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Court of Criminal Appeal 19 August 2008

BONEY v R

[2008] NSWCCA 165

Sexual offencesAssault & violencePublic order & justice offences

Citation: Boney v R [2008] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 19 August 2008
Judge(s): McClellan CJ at CL, Hulme J, Mathews AJ

Background

The appellant was convicted by jury in the District Court of eleven offences arising from three separate incidents against a woman with whom he had previously been in a relationship. The offences occurred across three discrete periods in June and July 2005, all in Moree, New South Wales. A non-publication order protected the complainant's identity throughout the proceedings.

The offences covered assault, malicious damage, entering a dwelling with intent to commit a serious indictable offence, unlawful detention (with intent to obtain an advantage, namely sexual intercourse), and multiple counts of sexual intercourse without consent, including aggravated forms involving prior physical violence or threatened violence with a weapon.

Finnane DCJ sentenced the appellant in the District Court in October 2006 to an effective term of 27 years' imprisonment, with aggregate non-parole periods totalling 20 years. The appellant appealed both conviction and sentence to the Court of Criminal Appeal.

  • Whether the conviction on all eleven counts was safe and supported by the evidence
  • Whether the sentences imposed by the District Court contained error, particularly in their overall structure and cumulative effect
  • Whether the aggregate sentence satisfied the totality principle (that is, whether the combined effect of all sentences was proportionate to the overall criminality)
  • Whether special circumstances existed justifying adjustment of the ratio between the non-parole period and the balance of the term on the most serious count

Decision

The Court unanimously dismissed the appeal against conviction. No error was identified in the jury's verdicts across any of the eleven counts, and the court found no basis to disturb the findings of fact made at trial.

On sentence, the Court granted leave to appeal and found error in the structure of the sentences imposed on counts 2 and 4 through 11. The sentences on counts 1 and 3 were left undisturbed. The Court accepted that the overall sentencing structure required correction to properly reflect the totality principle, particularly given the substantial number of individual sentences running consecutively.

The Court restructured the sentences on the affected counts, staging them across several commencing dates to create an appropriately cascading sequence. The most serious count (count 7, aggravated sexual intercourse without consent) attracted a non-parole period of 6 years and a total term of 10 years, commencing on 22 July 2010. The Court also found special circumstances warranting an adjustment to the ratio between the non-parole period and the balance of term on that count, given the length of the total effective sentence.

The Court noted that the period during which the appellant would be eligible for parole, approximately 3 years, represented less than one third of the total non-parole period. It observed that the minimum period of incarceration remained appropriate and that an extended parole period was unlikely to serve any practical benefit if rehabilitation had not occurred before the total sentence expired.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Sentences on counts 2 and 4 to 11 quashed and replaced as follows:
  • Count 2: fixed term of 3 years from 22 July 2005
  • Count 4: fixed term of 3 years from 22 July 2005
  • Count 5: fixed term of 4 years from 22 July 2005
  • Count 9: fixed term of 3 years from 22 July 2006
  • Count 10: fixed term of 5 years from 22 July 2006
  • Count 11: fixed term of 4 years from 22 July 2006
  • Count 6: fixed term of 4 years from 22 July 2008
  • Count 7: non-parole period of 6 years and total term of 10 years from 22 July 2010
  • Count 8: fixed term of 4 years from 22 July 2008
  • Each s 166 Criminal Procedure Act charge: fixed term of 1 year from 22 July 2016
  • Sentences on counts 1 and 3 dismissed (original sentences undisturbed)
  • Parole eligibility date recorded as 22 July 2017

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal found no basis to disturb jury verdicts across eleven counts of assault, unlawful detention, and sexual offences arising from three separate incidents
  • The totality principle requires that where multiple serious offences attract consecutive terms, the cumulative effect of the overall sentence must remain proportionate to the offender's total criminality, even where each individual sentence is otherwise appropriate
  • Special circumstances can justify adjusting the standard ratio between a non-parole period and the balance of term where the length of the aggregate sentence is itself a relevant consideration
  • Sentences on counts 1 and 3 were upheld intact, demonstrating that a partial sentence appeal may succeed on some counts while failing entirely on others within the same proceedings
  • Under s 166 of the Criminal Procedure Act, charges taken into account on a Form 1 basis may attract separate fixed-term sentences, and in this case those sentences were structured to commence at the tail end of the total effective term

Legislation and Cases Referenced

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

Cases:
No specific cases were identified in the portions of the judgment provided.