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District Court 27 October 2006

Regina v Phillip Mitchell Boney

[2006] NSWDC 85

Sexual offencesAssault & violenceDomestic & family violencePublic order & justice offences
SENTENCE SEXUAL INTERCOURSE WITHOUT CONSENT VIOLENCE ASSAULT KIDNAP ABDUCTION

Citation: Regina v Phillip Mitchell Boney [2006] NSWDC 85
Court: District Court of New South Wales
Date: 27 October 2006
Judge(s): Finnane QC DCJ

Background

The offender, an Aboriginal man from Moree, had been in an intermittent relationship with the complainant since the mid-1990s, during which they had two children together. The complainant left the relationship by August 2000, but the offender continued a persistent campaign of violence and harassment against her that had begun as early as 1997.

Despite prior gaol terms and apprehended domestic violence orders, the offender escalated his conduct over the years. The offences for which he was sentenced included multiple counts of sexual intercourse without consent (two of them aggravated), three counts of kidnapping (one aggravated), entering a dwelling with intent to commit a serious indictable offence, malicious damage to property, and common assault. The court also dealt with three contraventions of an apprehended domestic violence order and took into account seven further offences listed on a Form 1, including attacks on the complainant and acts of violence against Corrective Services Officers.

The offender had been convicted after a trial. The sentencing proceedings involved detailed documentary evidence of the history of offending against the complainant stretching back to December 1997.

  • What sentences were appropriate across eleven counts, spanning assault, kidnapping, and sexual offences of varying gravity?
  • How should the sentences be structured (concurrently or cumulatively) to achieve an overall sentence that was proportionate but not crushing?
  • What weight should be given to the offender's criminal history, lack of contrition, the complainant's injuries, and the aggravated nature of several offences?
  • How should the offender's Aboriginality be taken into account in sentencing?
  • What was the appropriate treatment of the three apprehended domestic violence order contraventions referred under section 166 of the Criminal Procedure Act 1986, and of the Form 1 offences?

Decision

Finnane QC DCJ described the offences as grave violations of the complainant's rights, characterised by repeated violence, degradation, and an obsessive refusal to accept that the complainant had the right to live independently. The court noted that earlier custodial sentences had failed to deter the offender, and that the escalation to kidnapping and rape represented a serious intensification of conduct that had persisted for nearly a decade.

The court assessed the offender as dangerous and incorrigible, placing significant weight on his criminal history of violence against the complainant and his demonstrated lack of genuine contrition. The obsessive nature of the offending and the physical and psychological harm inflicted on the complainant were central to the court's reasoning in imposing lengthy individual sentences and structuring them on a substantially cumulative basis.

On the question of Aboriginality, the court acknowledged the offender's background as a relevant consideration in sentencing, consistent with the approach required for Aboriginal offenders, but found that it did not substantially alter the outcome given the gravity and persistence of the conduct.

The court imposed an aggregate non-parole period of 20 years (plus one additional year for the section 166 offences) and a total head sentence of 27 years, with the offender eligible for parole on 21 July 2028 and due for release from all custody on 21 July 2032.

Orders Made

  • Count 1 (common assault): Non-parole period of 1 year, commencing 22 July 2005; balance of sentence to 21 July 2007.
  • Count 2 (entering dwelling with intent in circumstances of aggravation): Non-parole period of 3 years, commencing 22 July 2005; balance to 21 July 2012.
  • Count 3 (malicious damage to property): Non-parole period of 6 months, commencing 22 July 2005; balance to 21 July 2006.
  • Count 4 (kidnapping): Non-parole period of 6 years, commencing 22 July 2005; balance to 21 July 2014.
  • Count 5 (sexual intercourse without consent): Non-parole period of 7 years, commencing 22 July 2005; balance to 21 July 2015.
  • Count 6 (kidnapping in circumstances of aggravation): Non-parole period of 8 years, commencing 22 July 2006; balance to 21 July 2018.
  • Count 7 (aggravated sexual intercourse without consent): Non-parole period of 11 years, commencing 22 July 2006; balance to 21 July 2021.
  • Count 8 (sexual intercourse without consent): Non-parole period of 7 years, commencing 22 July 2011; balance to 21 July 2021.
  • Count 9 (kidnapping): Non-parole period of 6 years, commencing 22 July 2011; balance to 21 July 2020.
  • Count 10 (aggravated sexual intercourse without consent): Non-parole period of 10 years, commencing 22 July 2012; balance to 21 July 2028.
  • Count 11 (sexual intercourse without consent): Non-parole period of 7 years, commencing 22 July 2018; balance to 21 July 2032.
  • Section 166 offences (3 x contravening apprehended domestic violence order): Non-parole period of 12 months each, concurrent with each other but partly cumulative on other sentences, commencing 22 July 2025; balance to 21 July 2028.
  • Eligible for parole: 21 July 2028. Release from all custody: 21 July 2032.

Key Takeaways

  • The District Court imposed a total effective non-parole period of 21 years and a head sentence of 27 years, reflecting the gravity of sustained, escalating domestic violence that progressed from assault to kidnapping and rape over nearly a decade.
  • Where an offender has repeatedly reoffended against the same victim despite prior custodial sentences and apprehended domestic violence orders, the sentencing court treated that history as a significant aggravating factor bearing directly on both the individual sentences and their cumulative structure.
  • A finding that an offender is dangerous and without genuine contrition, combined with evidence of obsessive and escalating conduct, supported substantial departure from concurrency in favour of cumulative sentences across related counts.
  • The offender's Aboriginality was considered as a relevant sentencing factor, though in this case it did not materially reduce the overall penalty given the nature, number, and persistence of the offences.
  • Offences referred under section 166 of the Criminal Procedure Act 1986 were sentenced concurrently with each other but partly cumulatively on the balance of the sentences, adding one year to the aggregate non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 61I, 61J, 86, 111(2), 195
- Criminal Procedure Act 1986 (NSW), s 166

Cases cited: None recorded in the provided text.