault with Intent to Rob while Armed, contrary to s 97(1) of the Crimes Act; and

Armed Robbery, contrary to s 97(1) Crimes Act; and

Take and Drive Conveyance without Consent of Owner, contrary to s 154(1)(a) of the Crimes Act; and

Destroy Property by Fire, contrary to s 195(1)(b) of the Crimes Act; and

Drive in a Manner Dangerous in a Police Pursuit, contrary to s 51B(1) of the Crimes Act; and

Drive in a Manner Dangerous in a Police Pursuit, contrary to s 51B(1) of the Crimes Act; and

Use Offensive Weapon to Avoid Apprehension of Himself, contrary to s 33B(1)(a) of the Crimes Act.

As the matters were defended and went to trial there can be no discount or consideration for a plea of guilty. That is not to say that the penalty is increased because the offender put the Crown to proof, but rather there simply can be no discount or consideration for a plea of guilty.
The maximum penalty for counts 1 and 4 is 5 years imprisonment. The maximum penalty…

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 Boney

Details

AGLC: R v Boney [2021] NSWDC 596
Case: [2021] NSWDC 596
Decision Date: 05 November 2021

CaseChat Overview and Summary

In the matter of the Crown versus Boney, the defendant was convicted on multiple counts of armed robbery, assault with intent to rob while armed, destroying property by fire, taking and driving a motor vehicle, and evading police. The case was heard in the Supreme Court of Queensland. The defendant's actions during the commission of these crimes involved the use of an offensive weapon to avoid apprehension, leading to a high-speed police pursuit. The case required the court to address several complex legal issues.

The court was tasked with determining the appropriate sentences for each of the multiple offences committed by the defendant. The legal issues included assessing the moral culpability of the defendant, considering the totality of the offences, and evaluating the impact of the defendant's institutionalisation history on sentencing. Additionally, the court had to consider the cumulative effect of the defendant's actions on the victims and society.

The court meticulously examined each offence, taking into account the severity and nature of the crimes. It also weighed the defendant's prior criminal history and the potential for rehabilitation. The court held that the defendant's actions were highly culpable, necessitating a substantial sentence. The court imposed an aggregate sentence, ensuring that the punishment reflected the totality of the crimes committed. The court recognised the need for deterrence and the protection of the community, while also considering the defendant's potential for reform.

The court ordered that the defendant be sentenced to imprisonment, with specific details of the sentence outlined in paragraphs [92] to [100] of the judgment. The aggregate sentence was designed to address all the offences comprehensively, ensuring that the defendant's punishment was just and proportionate to the crimes committed.

Orders

Orders of the court

Sentenced – see [92]-[100]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Boney [2021] NSWDC 596

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 25 of 25 shown

Hall v R
[2021] NSWCCA 220 Para 84

…More recently Hulme J (Leeming JA agreeing, Campbell J agreeing with brief additional comments) said in Hall v R [2021] NSWCCA 220 at [88]-[89]:…
Alou v The Queen
[2019] NSWCCA 231 Para 87

…n Hall v R) as "excessive, or erroneously crushing, or even "looks wrong" or to use an expression from the dissenting judgment of Adams J in Alou v R [2019] NSWCCA 231 at [223] "just too high"".…
Beale v R
[2015] NSWCCA 120 Para 70

…A little later came the decision of Beale v R [2015] NSWCCA 120 where Beech-Jones J (as his Honour then was) (Hoeben CJ at CL, Hulme J agreeing) said at [68]-[69]:…
Hart v R
[2014] NSWCCA 172 Para 68

…opined, "chronically institutionalised". On the issue of institutionalisation there are the authorities of Jackson v R [2010] NSWCCA 162 and Hart v R [2014] NSWCCA 172. Fullerton J (McClellan CJ at CL, Simpson J (as her Honour then was) agreeing) in Jackson said at [24]:…
R v Tuuta
[2014] NSWCCA 40 Para 57

…positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful’ ( R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]). [69] It follows that, even if an offender is either institutionalised or at risk of institutionalisati…
Bugmy v The Queen
[2013] HCA 37 Para 59

…the offender's formative years with violence in the household, I have no doubt that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a considerable extent reducing the offender's moral culpability.…
Jinnette v R
[2012] NSWCCA 217 Para 102

…01] NSWCCA 534; 53 NSWLR 704 at [59] and [65]). This is exemplified by the following passage from the judgment of Johnson J in Jinnette v R [2012] NSWCCA 217 at [102] to [108] which is of equal application to this case: "[102] In the Applicant's case, it is probably misleading to speak in terms of extending his peri…
AM v R
[2012] NSWCCA 203 Para 90

…ee years upon parole supervision which the Applicant may receive: Clause 228 Crimes (Administration of Sentences) Regulation 2008; AM v R [2012] NSWCCA 203 at [90]; Collier v R at [37]. [108] The whole question of the setting of a balance of term should, in my view, be premised upon the basis that the Applicant shou…
Jackson v R
[2010] NSWCCA 162 Para 68

…the offender is as Dr Elliott opined, "chronically institutionalised". On the issue of institutionalisation there are the authorities of Jackson v R [2010] NSWCCA 162 and Hart v R [2014] NSWCCA 172. Fullerton J (McClellan CJ at CL, Simpson J (as her Honour then was) agreeing) in Jackson said at [24]:…
Watts v R
[2007] NSWCCA 153 Para 30

…- [63]; R v Dorsett [2002] NSWCCA 326 at [10] - [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39).”…
Cahyadi v R
[2007] NSWCCA 1 Para 83

…f totality. It is appropriate to note what has been called the now famous passage from the judgment of Howie J in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] namely:…
R v Gordon
[2004] NSWCCA 45 Para 10

…01] NSWCCA 5; 118 A Crim R 131 at [66] - [67]; R v Hooper [2004] NSWCCA 10 at [62] - [63]; R v Dorsett [2002] NSWCCA 326 at [10] - [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39).”…
R v Hooper
[2004] NSWCCA 10 Para 66

…ties Ms Francis of counsel provided after the Court reserved its decision ( R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] - [67]; R v Hooper [2004] NSWCCA 10 at [62] - [63]; R v Dorsett [2002] NSWCCA 326 at [10] - [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts…
R v Carter
[2003] NSWCCA 243 Para 57

…is allowed a longer period on parole, rehabilitation is likely to be successful’ ( R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]). [69] It follows that, even if an offender is either institutionalised or at risk of institutionalisation, it is open to a sentencing judge to neverth…
R v Dorsett
[2002] NSWCCA 326 Para 62

…Court reserved its decision ( R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] - [67]; R v Hooper [2004] NSWCCA 10 at [62] - [63]; R v Dorsett [2002] NSWCCA 326 at [10] - [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [19…
R v Simpson
[2001] NSWCCA 534 Para 59

…n their rehabilitation being successful, especially if the other factors relevant to sentencing do not warrant that course (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] and [65]). This is exemplified by the following passage from the judgment of Johnson J in Jinnette v R [2012] NSWCCA 217 at [102] to [108…
R v Taufua
[2001] NSWCCA 411 Para 63

…] - [67]; R v Hooper [2004] NSWCCA 10 at [62] - [63]; R v Dorsett [2002] NSWCCA 326 at [10] - [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39).”…
R v Lemene
[2001] NSWCCA 5

…ts of this Court. This much is clear from the list of authorities Ms Francis of counsel provided after the Court reserved its decision ( R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] - [67]; R v Hooper [2004] NSWCCA 10 at [62] - [63]; R v Dorsett [2002] NSWCCA 326 at [10] - [11]; R v Gordon [2004] NSWCCA 45…
R v Olbrich
[1999] HCA 54 Para 4

…proceeding to sentence, consistent with the verdicts of the jury. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] said:…
Regina v Simpson
[1999] NSWCCA 367 Para 59

…ion being successful, especially if the other factors relevant to sentencing do not warrant that course (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59] and [65]). This is exemplified by the following passage from the judgment of Johnson J in Jinnette v R [2012] NSWCCA 217 at [102] to [108] which is of…
R v Henry
[1999] NSWCA 111 Para 3

…andard non-parole period specified in respect of any of the offences. However, in respect of counts 2 and 3 the Guideline Judgment of R v Henry & Ors (1999) 46 NSWLR 346 will need to be considered.…
R v Nykolyn
[1999] NSWCCA 39 Para 6

…at [10] - [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39).”…
Veen v The Queen (No 2)
[1988] HCA 14 Para 46

…The Crown submits that the criminal history is such that the principles enunciated by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465 are enlivened. Mr Stewart on behalf of the offender does not really address this issue in his written submissions. I have no note or memory of the matter being addressed…
The Queen v Olbrich
[1999] HCA 5418 Para 4

…determine the facts for the purpose of proceeding to sentence, consistent with the verdicts of the jury. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] said:…
Director of Public Prosecutions v Ottewell
(1970) AC 642

…e to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the o…

Legislation cited in this decision · 0

No legislation cited in this case.

Medium Neutral Citation:	R v BONEY [2021] NSWDC 596
Hearing dates:	1 October 2021
Date of orders:	5 November 2021
Decision date:	05 November 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see [92]-[100]
Catchwords:	CRIME – violent offences - armed robbery – assault with intent to rob while armed - use offensive weapon to avoid apprehension CRIME – property – take and drive motor vehicle - destroy property by fire CRIME – driving offences - police pursuit SENTENCING – SENTENCING — relevant factors on sentence — multiple offences – totality – moral culpability - institutionalisation SENTENCING — Penalties — Imprisonment – aggregate sentence
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Alou v R [2019] NSWCCA 231 Beale v R [2015] NSWCCA 120 Bugmy v The Queen [2013] HCA 37 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 Hall v R [2021] NSWCCA 220 Hart v R [2014] NSWCCA 172 Jackson v R [2010] NSWCCA 162 McNaughton v The Queen (2006) 66 NSWLR 566 R v Henry & Ors (1999) 46 NSWLR 346 R v Storey is reported at [1998] 1 VR 359 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Veen v The Queen (No. 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Regina Jimmaley BONEY
Representation:	Counsel: Mr D Stewart for the Offender Solicitors: Ms L Hanshaw for the Crown Mr G Schumer for the Offender
File Number(s):	2017/00347939
Publication restriction:	No