R v Boney

Case [2008] NSWCCA 313

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v BONEY [2008] NSWCCA 313

FILE NUMBER(S):
2008/0588

HEARING DATE(S):
2 June 2008

JUDGMENT DATE:
17 December 2008

PARTIES:
Regina
Douglas Charles BONEY

JUDGMENT OF:
McClellan CJ at CL Hulme J Hidden J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/31/0039

LOWER COURT JUDICIAL OFFICER:
English DCJ

COUNSEL:
Crown:  J Dwyer
Appellant:  H Dhanji

SOLICITORS:
Crown:  Solicitor for Public Prosecutions
Appellant:  Legal Aid Commission

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
(i)  Allow the Crown appeal;
(ii) Quash the sentence imposed by English DCJ on the Respondent on 23 January 2008 in respect of the offence of maliciously inflict grievous bodily harm;
(iii) In respect of that charge, sentence the Respondent to imprisonment for a non-parole period of 4 years and 6 months commencing on 23 March 2007 together with a further period of 3 years.
(iv) Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole, 23 September 2011.

JUDGMENT:

- 27 -

IN THE COURT OF
CRIMINAL APPEAL

2008/0588

McCLELLAN CJ AT CL
HULME J
HIDDEN J

Wednesday, 17 December 2008

R v Douglas Charles BONEY

Judgment

  1. McCLELLAN CJ AT CL:  I agree with Hulme J.

  2. HULME J:  On 23 January 2008 the Respondent to this Crown appeal was sentenced by English DCJ in respect of 3 charges.  They, and the sentences imposed were:-

    Detain for advantage Loretta Tighe – Imprisonment for a fixed term of 18 months commencing on 23 September 2006.

    Assault Loretta Tighe, occasioning her actual bodily harm – Imprisonment for a fixed term of 9 months commencing on 23 September 2006.

    Maliciously inflict grievous bodily harm on Geoffrey Tighe with intent to inflict grievous bodily harm – Imprisonment for 6 years, including a non-parole period of 3 years, both such periods commencing on 23 September 2006.

  3. The appeal is in respect of only the third of these matters, the Crown contending that the sentence was manifestly inadequate. Pursuant to s33 of the Crimes Act the offence carries a maximum period of imprisonment of 25 years. It is also an offence that, under s54A et seq of the Crimes (Sentencing Procedure) Act, has a standard non-parole period of 7 years.

  1. The circumstances of the offences were as follows.  On the 22 September 2006 the Respondent saw his former de facto wife Loretta Tighe, in the street in Moree, chased her, took hold of her in a bear hug and carried her away towards a house.  On the way he slapped her across the face, causing bruising and swelling to her right eye. The Respondent took Ms Tighe to his cousin’s house where she remained with him overnight.  These facts formed the basis of the charges of detain for advantage and assault occasioning actual bodily harm. 

  2. Early the following day, 23 September 2006, Geoffrey Tighe, the brother of Loretta Tighe attended, with a number of members of his family, at the premises to…

Continue reading R v Boney

Sign in free to access the full text

Details
AGLC
R v Boney [2008] NSWCCA 313
Case
[2008] NSWCCA 313
Decision Date

CaseChat Overview and Summary

The case of R v Boney was heard in the Court of Criminal Appeal of New South Wales. The respondent, Boney, had been convicted of a crime and sentenced to six years in prison with a non-parole period of three years. The Crown appealed against the sentence, arguing that it was manifestly inadequate. The Court was required to determine whether the sentence was sufficiently severe given the nature and circumstances of the crime.

The legal issues in the case centred around the adequacy of the sentence imposed by the trial judge. The Crown argued that the sentence was manifestly inadequate, pointing to the severity of the injuries caused and the potential long-term impact on the victim. The Court considered whether the sentence was within the range of appropriate punishments for the offence and whether it adequately reflected the principles of punishment, deterrence, and rehabilitation.

In reaching its decision, the Court reviewed the circumstances of the offence and the sentence imposed. The Court found that while the Crown had succeeded on several individual points, the central issue remained whether the sentence was manifestly inadequate. The Court examined previous cases involving similar offences and noted that the trial judge had considered a range of mitigating factors in sentencing. The Court concluded that the sentence was within the trial judge's discretion and dismissed the Crown's appeal.

The Court upheld the original sentence of six years with a non-parole period of three years. The Court emphasised the importance of considering the totality of the circumstances, including the offender's background, the nature of the offence, and the potential for rehabilitation. The Court found that the sentence imposed was appropriate and did not constitute a manifest inadequacy.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CLELLAN CJ (dissent)
However, it is preferable to postpone further consideration of this topic until the issue of manifest inadequacy is dealt with. In the circumstances of this case and her Honour’s remarks, I do not find evidence of double counting. Conclusion Although the Crown has succeeded on most the individual matters upon which it relies, the question still remains whether the sentence of 6 years including a non-parole period of 3 years was manifestly inadequate. In aid of the submission that it was not, Mr Dhanji, counsel for the Respondent drew to the Court’s attention a number of prior decisions of this Court involving offences under s33. In R v Jenkins [2006] NSWCCA 412 the offender had become upset by the victim laughing at the offender’s boyfriend on a dance floor. After an earlier confrontation, the offender shoulder charged the victim. After further words and while the victim was turned away the offender poured water over her and then drew her arm back and pushed a glass she was holding forward with such force that it broke in the area of the victim’s eye causing facial scarring and eye damage. After inflicting the injury the offender walked away, apparently indifferent to the injuries inflicted. The prognosis for recovery of sight in that eye was extremely poor. There was a significant chance that the victim might require removal of the eye itself and there was a possibility that the damage to that eye would pose a risk of sympathetic ophthalmia which could affect the other eye. The effect on the victim’s life was substantial, including the fact that it was unlikely that she could continue a promising and lengthy career in the Police Service. The offender was 19 at the time of the offence, had had difficulties in her upbringing and was regarded as having a strong subjective case. She had maintained employment since leaving school and at the time of sentence was in a stable relationship of 2 years duration. At the time of the offence she was suffering from bouts of “a major depressive disorder”, her depression being exacerbated by, inter alia, a large amount of alcohol she had consumed. She had no criminal record and since the offence she had abstained from alcohol, expressed remorse for her actions and been seeking counselling to manage her problems and anger. At the time of sentence, she was being treated for cervical cancer. She was regarded as unlikely to re-offend and having good prospects of rehabilitation. The trial judge concluded that the offence was “somewhat below the middle of the range of objective seriousness”. This Court concluded that that finding was open to his Honour and although his Honour had erred in his approach to the standard non-parole period and the sentence of 5 years including a non-parole period of 2½ years was lenient, it was within the trial judge’s discretion. The members of the Court said that they would have imposed heavier sentences at first instance but dismissed the Crown appeal. In R v Chisari [2006] NSWCCA 19 this Court allowed a Crown appeal in the case of an offender who had driven a vehicle at a police officer effectively obliging the officer to jump onto the bonnet of the vehicle. The offender then accelerated and the officer fell off. He suffered, inter alia, a displaced fracture of the right distal radius, a period of extreme pain, difficulty sleeping and recurring dreams of the incident.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.