R v Boyd & Sinclair

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 133 of 1998 No. 146 of 1998

THE QUEEN

WAYNE JOHN BOYD AND

LISA MANDY SINCLAIR

---

JUDGES:	WINNEKE, A.C.J., BROOKING and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 October 1998
DATE OF JUDGMENT:	14 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 85

---

Criminal Law - Sentence - Irruption into premises by concerted action, with personal injury and personal damage

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Leckie	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant Boyd	Mr. T. Moisidis	Adams & Hall
For the Applicant Sinclair	Mr. R. Williams	Kuek & Associates

WINNEKE, P.:

I will invite Brooking, J.A. to deliver the first judgment.

BROOKING, J.A.:

On the afternoon of 28 December 1996 the applicant Wayne John Boyd and the applicant Lisa Mandy Sinclair, accompanied by their brother Glen Graeme Charry, were driven by a friend, Bryant Leslie Thomas, to the home of a man named Smith in Dandenong. Boyd and Smith each claimed to be entitled to a truck which was in Smith's possession, and this dispute, and it may well be other things, had led to bad blood between them. Thomas stayed in the car and he was ultimately charged only with aggravated burglary. Boyd, Charry and Sinclair entered the shed at Smith's home, Boyd carrying a metal baseball bat, Charry an axe and Sinclair a roll of plastic tape with which to bind and gag Smith, who, it was said, was given to screaming like a stuck pig and so would have to be tied up with tape over his mouth.
At the time of the invasion Smith was in the act of selling a small quantity of cannabis to a customer named Channing. Shortly afterwards Channing made his escape through a wall of the shed, leaving, like a cartoon character, his outline as a hole in the wall to mark the point of departure. Boyd attacked Smith with the baseball bat, felling him with a number of blows to the head, arms and upper body. Charry, whose threats with the axe had caused Channing to plunge through the wall, then turned his attention to Smith, threatening him with it. Boyd was throughout demanding from Smith the keys to the truck. At one stage he bit Smith in the nose, and as a result his own mouth and lower face were covered with blood. One way and another, Smith sustained multiple injuries which, as the pleas of guilty accepted, sustained a charge of intentionally causing serious injury.
While Boyd held Smith on the ground, Sinclair's contribution was her attempts, made twice, to tie his hands and gag him with the plastic tape. She then used a baseball bat to smash a fish tank and a light and other fittings in the shed. Boyd used the axe and Charry used the baseball bat and the axe to destroy or damage fittings in the shed and various items of property in it. Smith was attacked for some five to ten minutes before the three intruders left, taking with them a mobile telephone, two bags of cannabis and the keys to the truck. Thomas drove them away.
The two men and their sister were, like Thomas, charged with aggravated burglary but, unlike Thomas, they were also charged with armed robbery, causing serious injury intentionally and damaging property. All four pleaded guilty in the County Court before the same judge and were sentenced on 19 May 1998. Thomas was given a prison sentence of twelve months, wholly suspended. I say no more about his antecedents or role because it has not been suggested that the sentence passed on him could give rise to any argument about disparity. Boyd was sentenced to two years' imprisonment on each of the three most serious offences and nine months for damaging property, giving a total effective sentence of two years. A non-parole period of 15 months was fixed. Sinclair and Charry were each sentenced to 15 months for aggravated burglary, 15 months for armed robbery, 12 months for causing serious injury intentionally and nine months for damaging property, giving a total effective sentence of 15 months. A non-parole period of eight months was fixed.
Boyd's grounds of appeal, as substituted, are, first, that the sentence breached the principle of parity; secondly, that the judge mistook the facts by finding that it was the applicant who conceived the idea of committing the offences; thirdly, that the judge erred in determining that the grievance about the truck was irrelevant; and, fourthly, that the pre-sentence detention was incorrectly calculated.
Sinclair has as her grounds of appeal, firstly, that the judge failed to take into account sufficiently or at all her mental, emotional and psychological condition; secondly, that the judge erred by holding that it was irrelevant that the co-accused Boyd had a justifiable grievance with respect to the truck; thirdly, that the judge failed to give effect to the principle of parity; and, fourthly, that the sentence was manifestly excessive.
At the time of sentence Boyd was aged about 28, Sinclair was 34 and Charry was 25. As regards previous convictions, Boyd had 21 such convictions from five court appearances between 1987 and 1996. These included one for intentionally or recklessly causing injury, six for burglary and four for theft. Sinclair had six convictions from four court appearances between 1986 and 1991. These included possession of a pistol without a licence, taking contraband into a prison and theft. Charry had 24 previous convictions from five court appearances between 1988 and 1996, including one for intentionally or recklessly causing injury. The remaining offences (with the exception of one very minor one) were all sustained in the Children's Court. He had, however, the judge was told, been given a very short suspended sentence, which was subject to appeal, in respect of conduct committed after the subject offences. Boyd had been placed on a twelve-month community- based order only a month before committing the present offences. He had been shown leniency in the past, having never been given an immediate custodial sentence. In addition to breaching the community-based order by the commission of the present offences, he had breached a community-based order made in 1991.
Although it is plain that on 28 December 1996 the two brothers and their sister, equipped with baseball bat, battle axe and restraining tape, were acting in concert on the "One for all, all for one" principle, it does not follow that differentiation in point of role is not possible and appropriate.
Ground 2 of Boyd's grounds complains of the finding that it was his idea that the crimes be committed. This complaint is not made out. The enterprise arose out of Boyd's desire to get back his truck and his dislike of Smith. The material shows that he played the dominant role. His own record of interview shows that the enterprise originated with him. For example, he describes Thomas as "just doing me a favour". The conclusion was not only open but inevitable that Boyd was the prime mover and that his actual role was more significant than that of the other offenders. It was he who felled Smith with repeated blows from the baseball bat, causing serious injuries. His prior convictions were significant and he had been placed on a community-based order only one month before these offences.
As regards parity (ground 1), it is said on his behalf that he should have received the same sentence as that of his brother, Charry. But the judge found that Boyd was the principal, in the sense of main, offender, the instigator of the crimes, the chief participant and the person who actually inflicted the injuries on the victim. All these findings were not only open but virtually inevitable. Boyd was acting in breach of a very recent community-based order. His prior convictions were more significant than those of Charry, although Charry had received the short suspended sentence subsequently that I have mentioned. Not only was it open to the judge to differentiate between Boyd and Charry in sentencing them, but to fail to do so in favour of Charry would, I think, have been wrong. The necessary justifiable sense of grievance is not made out.
As to ground 3, the judge said this:
"The motive for all this appears to have been to avenge a perceived grievance held by you, Boyd, who were at the time in dispute with your victim. It seems to me that the details of that dispute are irrelevant to my task of sentencing you, as is the issue of whether or not that grievance was justified. Whatever the situation in that regard, while it may explain your actions, it does not excuse your actions."
It is certainly arguable that these offences would have been somewhat more serious if they had been committed without the background of the dispute between Boyd and Smith, by bursting into the property of a stranger and attacking him. On the other hand, the view might perhaps be taken that to take into account the existence of the dispute would be wrong as encouraging the notion that men and women can resolve business disputes with an axe and a baseball bat. The argument put to us was that the existence of the dispute, and Smith's role in relation to it, amounted to provocation and that this could be used in mitigation of penalty. But this argument presupposes that Boyd's complaint against Smith was well founded, and it was impossible for the judge on the material before him to say whether Boyd or Smith was in the right in the dispute between them. At best the judge could say that there was a dispute. I am not persuaded that in the passage cited the judge was saying that the existence of the dispute, as opposed to its details and as opposed to the question whether the grievance was well founded, was irrelevant. And even if his Honour was saying this and was wrong in doing so, and this may have affected the sentence passed, the sentence would still be a merciful one with which this Court should not in my view interfere.
Ground 4 alleges error in calculation of the number of days of pre-sentence detention. The judge declared the number of days to be 167. He did this on what he had been told by the Crown and counsel for Boyd had agreed with the Crown's calculation. The Crown now accepts that the judge was misinformed and that the correct period is 185 days for the purposes of the judge's calculation.
I would dismiss Boyd's application except in relation to the calculation of pre-sentence detention, in relation to which I would correct the declaration made below by substituting 185 days for 167 days.
Sinclair's second ground of appeal is covered by what I have said in dealing with Boyd's third ground. By referring to "a justifiable grievance", the ground, like the argument put on Boyd's behalf about provocation, presupposes that Boyd's version about the facts of the dispute should be preferred to Smith's.
Ground 3, which was put forward by Mr Williams as the main ground, complains of disparity. The argument here is that Sinclair should not have received the same sentence as Charry having regard to their respective previous convictions and respective roles. As to previous convictions, most of Charry's were sustained in the Children's Court, and, while he does have a prior conviction for causing injury intentionally or recklessly, I do not think that the judge was required to view Charry's prior convictions as significantly worse than Sinclair's for his purposes, although I mention again the subsequent suspended sentence. As to the respective roles in the commission of the offences, I do not think that Sinclair's role was to be regarded as significantly less than Charry's, notwithstanding that he had been armed with the axe. It was Sinclair who twice attempted to bind and gag Smith. Her conduct was closely connected with the injuries inflicted upon him by Boyd. She had taken the baseball bat to the car and she had found the tape and taken it to the scene with a view to tying up and gagging Smith and any supporter of his who might be present. She said that she wanted to gag Smith "because he screams like a stuck pig". Notwithstanding what was in addition said in argument about the personal circumstances of the two offenders, I do not think that the necessary justifiable sense of grievance has been established.
Ground 1 refers to the mental, emotional and psychological condition of this applicant. There was a good deal of material about her background, including a report from a psychologist, Ms Gorman. This applicant has two children now aged about 12 and 13. She was said to suffer from a borderline personality disorder. She had had a difficult background. She has had problems with drug abuse, but despite this she was able to show that she had a good work history. The judge referred to the matters now relied on in ground 1 and cannot be said not to have taken them into account. Whether sufficient regard was had to them is really a matter to be considered in dealing with ground 4, that of manifest excess.
I am not persuaded that the sentence passed for these serious offences was outside the available range and I would dismiss this application.

WINNEKE, P.:

I agree that each application ought to be dismissed. In doing so I would like to acknowledge the manner in which each counsel addressed his arguments to the Court on behalf of his client.

BATT, J.A.:

I agree in the judgment of Brooking, J.A.

WINNEKE, P.:

In respect of the application of Wayne John Boyd, the Court will allow the application only for the purposes of correcting the amount of pre-sentence detention which his Honour declared. Pursuant to s.18 of the Sentencing Act, instead of the period of 167 days which his Honour declared to be the relevant period, the Court will substitute the period of 185 days and his Honour's sentence will be amended accordingly. I think it is appropriate that we also direct that the substituted period of pre-sentence detention, that is, the amount of 185 days, be noted in the records of the Court, and also that the substituted period be endorsed on the relevant return of prisoners.
Otherwise the applications for leave to appeal against sentence by both Boyd and Sinclair are dismissed.

[1998] VSCA 85

14 October 1998