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R v Boyle

R v Boyle

Case [2022] NSWDC 4 3 February 2022

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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…

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 Boyle

Details

AGLC: R v Boyle [2022] NSWDC 4
Case: [2022] NSWDC 4
Decision Date: 03 February 2022

CaseChat Overview and Summary

In the Supreme Court of South Australia, the respondent, Boyle, was charged with robbery, stealing a motor vehicle, and using an offensive weapon to intimidate. The victim was threatened with a knife, leading to the theft of the victim’s vehicle and personal belongings. The respondent pleaded guilty to the charges, and the case proceeded to sentencing.

The court was required to consider several legal issues, including the factors relevant to sentencing such as the respondent's criminal history, drug use, mental health, and childhood disadvantages. The court also had to weigh the impact of the respondent's early guilty plea against the escalation in the seriousness of the offending. Additionally, the court considered the need for specific deterrence and the impact of deterrent sentences in this context.

In determining the sentence, the court noted the respondent’s lengthy criminal history, which included periods of imprisonment. The respondent had a history of drug use and suffered from depression and felt institutionalised. These factors, along with the escalation in the seriousness of the offending, were considered. However, the court also recognised the respondent’s early guilty plea. Despite the respondent’s letter, which was not supported by sworn evidence, the court decided that the need for specific deterrence and general deterrence outweighed the mitigating factors. The court imposed an aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.

The court ordered that the sentence be served in custody, with credit given for the time already spent on remand. The respondent was also ordered to pay restitution to the victim for the stolen property.

Orders

Orders of the court

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

R v Boyle [2022] NSWDC 4

Most Recent Citation

R v Boyle [2023] NSWDC 57

Cases Citing This Decision

R v Boyle [2023] NSWDC 57
Citation 1 (Para 1)

…to a term of imprisonment of six years, six months with a non‑parole of four years and six months for a number of very serious offences: R v Boyle [2022] NSWDC 4. Boyle has a long criminal history and a sad and tragic personal history. It is a history of deprivation, drug use, crime, symptoms of mental illness a…

See all citing cases →

Cases Cited

Lai v R [2021] NSWCCA 217
Citation 1 (Para 61)

…As the Court of Criminal Appeal (CCA) reiterated in Lai v R [2021] NSWCCA 217;…
Nasrallah v R [2021] NSWCCA 207
Citation 2 (Para 64)

…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.…
Moodie v R [2020] NSWCCA 160
Citation 3 (Para 38)

…e 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…
Weribone v R [2018] NSWCCA 172
Citation 4 (Para 82)

…e 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].…
R v Wong [2015] NSWSC 1612
Citation 5

…WCCA 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…
R v MJB [2014] NSWCCA 195
Citation 6 (Para 64)

…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 culpabili…
Bugmy v The Queen [2013] HCA 37
Citation 7 (Para 69)

…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.…
Jinnette v R [2012] NSWCCA 217
Citation 8 (Para 73)

…he 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].…
Muldrock v The Queen [2011] HCA 39
Citation 9 (Para 47)

…ective 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]…
Hili v The Queen [2010] HCA 45
Citation 10 (Para 48)

…iate 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.…
Jackson v R [2010] NSWCCA 162
Citation 11 (Para 73)

…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].…
Cahyadi v R [2007] NSWCCA 1
Citation 12 (Para 86)

…ppropriate 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.…
Markarian v The Queen [2005] HCA 25
Citation 13 (Para 46)

…d 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]…
R v Nemer [2003] SASC 375
Citation 14

…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 Te…
R v Wong [1999] NSWCCA 420
Citation 15

…SWLR 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…
R v Ponfield [1999] NSWCCA 435
Citation 16 (Para 39)

…e 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,…
R v Henry [1999] NSWCCA 111
Citation 17 (Para 34)

…ghest 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.…
R v Henry [1999] NSWCA 111
Citation 18 (Para 34)

…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.…
Postiglione v the Queen [1997] HCA 26
Citation 19 (Para 86)

…ation 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.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 20 (Para 49)

…ed, 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.…
R v De Simoni [1981] HCA 31
Citation 21 (Para 76)

…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.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 8)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Evidence Act 1995 (Cth)
1 mention (from Para 62)

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…