R v Boxx - [2009] NSWSC 298

CITATION: R v Boxx [2009] NSWSC 298

HEARING DATE(S): 5 February - 13 March; 20 April 2009

JUDGMENT DATE :
21 April 2009

JUDGMENT OF: Studdert AJ

DECISION: Sentenced to imprisonment for a non-parole period of 7 years 6 months commencing on 29 February 2008 and expiring on 28 August 2015. Balance of the term of the sentence to commence immediately thereafter for a further 2 years and 6 months to expire on 28 February 2018. The first date upon which the offender is to be eligible to be released on parole is 28 August 2015.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2),(3), 44(2)
Crimes Act 1914, s 24

CATEGORY: Principal judgment

CASES CITED: Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
R v Blacklidge (NSWCCA, unreported, 12 December 1995)
R v Bollen (1998) 99 A Crim R 510
R v Charman [2007] NSWSC 1177
R v Dodd (1991) 57 A Crim R 349
R v Hill (1981) 3 A Crim R 397
R v Horan [2008] NSWSC 990
R v Previtera (1997) 94 A Crim R 76
The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

PARTIES: Regina v Zachary Aidan Boxx

FILE NUMBER(S): SC 2007/5110

COUNSEL: Peter Barnett SC (Crown)
Mitchell Paish (Accused)

SOLICITORS: Director of Public Prosecutions (NSW) (Crown)
Australian Criminal Law Specialists Pty Limited (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT AJ

TUESDAY 21 APRIL 2009

2007/5110 REGINA v ZACHARY AIDAN BOXX
REMARKS ON SENTENCE

1 HIS HONOUR: The offender Zachary Aidan Boxx stood trial charged with the murder of Michael Healy. The jury found the offender not guilty of murder but guilty of manslaughter and it is now my task to sentence the offender for the crime of manslaughter.

2 The offender gave evidence before the jury as to his movements on the night the deceased met his death. In summary, the offender denied going to the deceased’s home, and he denied being involved in the crime in any way. He gave a version of his movements on the night in question which the jury obviously rejected. In my opinion the jury was correct to do so because the offender’s account was not a reliable one. His evidence was to the effect that he spent most of the night in question driving around looking for a co-offender, Zethan Horan, in Orange, in Blayney, and then back in Orange, before setting off for Bathurst and finally for Mudgee.

3 I remind myself for the purposes of my present task that I must be satisfied beyond reasonable doubt as to matters adverse to the offender, and further that if there are circumstances to be taken into account in favour of the offender, it suffices that these circumstances be proved on the balance of probabilities. See The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 and Leach v The Queen [2007] HCA 3; (2007) 230…

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 Boxx

Details

AGLC: R v Boxx [2009] NSWSC 298
Case: [2009] NSWSC 298
Decision Date: 21 April 2009

CaseChat Overview and Summary

Zachary Aidan Boxx stood trial in the Supreme Court of New South Wales, charged with the murder of Michael Healy. The jury acquitted Boxx of murder but found him guilty of manslaughter. The Court was required to decide on an appropriate sentence for the crime of manslaughter by unlawful and dangerous act or by unlawful and dangerous acts committed as incidental to the carrying out of a joint criminal enterprise. The legal issues included the relevance of the offender’s participation in the crime, the use of force against a vulnerable victim, and the principles of sentencing for manslaughter.

The Court found that the offender's involvement in the crime was significant, even though he joined the criminal enterprise later than his co-offenders. The Court rejected the submission that the offender's culpability was less due to his late involvement, noting that he insisted on committing the crime on the night it was executed rather than on another night when the victim was expected to be absent. The Court also considered the use of force against the victim, who was alone and in bed, and the offender's lack of remorse and contrition. However, the Court acknowledged the strong family support that the offender had, which provided a fair prospect of rehabilitation.

The Court sentenced Boxx to imprisonment with a non-parole period of 7 years and 6 months, commencing on 29 February 2008 and expiring on 28 August 2015. The balance of the term of the sentence was set at a further 2 years and 6 months, to expire on 28 February 2018. The first date upon which the offender is eligible for release on parole is 28 August 2015. The Court did not find special circumstances warranting a reduced sentence, considering the gravity of the crime and the need for deterrence and denunciation.

Orders