Citation: R v Harvey & Boye [2015] NSWDC 398
Court: District Court of New South Wales
Date: 18 December 2015
Judge: Judge S Norrish QC
Background
Two co-offenders appeared for sentence after pleading guilty to a charge of recklessly causing grievous bodily harm while in company, arising from an incident at Kelso on 11 November 2011. The plea was entered as an alternative to the more serious charge of intentionally causing grievous bodily harm, and was accepted by the Crown in full discharge of that count. The first offender (Harvey) also pleaded guilty separately to a charge of recklessly causing grievous bodily harm to a second victim.
The incident arose from an acrimonious dispute involving the second offender's (Boye's) former partner at residential premises. A physical altercation broke out, during which both offenders inflicted injuries on two victims. The first victim, Luke Hutchin, had removed his shirt and approached Boye willingly before the fight escalated; the second victim, Alecia Cole, sustained injuries after intervening.
Sentencing was complicated by a substantial delay between the offences in November 2011 and the eventual proceedings, differing periods spent on remand by each offender, breaches of conditional liberty, and individual offender-specific considerations including mental health and cognitive issues.
Legal Issues
- What weight should be given to the breach of conditional liberty (parole for Harvey; a section 9 bond for Boye) as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999?
- How should the sentencing court avoid "double counting" where parole has already been revoked and a balance of sentence has been served?
- What effect did significant delay between offending and sentencing have on penalty?
- How should time in pre-sentence custody be allocated across sentences, particularly where part of that custody was referable to a separate offence?
- Were there special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of sentence, including by reason of mental disability or cognitive impairment?
- How should totality principles shape the overall structure of cumulative or concurrent sentences?
Decision
His Honour sentenced both offenders, taking into account the agreed facts, the nature and context of the offending, and each man's individual circumstances. The court accepted that Hutchin was a willing participant in the initial fight, and that there was no meaningful premeditation. These features moderated the objective seriousness to some degree, though the infliction of grievous bodily harm in company remained a serious category of offending carrying a maximum of 14 years and a standard non-parole period of five years.
On the breach of conditional liberty issue, Harvey's breach of parole was treated as an aggravating factor. However, the court noted that caution is required to avoid double counting where parole has already been revoked and the offender has served the balance of that parole period in custody. Citing R v Callaghan, His Honour was careful not to penalise Harvey twice for the same breach. Boye's breach of a section 9 bond was treated as a less serious form of breach than a parole breach, though still an aggravating circumstance.
The court structured Harvey's sentences to commence in January 2014, partially accumulative on his earlier six-month sentence for assault occasioning actual bodily harm. This reflected totality principles, avoiding a crushing overall sentence while still marking the cumulative nature of the criminality. Boye's sentences commenced from the date of his arrest and remand on 31 January 2015.
Special circumstances were found to exist in respect of both offenders, warranting an adjustment to the standard ratio between the non-parole period and the balance of sentence. The court identified mental health and cognitive difficulties as relevant factors supporting a longer period on supervised parole, to assist with rehabilitation and reintegration.
Orders Made
• Count 2 (Mr Boye): Convicted. Non-parole period of one year six months commencing 31 January 2014 and expiring 30 July 2016. Balance of sentence one year nine months expiring 29 April 2018.
• Backup charges of affray and assault occasioning actual bodily harm in company (Mr Boye): Withdrawn and dismissed.
• Backup charge of assault occasioning actual bodily harm in company and related charge of affray (Mr Harvey): Withdrawn and dismissed.
Note: The judgment records that both offenders were given non-parole periods expiring in mid-July 2016, with Harvey eligible for parole on 17 July 2016 and Boye eligible on 30 July 2016. Associated backup charges (affray and assault occasioning actual bodily harm in company) were withdrawn and dismissed for both offenders.
Key Takeaways
- The District Court applied the principle from R v Callaghan that a court must exercise caution to avoid "double counting" when treating a parole breach as an aggravating factor where parole has already been revoked and the balance served in custody.
- A breach of a section 9 bond constitutes a breach of conditional liberty and is an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, though it is treated as less serious than a breach of parole.
- Where part of an offender's pre-sentence custody is referable to a separate and distinct conviction, a sentencing court cannot attribute that entire period of custody solely to the offences being sentenced.
- Special circumstances, including mental health difficulties and cognitive impairment, can justify extending the balance of sentence (the parole period) beyond the standard ratio to support supervised rehabilitation after release.
- Totality principles operated to make Harvey's sentences partially rather than wholly accumulative on his earlier sentence, avoiding a combined term that would be disproportionate to the overall criminality.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(1), 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(2), 166
Cases
- R v Callaghan (2006) 160 A Crim R 145
- DPP v De La Rosa [2010] NSWCCA 194
- Muldrock v The Queen [2011] HCA 39
- R v Thomson and Houlton [2000] NSWCCA 309 (49 NSWLR 383)
- R v Todd (1982) 2 NSWLR 517
- Veen (No 2) v The Queen (1988) 164 CLR 465