Citation: R v Boney [2008] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 17 December 2008
Judge(s): McClellan CJ at CL, Hulme J, Hidden J
Background
The respondent was sentenced in the District Court on three charges arising from two related incidents in Moree in September 2006. The first set of charges involved him detaining his former de facto partner and assaulting her, causing actual bodily harm. The second, and central, charge concerned events the following morning.
The victim's brother attended the premises where the respondent was staying, entered the yard, and exchanged words with the respondent. The respondent armed himself with two large kitchen knives, rushed at the unarmed man, and stabbed him in the abdomen and slashed him across the chest. The abdominal wound tracked just below the victim's heart, caused the loss of approximately three litres of blood, and left him with an unrecordable blood pressure on hospital arrival. The respondent handed himself in to police shortly after.
The District Court sentenced the respondent to six years imprisonment with a non-parole period of three years for the charge of maliciously inflicting grievous bodily harm with intent. The Crown appealed that sentence as manifestly inadequate.
Legal Issues
- Whether the sentence imposed for maliciously inflicting grievous bodily harm with intent was manifestly inadequate
- Whether the sentencing judge correctly identified reasons for departing below the standard non-parole period of seven years
- Whether a 25% guilty plea discount was warranted on the facts
- Whether the starting point of eight years adequately reflected the objective seriousness of the offence
- Whether reducing the non-parole period to 50% of the total term on the basis of special circumstances involved impermissible double counting
- Whether the sentencing judge sufficiently addressed specific and general deterrence in light of the respondent's criminal record
- Whether the sentence should have been partially accumulated on the sentences for the other two offences
Decision
Hulme J, with whom McClellan CJ at CL and Hidden J agreed, found that the sentence for the grievous bodily harm offence was manifestly inadequate. Several errors contributed to this outcome. The 25% guilty plea discount was excessive: the Crown had conceded below that a 25% discount was appropriate, but the Court found that approximately 15% would have been the correct allowance. The sentencing judge's starting point of eight years also appeared to have been derived by a mathematical back-calculation from the standard non-parole period rather than from an independent assessment of objective seriousness.
The reduction of the non-parole period to 50% of the total term, premised on a finding of special circumstances, was considered excessive and indicative of double counting. Hulme J also found that the sentencing judge had not adequately addressed general and specific deterrence, particularly given the respondent's significant history of violent offending.
Despite finding the sentence manifestly inadequate, the Court exercised its residual discretion with restraint. Two factors weighed against imposing the full range of sentence: the Crown's over-generous concession on the plea discount in the court below, and a period of delay between sentencing and the appeal. The Court also noted the respondent had made genuine efforts in custody, including completing rehabilitation courses and maintaining employment. On that basis, the Court imposed a sentence at a level below the bottom of the range that should have been applied at first instance.
Hidden J agreed the sentence was manifestly inadequate, identifying the over-generous plea discount and the absence of any accumulation as particularly significant, though he found it unnecessary to resolve each Crown ground individually.
Orders Made
- The Crown appeal was allowed
- The sentence imposed by English DCJ for maliciously inflicting grievous bodily harm was quashed
- The respondent was resentenced to a non-parole period of 4 years and 6 months commencing 23 March 2007, together with a further term of 3 years
- The date upon which the respondent becomes eligible for parole was recorded as 23 September 2011
Key Takeaways
- A guilty plea discount of 25% was not warranted where the evidence against the respondent was strong and he had made admissions in a recorded police interview; approximately 15% was the appropriate range.
- Deriving a sentencing starting point by mathematical back-calculation from the standard non-parole period, rather than by independent assessment of objective seriousness, constitutes a discrete sentencing error.
- Reducing the non-parole period to 50% of the total term on the basis of special circumstances, when other mitigating factors have already been applied, risks impermissible double counting.
- In Crown appeals, the Court of Criminal Appeal retains a general discretion to impose a sentence below the range that should have applied at first instance, particularly where the Crown made a concession below that contributed to the inadequacy and where there has been sentencing delay.
- The standard non-parole period of seven years for maliciously inflicting grievous bodily harm with intent (under the Crimes Act and the Crimes (Sentencing Procedure) Act) operates as a guidepost for offences in the mid-range of objective seriousness after a contested trial, and departure below it requires identified reasons.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously inflict grievous bodily harm with intent; maximum 25 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A and following provisions (standard non-parole period of 7 years for this offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g) (aggravating factors, including substantial emotional harm)
Cases:
- R v Fernando (principles relating to sentencing of Aboriginal offenders)
- R v Way (relationship between plea of guilty and objective seriousness below mid-range)