AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 27 November 2015

Boney v R

[2015] NSWCCA 291

DrugsTheft & property
CRIMINAL LAW APPEAL SENTENCE NOT MANIFESTLY EXCESSIVE OBJECTIVE SERIOUSNESS REFERRAL TO DRUG COURT DRUG TREATMENT ORDER

Citation: Boney v R [2015] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 27 November 2015
Judges: Gleeson JA, Bellew J, RS Hulme AJ

Background

The appellant was an Aboriginal man born in 1988 with an extensive criminal history dating back to 2003. He pleaded guilty to aggravated break, enter and steal at residential premises occupied by a family with three children, committing the offence at night while on parole. He received a 25% discount for his early plea and was sentenced to four years and ten months' imprisonment, with a non-parole period of two years and ten months.

The sentencing judge (Colefax DCJ) had before him psychiatric evidence describing the appellant's borderline personality disorder, possible psychotic episodes, very limited education, no employment history, and severe long-term dependency on cannabis, heroin and methylamphetamines dating from childhood. An earlier Drug Court referral under Part 2 of the Drug Court Act had resulted in a finding of ineligibility.

The appellant sought leave to appeal on three grounds, arguing the sentencing judge misassessed the objective seriousness of the offence, that the sentence was manifestly excessive, and that the judge failed to consider referring him for a compulsory drug treatment order under Part 2A of the Drug Court Act.

  • Whether the sentencing judge erred in assessing objective seriousness by taking into account the appellant's parole status, contrary to the principle in Muldrock v The Queen that objective seriousness is assessed without reference to characteristics of the offender
  • Whether the sentence of four years and ten months was manifestly excessive given the appellant's personal circumstances
  • Whether the sentencing judge erred by failing to consider a referral to the Drug Court for a compulsory drug treatment order under Part 2A of the Drug Court Act 1998

Decision

Ground 1: Objective seriousness. RS Hulme AJ acknowledged the remarks were delivered ex-tempore and allowance should be made for infelicities of expression. Nonetheless, the Court found the sentencing judge's remarks did lead to the conclusion that the appellant's parole status had been taken into account when assessing the objective seriousness of the offence, contrary to the High Court's direction in Muldrock. Ground 1 was made out.

Ground 2: Manifest excess. Despite the error on Ground 1, the Court dismissed the manifest excess argument. The offence involved breaking into an occupied family home at night, while the appellant was on parole, and the theft of personal items. The Court noted the appellant was a recidivist who had spent almost all of the preceding 11 years in custody, and that further imprisonment was unlikely to benefit him. However, there was no practicable alternative sanction before the sentencing court, and community protection remained a significant sentencing consideration. On re-examination, the overall sentence was not manifestly excessive.

Ground 3: Drug Court referral. The Court found this ground had merit. Under section 18B of the Drug Court Act 1998, a sentencing court is required to ascertain whether there are grounds on which the Drug Court might find a person to be an eligible convicted offender. The Court was satisfied the appellant met many of the statutory criteria, including the length of sentence, his long-term drug dependency, and the connection between that dependency and the offending. The earlier referral under Part 2 of the Act was irrelevant to the Part 2A process. The Court was satisfied the referral threshold was met and ordered the matter referred to the Drug Court accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Sentence imposed by Colefax DCJ on 6 February 2015 confirmed
  • Appellant referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order

Key Takeaways

  • Objective seriousness under the standard non-parole period framework must be assessed by reference to the nature of the offending alone; an offender's parole status at the time of the offence is a subjective matter and cannot be factored into that assessment, as confirmed by the High Court in Muldrock v The Queen.
  • An error in the assessment of objective seriousness does not automatically result in a finding of manifest excess. The Court of Criminal Appeal conducted its own analysis and confirmed the sentence was appropriate in light of the offence's circumstances and the community interest in protection from a recidivist offender.
  • Under section 18B of the Drug Court Act 1998, the obligation on a sentencing court is to ascertain whether there are grounds on which the Drug Court might find eligibility. A full positive determination of all criteria is not required at the referral stage.
  • A prior Drug Court referral under Part 2 of the Drug Court Act does not preclude a separate referral under Part 2A. The two parts operate independently, and eligibility under one is not determinative of eligibility under the other.
  • In dismissing the appeal while still ordering a Drug Court referral, the Court illustrated that sentence confirmation and a compulsory drug treatment referral can coexist as outcomes on appeal.

Legislation and Cases Referenced

Legislation:
- Drug Court Act 1998 (NSW), particularly ss 5A and 18B
- Mental Health Act 2007 (NSW)
- Criminal Appeal Act 1916 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120