CATCHWORDS: CRIMINAL LAW - appeals - appeal against sentence - whether sentence manifestly excessive - parity - whether justifiable sense of grievance - where co-offender sentenced in Children's Court to 100 hours community service after four months detention pending sentence - applicant had long criminal history while co-offender also had blemished record - offence committed while applicant on parole and co-offender subject to conditional liberty - applicant had long history of substance abuse while co-offender had minor record of recreational use - 18 months difference in age - would have been appropriate for sentencing Judge to pay some regard to co-offender's sentence - appropriate to intervene to limited extent.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL
60011/00
WOOD CJ AT CL GROVE J
FRIDAY 19TH OCTOBER 2001
REGINA V TREVOR BONEY
Judgment
WOOD CJ AT CL: The applicant seeks leave to appeal from the sentence imposed upon him by his Honour Judge Black QC in the District Court at Bourke on 1 November 2000, following his plea of guilty to an offence of armed robbery (s 97(2) Crimes Act 1900 - maximum penalty imprisonment for twenty years). When sentencing the applicant his Honour took into account, on a form 1, a further offence of take and drive a conveyance, an offence for which the maximum penalty under s 154A of the Crimes Act is imprisonment for five years. The sentence imposed was one of imprisonment for three years with a non-parole period of eighteen months. Each was back dated to 12 August 2000 to take into account the time spent in custody.
Facts:
On the evening of 7 February 2000 the victim, Tim Spora, was at his place of work with a woolbroking company in Bathurst Street, Brewarrina. At about 8.45 p.m. the applicant's younger brother, Paul Boney, entered these premises. He was carrying a screwdriver behind his back and he asked the victim whether he had $2. Mr Spora replied in the negative. The applicant, who had followed Paul Boney into the premises, took the screwdriver from him, and threatened to stab Mr Spora. The latter opened his wallet, took out $35 and handed it over. Paul Boney thereafter took the wallet and searched it for further money. While that was happening the applicant asked the victim several times where the safe and money bag were. When informed that there was no safe and that he did not know if there was a money bag, the applicant required Mr Spora to…
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.
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Details
AGLC
R v Boney [2001] NSWCCA 432
Case
[2001] NSWCCA 432
Decision Date
CaseChat Overview and Summary
In the case of R v Boney, the applicant sought leave to appeal against the sentence imposed by his Honour Judge Black QC in the District Court at Bourke. The applicant was found guilty of armed robbery and taking and driving a conveyance. The District Court sentenced the applicant to imprisonment for three years with a non-parole period of eighteen months. The applicant's co-offender, who was younger and had a less extensive criminal history, was sentenced in the Children's Court to 100 hours of community service. The applicant argued that the sentence was manifestly excessive and that it did not adequately take into account the sentence of the co-offender and other relevant circumstances. The central legal issues before the court were whether the sentence imposed was manifestly excessive and whether it was appropriate to take into account the sentence of the co-offender.
The court considered the principle of parity in sentencing, noting that while it is important to ensure that co-offenders are treated fairly, it is also necessary to consider the individual circumstances of each offender. The court acknowledged the applicant's extensive criminal history and substance abuse issues but also recognised that the co-offender, despite having a blemished record, was dealt with more leniently in the Children's Court. The court held that the sentencing judge should have given some regard to the co-offender's sentence, although it did not necessarily mean that the applicant's sentence should be reduced. The court concluded that while the sentence was not manifestly excessive, it was appropriate to intervene to a limited extent to ensure that the sentencing process was fair and just. As a result, the court allowed the appeal and remitted the matter to the District Court for re-sentencing.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
AT CL: The applicant seeks leave to appeal from the sentence imposed upon him by his Honour Judge Black QC in the District Court at Bourke on 1 November 2000, following his plea of guilty to an offence of armed robbery (s 97(2) Crimes Act 1900 - maximum penalty imprisonment for twenty years). When sentencing the applicant his Honour took into account, on a form 1, a further offence of take and drive a conveyance, an offence for which the maximum penalty under s 154A of the Crimes Act is imprisonment for five years. The sentence imposed was one of imprisonment for three years with a non-parole period of eighteen months. Each was back dated to 12 August 2000 to take into account the time spent in custody.Facts: On the evening of 7 February 2000 the victim, Tim Spora, was at his place of work with a woolbroking company in Bathurst Street, Brewarrina. At about 8.45 p.m. the applicant's younger brother, Paul Boney, entered these premises. He was carrying a screwdriver behind his back and he asked the victim whether he had $2. Mr Spora replied in the negative. The applicant, who had followed Paul Boney into the premises, took the screwdriver from him, and threatened to stab Mr Spora. The latter opened his wallet, took out $35 and handed it over. Paul Boney thereafter took the wallet and searched it for further money. While that was happening the applicant asked the victim several times where the safe and money bag were. When informed that there was no safe and that he did not know if there was a money bag, the applicant required Mr Spora to enter a small room in the office. While he there he managed to seize the applicant's wrist which appeared to have the effect of calming him down. Shortly afterwards, after having shut and locked the front door, Paul Boney came into the room and instructed Mr Spora to remain there. Both men then left the shop, although not before the applicant apologised to the victim. Paul Boney picked up the keys to his four wheel drive vehicle. Under the control of the applicant they then drove this vehicle away from the premises. It was located later that night near the saleyards in a damaged condition, consistent with it having been driven through the scrub. When initially spoken to by police, the applicant and his co-offender declined to be interviewed. Each subsequently pleaded guilty to the offence. The co-offender was dealt with in the Brewarrina Children's Court on 6 June 2000 for this and other offences. He received, in relation to those offences, concurrent sentences of one hundred hours community service. This was after taking into account a period of four months detention pending sentence. It is not entirely clear whether his Honour had fully placed before him the breadth and nature of those offences. They are, however, of some importance having regard to the submissions addressed to us today. In substance, it appears that they include, first of all, offences of take and drive a conveyance and enter enclosed land in respect of the charge dated 15 December 1999.