R v Boyle

[2022] NSWDC 4

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Boyle [2022] NSWDC 4

Hearing dates:

15 December 2021

Date of orders:

3 February 2022

Decision date:

03 February 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 6 years 6 months with a non-parole period of 4 years 6 months.

Catchwords:

CRIME - Break enter and steal - robbery with offensive weapon - steal motor vehicle - use an offensive weapon to intimidate

SENTENCING - Relevant factors on sentencing- on parole - lengthy criminal history – drug use - depression - institutionalised – escalation of the seriousness of offending - history of childhood disadvantage - early guilty plea - use of letter from offender unsupported by sworn evidence – impact of deterrent sentences - is specific deterrence required?

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41

Di Simoni v The Queen (1981) 147 CLR 383; [1981] HCA 31

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Jackson v R [2010] NSWCCA 162

Jinettev R [2012] NSWCCA 217

Lai v R [2021] NSWCCA 217

Markarian (2005) 228 CLR 357

Moodiev R [2020] NSWCCA 160

Muldrock v The Queen (2011) 244 CLR 120

Nasrullah v R [2021] NSWCCA 207

Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Boyle NSWDC 18/9/2018, unreported

R vEngert (1995) 84 A Crim R 67

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149

R v Herring (1956) 73 WN (NSW) 203

R v MJB [2014] NSWCCA 195

R v Nemer [2003] SASC 375

R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420

Tepania v R [20018] NSWCCA 247

Veen v The Queen (No 2) (1988) 164 CLR 465

Weribone v R [2018] NSWCCA 172

Texts Cited:

Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011

Does the first prison sentence reduce the risk of further offending? J Trevena and D Weatherburn; Contemporary Issues in Crime and Justice Number 187 October 2015; Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research; Wan et al

The effect of arrest and imprisonment on crime, Crime and Justice Bulletin BOSCAR No 158, February 2012; D Weatherburn

The effect of prison on adult reoffending, Crime and Justice Bulletin BOCSAR, No 143, August 2010; Bagaric and Edrey

The role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, University of Pennsylvania Law School, Penn Law: Legal Scholarship Repository, Georgetown Law Journal, Vol 91: 949 at 976 ff

The Sentencing Advisory Commission and the Hope of Smarter Sentencing, Current Issues in Criminal Justice, Vol 16 No. 2 (2004) 125, 132; Robinson

Category:

Sentence

Parties:

Matthew Boyle (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms S Fraser, Public Defender (for the offender)
Ms N Keay, Deputy Senior Crown Prosecutor

Solicitors:
Morrisons Law (for the offender)

File Number(s):

2020/00347202

sentence

Introduction

1. On the 16 July 2020 Matthew Boyle was released to parole after serving 2 years 9 months of a sentence imposed by His Honour Judge Conlon on 18 September 2018. His Honour had made a finding of special circumstances allowing Boyle a longer period of supervised parole. His Honour was not confident that Boyle had prospects of rehabilitation but he took into account his expressed intention of getting his life back on track. He noted that success would be dependent on two things;

1. Boyle accepting responsibility for his own rehabilitation and

2. his committing to long term residential rehabilitation on release to parole: R v Boyle NSWDC 18/9/2018, unreported at p 15.

2. Boyle reported to parole but his supervision was impeded by COVID restrictions. His response was considered “satisfactory” and he engaged in and completed drug and alcohol counselling. Boyle was not however keeping to the fundamental promise he made in order to be given the privilege of parole – to be of good behaviour.

3. On 17 August 2020 he robbed the bartender of the Balgownie Hotel of $1,100, while armed with an offensive weapon: s 97(2) Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years imprisonment.

4. On 6 October 2020 he broke into the garage of a home in Balgownie, while in company with another person: s 112(2) Crimes Act. This offence carries a maximum penalty of 20 years imprisonment and has a standard non-parole period of 5 years.

5. On 2 December 2020 he stole a motorcycle: s 154F Crimes Act. This offence carries a maximum penalty of 10 years imprisonment. Soon after, in company with another man, he used an offensive weapon to intimidate the owner of that motor cycle, as the owner tried to stop the theft: s33B Crimes Act. This offence carries a maximum penalty of 15 years imprisonment.

6. On 7 December 2020 Boyle was back in custody.

7. After entering guilty pleas in the Local Court he appeared for sentence before me at Wollongong District Court on 15 December 2021. He adhered to guilty pleas entered in the Local Court. After tender of relevant evidence and submissions from counsel. There was insufficient time to finish the matter that day.

8. Boyle must have the full benefit of a 25 % reduction for the utilitarian value of his early guilty pleas: Crimes (Sentencing Procedure) Act 1999. As I will be imposing an aggregate sentence I will take care that the process of aggregation and accumulation does not erode that benefit.

Agreed Facts – summary

Sequence 4: Robbery whilst armed with an offensive weapon

9. On 17 August 2020, the offender rode a black motorcycle to the Balgownie Hotel. At 11:03 pm, he went into the Hotel. He had his helmet on and the visor was down. In one hand he held an item which resembled a handgun; in the other hand, he had a small fleecy bag.

10. The male barman approached the offender intending to tell him to remove his helmet. The offender said “I’ve got a gun and I want all the money”. He lifted his left hand and pointed the item which resembled a handgun in the direction of the only patron of the hotel.

11. The offender yelled at the patron to “get down on the ground”; which he did. The patron was panicked but tried to remain calm - he believed that the offender might shoot him and he kept thinking of his family. The barman also crouched down with his hands up.

12. The offender pointed the item briefly in the direction of the female assistant manager, who had stuck her head out of the office. He then moved that item so that it pointed at the barman. He said, “Don’t fuck around, give me the money”. He then cocked the item, sliding the top part of it back, so it made a clicking sound. The barman thought that the offender might shoot him and feared for his life.

13. The barman walked to the office. The offender said, “don’t fuck around, tell her to open the door now”. The offender was pacing around, in close proximity to the barman, gesturing with the item and pointing it in the direction of the barman and the door to the office where the assistant manager was located. The barman was scared as he was not certain what the offender’s next move would be.

14. The barman knocked on the door of the office where the assistant manager was hiding, stating “he wants the money, just give him the money”. The offender yelled “open the door, open the door”. The assistant manager did not respond. The barman said to the offender “she’s got kids mate, she’s not going to open the door. I will give you whatever money I’ve got in the till”. The offender said “fuck” and pulled down his helmet’s secondary visor to cover his eyes. The offender then said “yep, give me all your money”.

15. The assistant manager telephoned police and hid on the floor of the office. The offender was repeatedly yelling “give me the money”. The barman provided the offender with the till drawer and the offender helped himself to the cash in the drawer. The offender said “fuck I need more, what else do you have”. The barman was fearful about what the offender may do to him.

16. The barman walked to the takeaway beer till which is at the southern end of the bar and opened it. The offender walked around the south end of the bar to be behind the bar. The offender opened one of the two “pokie” tills. The offender helped himself to the money from the takeaway beer till.

17. At approximately 11:06 pm, the offender left the venue. In total, he stole $1,100.00 in cash from the proprietor of the Balgownie Hotel.

18. The barman checked on the patron, who was still lying on the ground, and then knocked on the office door and told the assistant manager that the offender had left and asked for the key to lock the Hotel. The assistant manager was frozen with fear and shock and took a few moments to open the office door. Police arrived shortly after and established a crime scene.

19. A copy of CCTV footage of the incident was tendered.

20. Later, investigating police intercepted the mobile phone calls of the offender. During one conversation, he said: "Last time I owed some cunt I did a stick up to repay 'em." During another conversation the offender said, "I've got a little fakey. I've got a fake, a little fake weap. Umm. A little fake schnun gay and that. Yeah it looks the part. Cunts crumble".

Sequence 2: Aggravated break and enter and commit serious indictable offence

21. On 6 October 2020, at approximately 11:16 am, the offender and a co-offender went to a house in Balgownie, where a former girlfriend lived with her family. No one was home. Both men were wearing caps and face masks.

22. The co-offender opened the garage door and both men entered the garage. Both remained inside for approximately six minutes. The offence was captured on CCTV footage.

23. On 8 October 2020, the victim’s father discovered the garage had been ransacked. The following property was taken: a blue, grey and white motorcycle helmet with a crack on the top, a small white safe, a Sony Playstation 1 console, and a long sleeved motor-cycle shirt. This property is valued at approximately $200. The offender and co-offender did not have permission to enter the premises and take the property.

Steal motor vehicle (Sequence 5); Use offensive weapon with intent to commit an indictable offence (intimidation) in company contrary (Sequence 6)

24. On 30 November 2020, the offender and an associate had a telephone conversation which was lawfully intercepted by police. In the course of this conversation, the offender and his associate discussed “sussing” out bikes to steal.

25. On 2 December 2020, the offender and his co-offender were driving through Wollongong in his white Holden with a trailer. Both the motor vehicle and the trailer had stolen number plates. The offender and co-offender were wearing hi-vis shirts, hats and sunglasses.

26. At 11:06 am, in an intercepted telephone conversation the offender indicated he was looking for a “toy”, “a bike. A bike for Christmas”. He and his co-offender were heard discussing stealing various motorcycles whilst they drive throughout Wollongong.

27. At 1:20 pm, the offender and the co-offender went to a unit complex located in Wollongong. They parked in the driveway and pushed a black Honda CBR from the driveway and loaded it onto the trailer. The owner of the motor cycle was in his unit. His flatmate told him what was happening and also telephoned police.

28. The owner ran downstairs, outside, and saw his motorcycle in the back of the trailer. The offender was walking back to the driver’s side door. The co-offender was closing the tailgate of the trailer. The owner approached the offender. He said “what the fuck are you doing with my bike?” and pushed the offender backwards. The following exchange occurred:

Offender: “We are taking it”

Victim: “No your fucking not, you can take it off now”.

Offender: “It’s not my problem, pay your debts….to the Reichers”. [Note: a local motorcycle gang.

Victim: “What, I have nothing to do with the Reichers”.

29. The offender got back to the driver’s seat of his motor vehicle and then turned around. He had a 25cm knife in a black sheath in his left hand. He did not pull the knife out of the sheath. He said:

“I’ll put this through your fucking neck. I’ve already done 14 years in gaol and I’m not doing anymore because of you”.

30. The owner fearing for his safety stood back. He believed the offender may stab him. The offender got into the driver’s side seat. And he and his co-offender left with the victim’s motorcycle on the trailer. A short time later, police attended. The motorcycle was worth approximately $11,000.00.

31. On 5 December 2020, police lawfully intercepted a telephone conversation between the offender and an associate in which he stated:

“I got a new CBR650 R……..I held a fucking knife to this cunts throat and I got ummmmmm CBR instead”.

32. Boyle was arrested on 7 December 2020. He did not participate in an electronic record of interview but subsequently, he provided information to police that enabled the recovery of the stolen motorcycle. There was some damage to it.

Objective seriousness

Armed robbery

33. Armed robbery is not just a crime against property; it is a crime against people. Where citizens are robbed, assaulted and threatened with a weapon it can have a terrible impact on them. Such crimes, particularly where they occur near places many use, such as pubs, can have more serious consequences. People lose confidence. They can feel that the police cannot protect them. They can learn to fear others and lose trust in others. Where people are fearful, the entire community suffers. As a consequence, we do lose our freedom to go out, and participate in community activities.

34. Where criminals are caught committing such offences, the community can lose trust in the Courts if they do not punish such crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency by sentencing judges led the highest court in NSW, in 1999, to publish a guideline judgment designed to guide the sentencing discretion of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149.

35. The offence involved the use of a gun like object. The weapon has not been recovered. The offender referred to the weapon as a “fakey” but he also acknowledged that it was perceived to be a real weapon and that when threatened with it, he said, “cunts crumble.”

36. Those present at the hotel felt a very real threat to their lives. The employees of the hotel were vulnerable because of their employment. The event was planned. The offence was committed for the financial advantage of the offender.

37. The Court of Criminal Appeal indicated that in “the ordinary case” of an armed robbery, sentences for matters which fell at the lower end of the range, would be in the vicinity of four years imprisonment, following a late plea of guilty: Henry. This offence was not at the lower end of the range.

38. While not prescriptive applicable guideline judgments of the Court of Criminal Appeal must be taken into account: s.42A Crimes (Sentencing Procedure) Act 1999: Moodie v R [2020] NSWCCA 160. Careful attention must be paid to guidelines and maximum penalties as both are important guides to the exercising of a judge’s sentencing discretion

Break and Enter

39. Again, I have the benefit of a guideline judgment to assist in evaluating the seriousness of the offence, however any assessment of objective gravity must be made by reference to the particular facts of the case. Ponfield v R [1999] NSWCCA 435; (1999) 48 NSWLR 327,

40. Here a residential property was entered. The offender committed this offence against his former girlfriend. He broke into her home’s garage. The offence was planned: he took advantage of knowledge of his former partner’s premises, he wore a disguise and he attended the premises in the company of his co-offender. The premises were ransacked and damage was done. Property of relatively low monetary value was taken

41. The degree of criminality involved in breaking into another’s property, including garages, should not be underrated. Offences such as this “cause grave disquiet.” Having had your property entered, gone through and valuables taken can leave a victim with sense of violation and unease. The monetary value of the property taken is one measure of seriousness. Even if property is replaceable; replacement generally causes considerable inconvenience. Not all property is insured but where it is, it is a notorious fact that householders face large premiums, as well as the vast expense of making their homes secure. That said, and noting that this offence carries a standard non-parole period, in the general scheme of things this matter falls at the bottom of the range of matters dealt with in this court and could if it stood alone have been dealt with in the Local Court.

Steal Motor vehicle

42. The motor bike was stolen as the offender said he wanted a motor bike for Christmas. The offence was planned. The premises were targeted. The offenders loaded the stolen motor bike onto a trailer that they had brought with them for that purpose. Both it and the car used had false numberplates attached. A knife was there to be used to break the bike’s steering lock. The offence was committed in company. In mitigation the offender, on arrest, gave police information that allowed the bike to be recovered.

43. Unless you are lucky enough to own a home a motor vehicle is generally the most expensive and valuable item a person can own. To lose a motor vehicle means not just financial loss but loss of the ability to move freely about the community. Not all vehicles are insured and even if they are such thefts lead to higher premiums that are passed on as a cost to the whole community.

Use offensive weapon to intimidate

44. The knife was 25 cms long. It was however kept in its sheath. The use of the knife was accompanied by a very serious threat. The use of the knife forced the victim to step back, and allowed the offender to steal his motor bike. The offender boasted about his use of the knife in a lawfully recorded conversation, acknowledging the fear his offending created.

45. A citizen justifiably attempting to prevent valuable property being taken was threatened and a weapon used to reinforce that threat. The offender showed no concern for him or his property. A community cannot function as a community if members of it behave with such blatant disregard for others.

Maximum penalties

46. Careful attention to the maximum penalties and where applicable any standard non-parole period is required. Maximum penalties provide a sentencing measure to be balanced with all other relevant factors. They also invite a comparison between the instant case and the worst case, That said it is not appropriate here to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian (2005) 228 CLR 357 at [30] and [31]

47. I am required to give content to the standard non-parole period for the break and enter offence. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]; Tepania v R [20018] NSWCCA 247 [103] to [120]

48. Ultimately I must identify all the factors that are relevant to the sentence, discuss their significance and then makes a value judgment as to what is the appropriate sentence given all the factors relevant to the offending behaviour and the offender: Muldrock; Markarian; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.

Criminal Record

49. Boyle has a long and extensive criminal history. When he committed these offences he was on parole for s 111 & 117 Crimes Act offences having been sentenced by Judge Conlon on 18 September 2018

50. There is a Parole Breach report, noting prior to the breaches his conduct was “satisfactory”. But the reports also note that the new offending meant he now posed a significant risk, given the escalation of his criminal activity.

49. The offender’s criminal history is relevant to determining the proper sentence. It indicates that this offence is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences committed, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

Victim Impact Statements

52. In his Victim Impact Statement (VIS) the barman of the Balgownie hotel told me that since the robbery he is no longer his usual confident and bubbly self. He struggles to stay asleep and has moved interstate, losing employment opportunities.

53. The owner of the motor cycle in his VIS also told me of his difficulty in sleeping. He fears that he may be targeted, leading to paranoia, anxiety and social isolation.

54. Those statements draw the court's, the community’s and the offender’s attention, the kind of harm that might be expected to arise from the offences in question, there is little difficulty with acceptance of their contents.

55. Absence of a VIS from other victims does not mitigate.

Subjective case

56. Boyle was born in 1988. In 2008 he received a short suspended sentence for taking a motor vehicle. He breached that bond by committing further offences. The bond was called up and he served that sentence along with others. Since then the longest period he has spent out of custody is 14 months. Apart from that period in 2010 and 2011 his time in the community can be measured in months, sometimes days. He was released to parole on 17 July 2020. His offending commenced on 17 August 2020.

57. He grew up locally. He was raised by his father, a heavy drinker and a harsh disciplinarian. It appears he had little parental supervision. His mother left the home when he was 4 but has maintained some contact. Both parents still offer support. He left high school in year 10. He started an apprenticeship and did a TAFE course but drug use saw his life go downhill. He was kicked out of home at 16. Since he was 19 his drug of choice has been methylamphetamine (ice). In 2007 he spent 3 months at Triple Care Farm. During his 14 months in the community in 2010-2011 he was able to work and form a relationship.

58. I have the psychosocial report prepared in 2016 and a recent report of Ms North, a forensic psychologist. Ms North notes what she describes as Boyle’s “dysfunctional background”. She said his illicit drug use issues were exacerbated by a traumatic incident when he was 18. She notes Boyle describes depressive symptoms from early adulthood.

59. She had concerns about the impact of institutionalisation on him, given his obvious difficulties adapting to life outside custody and his pattern of relapsing into methylamphetamine use soon after release. She makes sensible recommendations for treatment and the need for psychiatric review. It is critical Boyle be supervised, monitored and assisted on release. A copy of Ms North’s report will accompany the warrant.

60. The offender wrote a letter to the court. He offered his “ohnest” insight from his perspective. In the letter he sought to explain why he relapsed into drug use and crime. He says he will take all available programmes and any professional help offered in order to avoid such relapses next time. He says he is “truly sorry and remorseful” and that he is “really not a bad person.”

61. As the Court of Criminal Appeal (CCA) reiterated in Lai v R [2021] NSWCCA 217;

“Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court.”

62. It is important to note however that the CCA was not saying unsworn statements were inadmissible. The comments were directed to matters that were “in dispute.” That statement could not have been prescriptive; as each case must be determined on its own facts. Reasonable minds will disagree when assessing the weight that must be given to matters raised in the proceedings, and not subject to sworn evidence, particularly those to which the Evidence Act 1995 does not apply.

63. I do not reject what he said in its entirety but his statements of good intentions carry no weight. But assertions in letters to the court must be backed up by actions and to date Boyle has done little to give me any confidence his assertions of good intentions will be carried out in custody or on release. I note that there was evidence before Judge Conlon via his brother that the offender was “over it and wants to do something with his life and get off drugs as he is sick of going to gaol:’ at page 12.

Victim of Child Sexual Assault

64. Boyle reports being sexually assaulted while in juvenile detention. Such disclosures are sadly often made. Sometime they can be verified, sometimes not. The damage done to children who are victims of sexual assault by adults is well known, and after the finding of the recent Royal Commission, can be assumed: R v MJB [2014] NSWCCA 195 at [103]. Trauma suffered when a child frequently precedes the commission of crime and can result in an assessment that an offender’s moral culpability is reduced: Nasrullah v R [2021] NSWCCA 207.

65. There was no evidence here of any weight to support either that there was an attempted sexual assault while at Triple Care Farm or that if there was it had such a traumatic impact on him. Accordingly, the sentence cannot be reduced because of this previously undocumented aspect of his history.

66. That is not to say that other matters that impact on his moral culpability should not be considered. There is undisputed evidence of childhood trauma, depression symptoms, long term illicit drug use and anti-social behaviour that all preceded this (alleged) event

67. They are detailed in the material before me, including a helpful report from Ms North, which is careful to analysis the offender’s history in the context of her testing and interviews. She does not parrot the offender’s word rather she has applied her professional skills to the information she had available to her and produced a report whose conclusions and recommendations can be accepted.

68. I also have the benefit of references and certificates

Deprived background of an offender

69. I accept, on balance, that Boyle’s background has left a mark and compromised his capacity to mature and learn from experience. Accordingly, his moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way and should be given “full weight”: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

70. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: Bugmy v The Queen at [43].

71. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy v The Queen at [43]. Social deprivation may impact on those purposes in different ways, as explained the High Court in Bugmy at [44] - [45]. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. Bugmy at [44]; R vEngert (1995) 84 A Crim R 67 at [68].

Institutionalisation

72. The material before me shows that the offender has been institutionalised. Accordingly an attempt should be made in both the community and the offender’s interests to ensure that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism.

73. The risk of institutionalisation, even in the face of entrenched and serious recidivism, may justify such a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]; Jinette v R [2012] NSWCCA 217 at [103].

COVID

74. Boyle has spent his entire time awaiting sentence during the current pandemic. It is now notorious that prisoners are subject to many additional restrictions and hardships as a consequence of the efforts being taken to restrict the spread of the disease. Those restrictions look likely to continue for some time. Although Boyle makes no particular complaint, serving a sentence in such conditions must be taken into account in mitigation of penalty

Submissions

75. Mr Fraser, Public Defender and Ms Keay, Deputy Senior Crown Prosecutor, both provided helpful and comprehensive written submissions. They took me to relevant authorities. On matters of legal principle they were not far apart. Those submissions have informed this judgment.

76. Mr Fraser spoke of the two sides to Mr Boyle; The capable worker and partner and the violent criminal, who while under the grip of drugs shows no respect for others. He noted that given Boyle’s history of re-offending soon after release he should have been more aggressively supervised when released to parole but that the COVID pandemic made that impossible. Mr Fraser cautioned against elevating the seriousness of the steal motor vehicle matter because a knife was present used drawing my attention to what was said in Di Simoni v The Queen (1981) 147 CLR 383; [1981] HCA 31.

77. He noted that Boyle still has family support from his father, his mother and his partner. He also, as the references provided indicate, has support from other members of the community who see his good side. While his prospects must remain guarded, as he gets older, as his letter makes clear, he will have time to learn and reflect. While, ultimately, his release to Parole will be dependent on a decision by the State Parole Authority Boyle he submitted should be given a lengthy period of parole by a finding of special circumstances.

78. In response Ms Keay noted these offences indicated a significant escalation in the sort of crimes committed by Boyle. She noted a number of aggravating features common to each offence; reminding me that while they must be taken into account, care must also be taken not to double count them to the offender’s disadvantage. She made the simple point that if Boyle was having trouble coping in the community he could have called his parole officer and asked for help - he didn’t. He had a partner, he had accommodation and work but he wanted more, including a motor bike for Christmas.

79. She noted that nowhere in his letter is there any acceptance of personal responsibility. She submitted that the sentence imposed must bring home to the offender the need to make better choices. In her submission no finding of special circumstances would be required as even without such a finding the period of parole would meet the purposes argued for by Mr Fraser.

Specific Deterrence

80. Ms Keay urged on me a sentence that by its severity might deter Boyle and give him some incentive to engage in rehabilitation programs. While s 3A(b) Crimes (Sentencing Procedure) Act 1999 and a number or authorities to which I must have regard, such as R v Henry,  state that imprisonment is expected to have a deterrent effect this is sadly another example of facts where it did not.

81. Many studies have concluded prison exerts no significant effect on the risk of recidivism for many offences. In fact prison, terms as Boyle’s history, illustrates can increase the risk of further offending: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011; Does the first prison sentence reduce the risk of further offending? J Trevena and D Weatherburn; Contemporary Issues in Crime and Justice Number 187 October 2015; Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research; Wan et al., "The effect of arrest and imprisonment on crime", Crime and Justice Bulletin BOSCAR No 158, February 2012; D Weatherburn, "The effect of prison on adult reoffending", Crime and Justice Bulletin BOCSAR, No 143, August 2010; Bagaric and Edrey, “The Sentencing Advisory Commission and the Hope of Smarter Sentencing”: Current Issues in Criminal Justice, Vol 16 No. 2 (2004) 125, 132; Robinson, “The role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best”, University of Pennsylvania Law School, Penn Law: Legal Scholarship Repository, Georgetown Law Journal, Vol 91: 949 at 976 ff .

82. The threat of a long, harsh prison term had no impact on this institutionalised offender. He simply did not care about the consequences of his actions to himself. He did not care about the impact on others; the victim, his friends and family or the community. In such case it might be said; not only does the principle of specific deterrence have little utility but it should not be taken into account on sentence. While the studies cited can be accepted a sentencing judge is entitled to assume that specific or general deterrence is a relevant factor in sentencing without requiring proof that that is so: Weribone v R [2018] NSWCCA 172 at [14].

“[T] he fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter:” R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420 at [127].

83. Here, while it must be considered, specific deterrence does not require a significant increase in the sentence, the proper application of other sentencing principles means the aggregate sentence will be long enough to have an impact on Boyle:

“The courts administer justice on behalf of the community. But they administer justice according to law. The sentencing process is governed by the Sentencing Act and other relevant laws. A judge cannot simply impose the sentence that the judge would like to impose, or that the judge thinks would satisfy the public. To do either thing would be contrary to law:” R v Nemer [2003] SASC 375, Doyle CJ at [13].

Structure of sentence

84. There is a need to accumulate the indicated sentences (at least partially) so as to acknowledge the harm done to individual victims. Public confidence in the administration of justice requires there be no suggestion that multiple offences will be punished in the same way as one or two offences.

85. There must also be some period of custody allowed for the breach of parole. Once Boyle started using drugs and associating with old criminal friends and those he had met in gaol, once he started ignoring the advice given by parole officers and counsellors, his return to crime and gaol become inevitable. But care must be taken not to double count matters that aggravate each indicated sentence.

86. Those considerations must, of course, be balanced against general principles. The ultimate aggregate sentence should not exceed what is called for in all the circumstances. The aggregation of all of the sentences must be a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 307-308 per McHugh J; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.

Synthesis

87. I take Boyle’s background into account by way of mitigation. I trust he will be given, and most importantly take, the opportunity to learn how to lead a lawful life in the community. At present he simply does not have the skills to do so but as he grows older he may mature and learn. Although his prospects of rehabilitation are not good I will take into account the possibility he will, with help, learn to keep the promises he makes to change how he wishes to live life.

88. I must return to the objective seriousness of his offending against a number of victims and the community in general. I cannot ignore his lengthy criminal history and poor compliance with parole supervision. In each matter for sentence today there is a community's expectation that offenders will suffer punishment. Each of his victims in entitled to some vindication. A proper sentence also marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring(1956) 73 WN (NSW) 203, at 205.

89. I propose to start this sentence on 7 June 2021, 6 months after Boyle re-entered custody to serve balance of parole. A modest finding of special circumstances has been made, primarily because of the partial accumulation of this sentence on that balance of parole. The indicated sentences reflect the discount for the early guilty pleas.

Orders

Indicated sentences.

1. Robbery armed with offensive weapon – I indicate a sentence of 4 years 10 months imprisonment.

2. Break, enter and steal – As it carries a standard non‑parole period, I indicate a sentence of 1 year 6 months imprisonment with a non-parole period of 1 year imprisonment.

3. Steal motor vehicle - I indicate a sentence of 2 years 3 months imprisonment.

4. Use offensive weapon with intent – I indicate a sentence of 2 years 7 months imprisonment.

90. There will be an aggregate sentence of 6 years 6 months to commence on 7 June 2021. There will be a non-parole period of 4 years 6 months. The offender will become eligible for consideration for release to parole 6 December 2025. There will be a parole period of 2 years. The sentence will expire on 6 December 2027.

91. A copy of Ms North’s report should accompany the warrant.

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Amendments

03 February 2022 - [52] Bellambi amended to Balgownie 

Decision last updated: 03 February 2022