R v Boney

[2021] NSWDC 596

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

1. 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:

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

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

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

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

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

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

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

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

2. 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.

3. The maximum penalty for counts 1 and 4 is 5 years imprisonment. The maximum penalty for counts 2 and 3 is 20 years imprisonment. The maximum penalty for count 5 is 10 years imprisonment. The maximum penalty for counts 6 and 7 is 3 years imprisonment. The maximum penalty for count 8 is 12 years imprisonment. There is no standard 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.

FACTS

4. As the matter was determined by a jury it is for me to 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:

“As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [[1998] 1 VR 359] - that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’"

5. Given the number of matters I will deal with an assessment of the seriousness when dealing the facts of that matter. All matters arise out of one extended episode of offending on the night of 7 November 2017 at Wagga Wagga. I am grateful to the Crown Prosecutor for her assistance in the facts in the written submissions by the Crown MFI 1 on sentence.

6. For the days leading up to 7 November 2017 the offender and Brittany McKenzie were staying with Brittany's mother and her partner Joshua Kirby at 11 Callaghan Street, Wagga Wagga. The offender was at those premises on 7 November 2017 with McKenzie, Alderton and Kirby. All were consuming methamphetamine (ice) and McKenzie and Kirby were also drinking alcohol and smoking cannabis. At that address was a white Commodore sedan that had previously been taken from the premises of the owner, Ms Judith Gray in Green Street, Lockhart.

7. At night the offender with McKenzie drove to a Caltex Service Station on the intersection of Docker and Edward Streets in Wagga Wagga. That service station is known locally as "Finco's". Edward Street is the Sturt Highway and is the major east-west thoroughfare in Wagga Wagga. Docker Street is a major north-south thoroughfare. The offender drove the white Commodore to the service station knowing that it had been taken without the permission of the owner. The vehicle was started by manipulating the ignition mechanism with a screwdriver. Those are the facts to which count 1 relates.

8. The matter is an unremarkable or typical example of the offence of Drive Vehicle Taken without Consent of the Owner.

9. The offender parked the vehicle adjacent to the front doors of the shop of the service station parking across a number of parking bays to the east of the shop. He entered the shop premises and McKenzie remained in the vehicle and hid under a blanket that was in the vehicle.

10. Ms Vanessa Angel, who was 19 years of age at the time was working alone as the console operator. Also in the shop premises was Mr Mahbubar Rahman (referred to as James at the trial) who worked for the same company but at different premises. He was delivering sandwiches for sale that had been made at the premises where he worked. In front of the counter were a number of horizontal metal cables as a safety barrier. The door to the area where the console operator worked was locked. That door was made of metal and glass, with the glass being at the top. The offender rushed into the shop area of the service station wearing a balaclava and brandishing a machete.

Counts 2 and 3

11. The written word will not describe how truly terrifying the experience must have been for Ms Angel. Exhibit "B" at the trial was the closed circuit television security footage which graphically shows the events to which count 2 relates. If this decision is ever reviewed I urge in the strongest of terms that anyone reviewing the matter view the footage contained in that exhibit.

12. Ms Angel gave evidence to the effect - and I have no difficulty accepting beyond reasonable doubt - that the offender was yelling loudly and went straight to the security door that gave access to where Ms Angel was working. As he passed a water display cabinet he used the machete to smash the contents of that cabinet over the floor. Ms Angel realised that a robbery was imminent so she locked the door. The offender followed her and was attempting to open the door while swinging the machete. The Crown Prosecutor puts and I have no difficulty accepting to the criminal standard that Ms Angel was trying to get away and was terrified.

13. Ms Angel then retreated from that front counter area into the connecting storeroom where she attempted to dial triple-0. The offender returned to the front counter area and slid between the bench and the lowest metal cable. He then pursued Ms Angel through the store room and back through the store. He was yelling, brandishing the machete and smashing the fittings in the shop. As the Crown Prosecutor submits the CCTV footage shows the offender coming "frighteningly close" to Ms Angel as she runs from behind him.

14. Eventually Ms Angel ran outside and went to Docker Lane. She could see and hear James calling for the police. She dialled triple-0. She observed the offender chase James.

15. The Guideline in Henry & Ors sets out a number of common features of offences of aggravated robbery, namely:

1. Young offender with no or little criminal history

2. Weapon like a knife, capable of killing or inflicting serious injury

3. Limited degree of planning

4. Limited, if any, actual violence but a real threat thereof

5. Victim in a vulnerable position such as a shopkeeper or taxi driver

6. Small amount taken

7. Plea of guilty, the significance of which is limited by a strong Crown case.

16. However, Spigelman CJ went on to say at [162]:

“Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.

There are two principal reasons why a sentencing range is appropriate for this offence:

(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.

(ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi).

In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term.”

17. The criminal conduct of the offender was extremely aggressive and sustained. He chased the victim, who for the purposes of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act was vulnerable for several minutes, while brandishing and swinging a very substantial weapon in the form of machete.

18. The offender was 29 years of age at the time of the offending so cannot really be classified as a young offender. Unlike the "common feature" (i) within the Guideline Judgment, the offender has a substantial record and was on parole. The weapon was substantial. There was not much planning but the offending was not entirely spontaneous. There was no actual violence inflicted on Ms Angel but the threat of very substantial was very real. No money was taken, noting that the charge is Assault with Intent to Rob While Armed.

19. Given the criminality in particular the sustained nature of the conduct, which was very aggressive, the nature of the weapon and the other circumstances to which I have referred this matter in my opinion is well above the mid-range of seriousness. Although in the paragraph immediately above I address the "common features" within the Guideline Judgment I have not taken the record or the fact of the offender being on parole in the assessment of the objective seriousness and arriving at the conclusion that the matter is well above mid-range.

20. Count 3 was committed immediately after count 2. Mr Rahman (James) was standing outside the shop of the service station attempting to contact the police. The offender ran directly at him with the machete raised. James ran away from the service station and ran west along Edward Street crossing the roadway a number of times. The victim stopped running as he was out of breath. He attempted to shield himself from the offender with a garbage bin.

21. The offender held out the machete and yelled at the victim about calling the police. The offender threatened to "chop" the victim and demanded that the victim give him everything. In fear the victim gave the offender what he had which was his iPhone, car keys and wallet. The offender ordered the victim to show his car to him and the victim complied by showing him a green Magna sedan.

22. At about this time a witness, Ms Anne Limberie who worked as a midwife at Calvary Hospital (the local private hospital in Wagga Wagga) arrived at the driveway of the service station intending to fuel her vehicle. Ms Angel got into the vehicle. The offender approached the vehicle with the machete raised, but Ms Limberie revved the engine and backed off.

23. Again, the conduct of the offender was extremely violent and sustained, noting that the offender chased the victim for some time. The same observations about the nature and use of the weapon apply to count 3 as they did to count 2. The property that was taken was limited. The victim is not a vulnerable victim for the purposes of s 21A(2)(l) of the Sentencing Act. Given these factors the matter is also well above mid-range.

Count 4

24. Ms McKenzie who was in the white Commodore gave evidence for the Crown at the trial. After robbing Mr Rahman of his property the offender went to the Commodore and directed Ms McKenzie to follow him. The offender took Mr Rahman's magna sedan and drove away from the service station. This is the conduct to which sequence 4 relates. Taken in isolation the matter is a typical example of the offence.

Count 5

25. The offender then drove to Mortimer Place near Bunnings which is to the south west of the CBD of Wagga Wagga. McKenzie followed driving the white Commodore. The offender then set the Commodore alight. It was destroyed by fire.

26. There is no evidence of the value of the vehicle.

27. The conduct in destroying the vehicle was nothing other than wanton vandalism. There is an irresistible inference that the vehicle was destroyed to eliminate any DNA or fingerprint or other physical evidence that might have been in the vehicle. The vehicle was destroyed. The matter is below mid-range but not significantly so.

Count 6 and 7

28. In car video footage of the pursuits was played at the trial. Again, I urge anyone reviewing this matter to view that footage.

29. Police arrived at the service station. Other police went to Ashmont, a suburb of Wagga Wagga and waited hoping to sight the offender.

30. Police patrolling in a fully marked sedan observed the stolen green Magna. They conducted a U-turn and commenced to follow the vehicle and attempted to catch up to it. The vehicle was travelling at speed and made a right hand turn into Connorton Avenue cutting the corner and nearly mounting the offside gutter alignment. The vehicle then accelerated east on Connorton Avenue towards Tobruk Street. The vehicle was travelling in excess of 100 km/h in a 50 km/h posted residential area.

31. The police activated the lights and siren making it clear that the vehicle was required to pull over. The vehicle travelled at no less than 80 km/h along Tobruk Street towards Fernleigh Road then turned right again at speed swerving onto Fernleigh Road. The vehicle turned into Jenkins Street again travelling no less than 100 km/h before again travelling onto Tobruk Street.

32. Police lost sight of the vehicle for some time but it was again sighted travelling west on Connorton Avenue towards Marshall Street, Ashmont. The vehicle was being driven at speed and manner that was dangerous to persons on or about the roadway. Police terminated the pursuit for safety reasons. It is that pursuit to which count 6 relates.

33. The driving occurred mostly in suburban streets of residential areas of Wagga Wagga. The speeds at which the vehicle was driven were considerable and extremely dangerous. The pursuit lasted for some time. The matter is in the upper end of the mid-range of seriousness.

34. Police continued to patrol looking for the vehicle. They observed the vehicle travelling slowly and conducted a u-turn and attempted to pull over the vehicle. The lights and sirens were activated. The green Magna sedan did not stop but turned left onto Mumford Street crossing on to the incorrect side of the roadway and accelerating harshly. The offender then cut a corner onto Marshall Street and drove on Marshall Street at a speed no less than 100 km/h in a 50 km/h area. The area is again a residential area.

35. The vehicle turned onto Ashmont Avenue where it travelled at a speed estimated to be no less than 150 km/h. The vehicle overtook another vehicle then continued along the incorrect side of the roadway towards a blind crest. Police terminated the pursuit for safety reasons. The vehicle was last seen driving at an extremely dangerous speed east on Ashmont Avenue towards Dobney Avenue.

36. Essentially the same observations can be made in respect of the conduct to which count 7 relates that were made in relation to count 6. However, the speed was greater. Given the speeds and manner of driving the matter is in the very upper end of the mid-range.

37. The offender then drove the Magna to 11 Callaghan Street where he parked the vehicle in the rear yard. Police meanwhile had activated the "find my iPhone" application (app) on Mr Rahman's phone and were able to track it to that address. Police went to the address and observed the green Magna in the yard behind a closed set of colour bond gates. A number of police attended the address.

Count 8

38. Constables Bagley and Bourke were two of the officers that attended 11 Callaghan Street. They parked in the street some little distance from that address and began to walk to that address. Other police had been placed in positions around the location in an attempt to prevent "the person of interest" escaping.

39. When all police officers were in their appointed positions Constables Bagley and Bourke took up position at the front of the location. Moments later the offender revved the engine of the stolen Magna and drove the vehicle right through the closed gates and onto the roadway narrowly missing a number of police as he drove straight at police making good his escape.

40. Police were able to take evasive action. The use of the vehicle as a weapon enabled the offender to escape, although that is the gravamen of the offending. A number of officers were at risk. The matter is within the mid-range.

Criminal History

41. The offender has a substantial record as a juvenile including for a number of robbery offences. He was sentenced to custody on a number of occasions in the Children's Court. The record is silent as to whether convictions were recorded so essentially I will put the Children's Court record to one side.

42. However, the offender's adult record commences in 2008. He was sentenced to a short fixed term for Possess Implements to Enter/Drive a Conveyance. The following year (2009) he was sentenced to a short fixed term for Larceny. A little later in 2009 he was sentenced to short fixed terms for Assault Police and Offensive Conduct. In 2010 he received suspended sentences for Take and Drive Conveyance and Drive While Disqualified. Those bonds were called up. It seems they were breached by the commission of an offence of Goods in Custody.

43. In 2011 the offender was sentenced in the District Court to a term of 5 years 6 months with a non-parole period of 2 years 6 months for an Aggravated Robbery with a charge of Damage Property by Fire on a Form 1.

44. In 2015 at the Parramatta District Court to a sentence of 4 years 10 months for an Aggravated Break and Enter & Commit Serious Indictable Offence. An appeal to the Court of Criminal Appeal was dismissed.

45. On 7 August 2020 the offender was sentenced to an aggregate sentence of 10 years with a non-parole period of 6 years for charges of Robbery While Armed with a Dangerous Weapon, Be Carried in Conveyance Taken Without the Consent of the Owner, Drive Conveyance Taken Without the Consent of the Owner, Aggravated Assault with Intent to Take and Drive a Motor Vehicle in Company, Destroy Property by Fire and Dishonestly Obtain Property by Deception. The offences were committed on 13 December 2017, i.e. within a few weeks of the offending in the matters presently under consideration.

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 in oral submissions. I proceed on the basis that the submission by the Crown would be opposed by counsel for the offender.

41. Mason CJ, Brennan J (as his Honour then was), Dawson & Toohey JJ said at pp 477-8:

“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate 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 offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”

48. Veen v The Queen (No 2) was decided well before the insertion of s 21A(2) into the Crimes (Sentencing Procedure) Act. Relevantly, s 21A(2)(d) of that Act provides that an aggravating factor to be taken into account in determining the appropriate sentence is:

..the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)

49. However, as I understand the state of the law on the issue before s 21A(2)(d) of the Crimes (Sentencing Procedure) Act is applied contrary to the interests of an offender the criminal history must be one that would enliven the principles in Veen v The Queen (No 2) and McNaughton v The Queen (2006) 66 NSWLR 566.

50. It is not just the number of entries on the record that is of concern but the serious nature of the offending. After giving the matter much consideration I am of the opinion that the Crown's submission as to use the court should make of the criminal history is made good and the principles enunciated by the High Court in Veen v The Queen (No. 2) are enlivened.

51. I have already indicated that the offender was on parole at the time of this offending. The factor of statutory aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act is therefore enlivened.

Subjective matters

52. No oral evidence was led from or on behalf of the offender. However, two reports that had been used in earlier matters were tendered. One is a Psychiatric Report from Justice Health dated 24 October 2014 and the other is a report from John Machlin, clinical Psychologist dated 29 May 2020. The Justice Health Report was completed at the request of his Honour Judge Sides QC at the Parramatta District Court. The author is Dr Gordon Elliott, Consultant Psychiatrist.

53. Dr Elliott's report draws heavily on earlier reports completed in respect of the offender. In 2005 the offender was diagnosed with an adjustment disorder with depressed mood. The then treating doctor opined that the diagnosis overall was unclear.

54. Later in 2005 the offender was reviewed as he was experiencing auditory hallucinations. He gave an extensive history of substance use disorders. The report notes (page 3) that the offender described an aversive childhood and that he had been a ward of the state. The offender was prescribed anti-psychotic treatment, which was apparently effective. The illness remained in remission until 2007 when the offender was feeling more paranoid and angry on a regular basis. The diagnosis was schizophrenia.

55. Under the heading "identifying Information" Dr Elliott notes that the offender expressed his fatigue with prison and said that he has spent a total of only 20 months at large in the last 16 years. The offender recounted that he almost immediately on his previous release from custody relapsed into methamphetamine and benzodiazepine abuse. The offender admitted that he was institutionalised.

56. The offender gave Dr Elliott a history of commencing to use alcohol at the age of 13 with his use escalating, drinking as much as he could procure. He ceased drinking alcohol after a severe motor vehicle accident at 18 years of age. He also gave a history of long term cannabis use commencing when he was younger than 10 while truanting school. He used cannabis daily in his teenage years. He tried heroin when he was 12 or 13 years of age. He commenced using methamphetamine from the age of 18 or 19 and he told Dr Elliott that it was a "serious problem". He had completed a number of courses while in custody.

57. Dr Elliott's report (p 6) sets out that the offender was born in Goondiwindi. This was clarified at the sentence hearing to that he grew up at the Toomelah mission near Boggabilla. His father was a boxer who occasionally worked with the Land Council. He was witness to frequent and intense violence between his parents. He began running away from home and would deliberately get locked up as Juvenile Detention Centres were safer than being at home.

58. The offender had little schooling and never attended secondary school. He told Dr Elliott that he is illiterate.

59. Given the issues of alcohol and substance abuse, the early age at which that abuse commenced and the issues in 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.

60. Dr Elliott found no evidence of formal thought disorder or psychotic symptoms. The doctor opined that it was possible that the offender's use of substances tends to exacerbate underlying maladaptive personality traits, including a malign attributional bias, or a learnt sense that he can expect the worst from others.

61. The doctor opines that the offender clearly has established and severe substance use disorders. He also opined that the offender is chronically institutionalised.

62. In answer to a specific question Dr Elliott said that the offender did not have a mental illness but may have a mild developmental delay but it was more plausible to consider his intellectual functioning is in the low or borderline normal range. The prognosis was guarded. The doctor recommended that "at the very minimum (the offender) undertake a long term residential drug rehabilitation programme.

63. Clearly enough Mr Machlin's report was prepared in respect of the matters for which the offender was sentenced in 2020. A history similar to that which was given to Dr Elliott was given to Mr Machlin. Likewise a similar history of alcohol and drug abuse was also given. The offender has two daughters who were at the date of the report aged 12 and 7 and both lived with their mother in Nowra.

64. At page 3 of the report Mr Machlin records that the offender gave a history of childhood sexual abuse that caused him to feel unsafe and that he was also sexually abused in a juvenile justice facility. When asked how the abuse affected him he said, "The way I am today".

65. Mr Machlin says at p 4 of the report that the offender had a longstanding poly drug abuse problem to the severe detriment of his lifestyle and consistent with a Substance Use Disorder. The history given by the offender also suggested to Mr Machlin a combination of personality problems, post-traumatic stress and proneness to depression.

66. The history of severe disadvantage is again noted. The history of sexual abuse as a child fortifies me in the findings already made so far as the "Bugmy" principles are concerned and add to the effect of the application of those principles in this matter.

67. Mr Machlin also recommended that the offender engage in a range of therapeutic programmes, including while he was in custody.

Institutionalisation

68. Clearly enough 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]:

“Authority for the proposition that a risk of institutionalisation is a basis for a finding of special circumstances emerges from a number of judgments 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 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).”

69. Bellew J (Gleeson JA & Adamson J agreeing) in Hart dealt with the issue of that offender's institutionalisation especially at [26]-[31]. Clearly enough the court was of the opinion in that matter that institutionalisation is a factor that can justify a finding of special circumstances.

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]:

“There is no doubt that the risk of an offender becoming ‘institutionalised’, that is becoming so conditioned to an institutional environment that their release into society leads to a heightened risk of their reoffending, is a matter that is capable of warranting a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Act (see Jackson v R [2010] NSWCCA 162 at [24]). If such a finding is made then it can justify a reduction in the non-parole period and an increase in the additional term to facilitate the offender's supervision on parole. However the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing Court to find special circumstances and reduce the non-parole period. The overall purpose of the exercise is to facilitate the offender's rehabilitation. To that end ‘there must exist significant 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 institutionalisation, it is open to a sentencing judge to nevertheless decline to make a finding of special circumstances and vary the minimum ratio if they are not sufficiently satisfied that a longer period of parole is likely to result in 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] 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 period of potential conditional liberty on parole to reduce the risk of institutionalisation. If he is not institutionalised already, it is the regrettable but almost inevitable fact that he will be institutionalised by the time he comes to be considered for release on parole, whenever that may be.

[103] The more accurate way of characterising the Applicant's position with respect to institutionalisation and 'special circumstances' is to take into account the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend. This approach does not involve a somewhat unrealistic suggestion that institutionalisation can be avoided. Rather, it acknowledges the fact of institutionalisation, and seeks to reduce the adverse consequences of that state of affairs. In my view, this better reflects the practical reality of the Applicant and his case.

…

[106] The protection of the community remains a most important consideration in a case such as this, involving incapacitation through incarceration of the Applicant, and also the protection of the community in taking reasonable steps to provide an opportunity for intensive supervision when the Applicant comes to be considered for release on parole.

[107] In this respect, it is important to observe that there will be a practical limit of three 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 should be subject to supervision, with associated counselling and treatment, for the entirety of the period upon which he is to be on parole. As this period is confined by an upper limit of three years, then that is an important factor which indicates that no longer period ought be set. The prospect of the Applicant being at liberty on parole without supervision does not, to my mind, meet the interests of the community in the circumstances of this case."’”

71. Before reaching a conclusion and decision on the issue of institutionalisation it is instructive to go to the Sentence Assessment Report (SAR), dated 17 August 2021. The author notes (p 1) that the offender has spent a significant portion of his adult life in custody and when discussing the short periods of time in the community the offender expressed difficulty in adapting to community life.

72. The offender's lack of formal education is mentioned on page 2 of the report. He has however participated in a Core Skills Assessment in 2019 that indicated an increase in ability in numeracy and reading since the previous assessment. He has completed a food safety course and has expressed an interest in obtaining a forklift licence.

73. However the report then notes, "When Mr Boney has been offered an opportunity to participate in education, training or programs in custody he has typically refused to participate."

74. The author of the report goes on to observe, Mr Boney's extensive criminal history demonstrates an entrenched pattern of anti-social behaviour. He has been convicted of a variety of offences including driving, break and enter, stealing, deception and assaults.

75. The offender continues to deny any involvement in the offending in the matter presently under consideration. I note that at trial the offender relied on an alibi. Given the strength (or more correctly the lack thereof) of that evidence it was not surprising in my view that the jury rejected that evidence. Given the offender continues to refuse to acknowledge his guilt I am simply unable to find on balance that he is remorseful. There is no other evidence before me on which I could make such a finding. I also note that a little later (p 3) the author notes that the offender lacked insight into any impact of his offending other than on himself.

76. Under the heading "violence and aggression" on page 3 of the SAR the author notes that despite his criminal history suggesting there has been an issue with violence and aggression the offender refused to acknowledge or discuss this. The author goes on to note that the offender has not completed any programs or interventions to address that issue. A little later the author observes that the offender has not engaged in any psychological treatment or interventions since being in custody.

77. The offender's parole was revoked in 2017 for failing to adapt to normal lawful life, failing to report as directed and failing to live at an approved address.

78. Further, the report notes that the offender's behaviour in custody is described as "oppositional and belligerent" and that he is aggressive to staff. He is assessed as being a medium to high risk of re-offending.

79. Given the material before me, the breaches of parole and re-offending on parole and the contents of the SAR I simply am unable to find on balance that the offender is unlikely to re-offend or that he has good prospects of rehabilitation. On that issue the prospects of rehabilitation in my view on the material available are guarded in the extreme.

80. However the court has been provided with a number of Certificates marked exhibit 3 indicating that the offender while in custody has completed a number of courses including in numeracy and vocational skills. This provides some slight glimmer of hope on the horizon.

81. There is a significant issue of totality to be considered in this matter noting that the offender is serving a total sentence of 10 years imprisonment with a non-parole period of 6 years that expires on 31 March 2024. It is the issue of totality taken with the issue of partial accumulation of sentences that dictates that there must be a finding of special circumstances.

82. There can be little doubt that the offender is in fact institutionalised. That being so, noting the authorities on the issue of institutionalisation to which I have referred and from which I have extracted I am prepared to make some very slight allowance in a finding of special circumstances on that issue. However, as I have already indicated it is the issue of totality that determines there must be such a finding. Clearly there will need to be some period where the offender can be supervised in the community after his eventual release to ensure that he obtains intensive supervision in an effort to ensure that he does not continue to re-offend. The offender must be given some hope of eventual release to avoid the sentence having a crushing effect.

Totality

83. I have referred to the issue of 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:

"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

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]:

“The critical feature of the principle of totality is that which consistently appears in all of the authoritative discussions of it: the need for the overall sentence to reflect the totality of criminality. This Court in R v MAK; R v MSK (in the emphasised sentence in the passage extracted above (at [62])) described the first and third of the matters the sentencing judge in the present case supposedly erred by not mentioning as being "at least two reasons" for there being a "need to maintain an appropriate relationship between the totality of the criminality involved … and the totality of the sentences to be imposed".

If a judge is mindful of that critical feature when applying the principle of totality, he or she will be engaging in an exercise that avoids the imposition of a sentence that is excessive, or erroneously crushing, or even "looks wrong". Whether the judge is successful in that respect is a matter for appellate review. Avoidance of error is not assured simply because a judge has expressly stated that he or she is aware of the need to avoid error that may be characterised in a certain way.”

85. In the matter presently under consideration there are two substantially and important aspects of totality to consider. First is the issue of totality so far as the sentence for the eight counts on the indictment is concerned and secondly the issue of totality so far as the aggregate sentence for the present matters when partially accumulated on the sentence that is already being served.

86. In respect of the present matters there will need to be some partial accumulation in respect of the eight offences. The extent of that accumulation is slight in respect of the counts 1 and 4, i.e. the two charges contrary to s 154A of the Crimes Act. Further, the car keys to the vehicle to which count 4 relates were part of the property taken in the robbery. The extent of the accumulation would be slight in respect of counts 6 and 7, i.e. the charges of driving in a manner dangerous in a police pursuit. Although both pursuits are serious examples of that offence they were close together and almost the one ongoing episode of dangerous driving in a police pursuit. The level of accumulation in respect of counts 2, 3, 5 and 8 will need to be meaningful. The level of partial accumulation in respect of counts 2, 3, 5 and 8 will need to be meaningful to take account of the different offending and in respect of counts 2 and 3 the different victims even though count 3 was committed immediately after count 2.

87. There will also need to be some meaningful partial accumulation of the sentence imposed in respect of the present offending to the sentence that is already being served. However, care will need to be taken to ensure that the total effective sentence for all matters is not (to use the words of Hulme J in 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"".

General Remarks

88. In passing sentence I will need to pay proper regard and give effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

89. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided for, the Guideline Judgment of R v Henry & Ors and the serious offending I am firmly of the opinion than no other sentence other than a sentence of imprisonment is appropriate. No contrary submission was advanced on behalf of the offender.

90. Although neither party referred to or handed up the statistics kept by the Judicial Commission I have had reference to them. I accept that the sentences indicated in respect of counts 2 and 3 are towards the upper end of the range of sentences that have been imposed in respect of those types of matters. The Assault with Intent to Rob was a particularly serious example of that offence noting in particular the sustained conduct of the accused in chasing the victim around the premises for several minutes. Further, all matters were defended meaning that there is no discount or consideration for a plea of guilty. Again I note (but I have not double counted) that the offender was on parole at the time of the offending.

91. Clearly this is an appropriate matter for an aggregate sentence to be imposed. I have already addressed the issue of partial accumulation and totality. The sentences that would have been imposed had separate sentences been imposed are as follows:

Count 1	Drive Vehicle Taken Without Consent of Owner	12 months
Count 2	Assault With Intent to Rob	7 years 6 months
Count 3	Armed Robbery	6 years 6 months
Count 4	Take & Drive Vehicle Taken without consent	18 months
Count 5	Destroy Property by Fire	2 years 6 months
Count 6	Police Pursuit	1 year 9 months
Count 7	Police Pursuit	2 years
Count 8	Use Offensive Weapon to Avoid Apprehension	3 years 6 months

Orders

92. In respect of the eight counts in respect of which the jury returned verdicts of guilty the offender is convicted.

93. The offender is sentenced to an aggregate sentence of 11 years with a non-parole period of 7 years.

94. The non-parole period will commence on 1 June 2021 and will expire on 31 May 2028.

95. The balance of term of 4 years will commence on 1 June 2028 and will expire on 31 May 2032.

96. The jury returned the verdicts of guilty on 9 June 2021. I backdated the sentence to commence on 1 June 2021 for essentially pragmatic reasons so that the total effective sentence would not be measured in years months and days. I have allowed some backdating, but I note that the non-parole period for the sentence imposed on 7 August 2020 does not expire until 31 March 2024.

97. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

98. The non-parole period is approximately 64% of the total sentence.

99. The total effective sentence that the offender is serving commenced on 1 April 2018 (for the sentence imposed on 7 August 2020) and will expire on 31 May 2032 (for the sentence imposed by me today) which is a total of 14 years and 2 months.

100. The total period in actual custody for all sentences, presuming that the offender is released at the expiration of the non-parole period I have imposed runs from 1 April 2018 to 31 May 2028 which is a total of 10 years and 2 months. The total actual time in custody is approximately 72% of the total effective sentence.  

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Decision last updated: 05 November 2021