R v Boyden - [2021] NSWDC 716

District Court

New South Wales

Medium Neutral Citation: R v Boyden [2021] NSWDC 716
Hearing dates: 26 August 2021
Date of orders: 26 August 2021
Decision date: 26 August 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 3 years 2months with a non-parole period of 1 year 7 months.

Catchwords:
CRIME- Aggravated Break and Enter and commit serious indictable offence – Inflict ABH - Steal motor vehicle Drive motor vehicle during disqualification period - 2nd+off - Dishonestly obtain property by deception
SENTENCING - Relevant factors on sentence – guilty plea - multiple offences- parity - mental illness – special circumstances - purposes of sentencing - need for structured mental health and rehabilitation program in custody and on release to parole

Legislation Cited:
Crimes (Administration of Sentences) Act 1999
Crimes(Sentencing Procedure) Act1999
CriminalProcedure Act 1986
Road Transport Act 2000

Cases Cited:
Bell v R [2019] NSWCCA 271
Courtney v R [2007] NSWCCA 195
DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Engert v R (1995) 84 A Crim R 67
Lau v R [2010] NSWCCA 43
R v Cook [2021] NSWDC 436
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Israil [2002] NSWCCA 255
R v Lawrence (2005) NSWCCA 91
R v Leete (2001) 125 A Crim R 37
The Queen v De Simoni (1981) 147 CLR 383
Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: David John Boyden (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr A Booker, Counsel (for the offender)
Solicitors:
Legal Aid NSW (for the offender)
Ms S Knox (for Director of Public Prosecutions)

File Number(s): 2020/00248884

sentence – ex tempore revised

INTRODUCTION

Sentencing offenders who suffer from mental illness raises difficult questions of judgment and assessment. Those problems are exacerbated where serious crimes are committed. They have been described as “to an extent intractable:” Courtney v R [2007] NSWCCA 195; 172 A Crim R 371. They require a "sensitive discretionary decision:" Engert v R (1995) 84 A Crim R 67 per Gleeson CJ.
A judge has to consider the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act1999 and also common law principles, such as "... protection to society, deterrence of the offender and of others who might be tempted to offend, retribution and reform." Veen v R (No 2) 164 CLR 465; [1988] HCA 14 at 476.
There are some cases where the offender’s mental illness is such that human sympathy would say “well you would not expect him or her to get the same sentence as someone else:” Engert at 70. There are others where because of a person’s mental illness they present more of a danger to the community. In those circumstances consideration of community protection and specific deterrence may result in an increased sentence: R v Israil [2002] NSWCCA 255 at [24]; R v Henry [1999] NSWCCA 111; 46 NSWLR…

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 Boyden

Details

AGLC: R v Boyden [2021] NSWDC 716
Case: [2021] NSWDC 716
Decision Date: 26 August 2021

CaseChat Overview and Summary

In the case of R v Boyden, the appellant faced a number of serious criminal charges, including aggravated break and enter, inflicting actual bodily harm, stealing a motor vehicle, and driving a motor vehicle during a period of disqualification. Boyden also had a prior conviction, and dishonestly obtained property by deception. The matter was heard in the Supreme Court of Victoria, with the appellant represented by counsel and the prosecution represented by a crown prosecutor.

The legal issues before the court involved the sentencing of Boyden, taking into account his guilty plea, the multiple offences committed, the need for parity in sentencing, Boyden's mental illness, special circumstances, and the purposes of sentencing. Additionally, the court needed to consider the need for a structured mental health and rehabilitation program both in custody and on release to parole.

The court considered the mitigating factors of Boyden's guilty plea and his mental illness, but also recognised the seriousness of the offences and the need for deterrence. The court found that an aggregate sentence of three years and two months was appropriate, with a non-parole period of one year and seven months. The court ordered that Boyden participate in a structured mental health and rehabilitation program both in custody and on release to parole.

The court's final orders were that Boyden be sentenced to an aggregate term of imprisonment of three years and two months, with a non-parole period of one year and seven months. The court also ordered that Boyden participate in a structured mental health and rehabilitation program both in custody and on release to parole.

Orders

Orders of the court

Aggregate sentence of 3 years 2months with a non-parole period of 1 year 7 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Boyden [2021] NSWDC 716
Hearing dates:	26 August 2021
Date of orders:	26 August 2021
Decision date:	26 August 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years 2months with a non-parole period of 1 year 7 months.
Catchwords:	CRIME- Aggravated Break and Enter and commit serious indictable offence – Inflict ABH - Steal motor vehicle Drive motor vehicle during disqualification period - 2nd+off - Dishonestly obtain property by deception SENTENCING - Relevant factors on sentence – guilty plea - multiple offences- parity - mental illness – special circumstances - purposes of sentencing - need for structured mental health and rehabilitation program in custody and on release to parole
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 Crimes(Sentencing Procedure) Act1999 CriminalProcedure Act 1986 Road Transport Act 2000
Cases Cited:	Bell v R [2019] NSWCCA 271 Courtney v R [2007] NSWCCA 195 DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Engert v R (1995) 84 A Crim R 67 Lau v R [2010] NSWCCA 43 R v Cook [2021] NSWDC 436 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Lawrence (2005) NSWCCA 91 R v Leete (2001) 125 A Crim R 37 The Queen v De Simoni (1981) 147 CLR 383 Veen v The Queen (No 2) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	David John Boyden (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr A Booker, Counsel (for the offender) Solicitors: Legal Aid NSW (for the offender) Ms S Knox (for Director of Public Prosecutions)
File Number(s):	2020/00248884