R v Boney No. Sccrm-02-253

[2002] SASC 316

R v BONEY

[2002] SASC 316

Court of Criminal Appeal:  Doyle CJ, Debelle and Williams JJ (ex tempore)

1. DOYLE CJ             I agree with the reasons of Debelle J. My view is that the non-parole period was within the range, although, in my opinion, towards the upper end. However, in my view it is not reasonably arguable that it is erroneous, and I would refuse leave to appeal.

2. DEBELLE J           The applicant pleaded guilty to the charge of murder. He was sentenced to life imprisonment with a non-parole period of 18 years. The sentencing judge said that but for the plea of guilty he would have fixed a non-parole period of 24 years.

3. The applicant applied for leave to appeal against the sentence. Leave was refused. He asked this Court to hear and determine his application. We ordered that the application be listed for oral argument.

4. This was a particularly serious crime. The applicant and two others had been drinking alcohol and smoking cannabis during the day. They decided to break into the premises of the deceased believing that he had hard drugs which would be available to them. There was no evidence that the deceased was in any way involved in drugs. Three men forced their way into the deceased’s premises. They overpowered him and dragged him to his bedroom. The applicant and another imposed pressure on the deceased. The applicant then searched the deceased’s bedroom and the kitchen. In the kitchen he found a knife which he then used to intimidate the deceased. The applicant tortured the deceased by cutting him across the face several times for the purpose of obtaining information. There was evidence to suggest that the deceased was also struck with a fist or blunt object. The sentencing judge took those matters as circumstances of aggravation and there is no complaint against his doing so.

5. At some stage the victim was released and the lights of the bedroom extinguished. The applicant believed that the victim was a danger in the darkness. The applicant stabbed him in the back with some force. The wound proved to be fatal. The three then left the house.

6. The next day the applicant returned with one of his co-offenders. They found the deceased and saw that he was dead. The applicant called an ambulance.

7. At first a false story was given to the police. When interviewed by the police the applicant exercised his right to silence. However, he pleaded guilty at the first opportunity when the matter was called on in the Magistrates Court.

8. The applicant is an Aboriginal man who was just 18 years old when this crime was committed. It is apparent that the sentencing judge had regard to that fact and the difficulties that the applicant has encountered throughout his life. Despite some earlier offending he was treated as a first offender.

9. The gravamen of the application is that the non-parole period used as the starting point for this sentence was too high. It is said it is too high for two reasons. First, when it is compared with non-parole periods used as a starting point in other sentences for crimes of murder and, secondly, when compared with other non-parole periods used as a starting point for sentences ordered in respect of the crime of murder committed by young persons.

10. Although it is denied, the effect of the submissions of the applicant is that there is some kind of fixed starting point for sentencing for the crime of murder. The proposition has only to be stated to demonstrate its falsity. The original non-parole period of 24 years for this offence was within the range of sentences for this crime. This was a quite unprovoked murder committed after making a forced entry into the house of the deceased. The deceased was assailed by three men. The starting point was well within the range of the sentencing discretion.

11. The trial judge has made a substantial discount for the plea of guilty and that too was also within the normal range.

12. I do not think that there is any ground which makes this appeal arguable or which justifies granting leave to appeal. I would dismiss the application.

13. WILLIAMS J         I agree.

14. DOYLE CJ             The order of the court is that leave to appeal is refused.