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Supreme Court 23 March 2018

R v Stephen James Boyd (No 2)

[2018] NSWSC 380

Assault & violenceHomicideTraffic & drivingDomestic & family violence
SENTENCE MURDER LATE PLEA OF GUILTY ATTACK OVER LENGTHY PERIOD OF TIME ATTACK ON INTERVENER DOMESTIC VIOLENCE OFFENCE

Citation: R v Stephen James Boyd (No 2) [2018] NSWSC 380
Court: Supreme Court of New South Wales
Date: 23 March 2018
Judge: Lonergan J

Background

The offender, a 53-year-old man with a longstanding alcohol problem, was sentenced following guilty pleas to three offences arising from events on 24 and 25 April 2016 at Bundeena, New South Wales. The offences occurred in the context of a domestic relationship marked by escalating violence, a prior assault on a family member, and an existing apprehended violence order.

On 24 April 2016, the offender murdered his long-term partner, Despina Kontozis (known as Tina), at their shared home. Over an extended period, he inflicted extensive sharp and blunt force injuries upon her. When their adult son Daniel intervened, the offender also wounded him, causing injuries sufficient to sustain a charge of wounding with intent to cause grievous bodily harm. The following day, the offender drove in a manner dangerous to the public while aware that police were in pursuit and required him to stop.

The offender initially pleaded not guilty to all charges on 7 July 2017. He changed his plea to guilty on counts 1, 2 and 4 on 23 August 2017, five days before the scheduled trial. His late plea of guilty was accepted in full satisfaction of the indictment.

  • Whether the offender's culpability for murder was so extreme as to warrant a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • What weight, if any, should be given to the offender's late guilty plea as a mitigating factor
  • How the standard non-parole periods of 20 years (murder) and 7 years (wounding with intent) should inform the sentencing exercise
  • How the principle of totality should operate to determine the degree of concurrency or accumulation across three separate sentences
  • Whether the offender demonstrated genuine remorse, and the related question of his statements to health practitioners that minimised his criminality

Decision

Lonergan J declined to impose a life sentence, finding that the Crown had not proved beyond reasonable doubt that the level of culpability was so extreme that only a life term could satisfy the community's interests in retribution, punishment, protection, and deterrence. The court nonetheless characterised the murder as extremely serious: the attack was sustained over a lengthy period, involved both sharp and blunt force injuries, and occurred in a domestic violence context in breach of an existing AVO. The assault on Daniel, who had come to his mother's aid, was treated as an aggravating feature.

The court found that the offender's late guilty plea attracted only a very modest discount. The plea came after an adjournment application had been dismissed, five days before trial, and was accompanied by statements the offender had made to health practitioners that minimised his responsibility. Her Honour was not satisfied the offender had demonstrated genuine remorse. No other meaningful mitigating factors were identified: the offender had prior convictions involving family violence, had been on an AVO at the time of the offences, and had attempted to minimise his criminality in communications with practitioners.

On totality, the court structured the sentences so that they ran partially concurrently and partially cumulatively. Because the murder and the wounding of Daniel occurred in close temporal proximity, two years of accumulation was imposed between those sentences. The dangerous driving offence was entirely separate and attracted a further one year of accumulation, with six months to run concurrently. The result was a total effective head sentence of 33 years and a total effective non-parole period of 25 years and 6 months.

The court also noted that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the murder offence and that the offender may be subject to its provisions at the end of the sentence.

Orders Made

  • Count 4 (dangerous driving knowing police in pursuit): Fixed term of 18 months imprisonment, commencing 27 July 2017 and expiring 26 January 2019.
  • Count 2 (wounding Daniel Boyd with intent to cause grievous bodily harm): Non-parole period of 5 years and 3 months commencing 27 July 2018, expiring 26 October 2023; balance term of 1 year expiring 26 October 2024.
  • Count 1 (murder of Despina Kontozis): Non-parole period of 22 years and 6 months commencing 27 July 2020, expiring 26 July 2043; balance term of 7 years and 6 months expiring 26 July 2050.
  • Total effective head sentence: 33 years; total effective non-parole period: 25 years and 6 months.
  • Eligibility for parole: at the conclusion of the non-parole period for count 1.
  • All sentences to commence from 27 July 2017.

Key Takeaways

  • A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requires the Crown to prove beyond reasonable doubt that the offender's culpability is so extreme that no other sentence can meet the community's interests in retribution, punishment, protection, and deterrence. The Supreme Court held that threshold was not reached here despite the gravity of the offending.
  • A late guilty plea entered only days before trial, following a failed adjournment application, attracts only a minimal sentencing discount. The discount is further reduced where the offender's own statements to third parties demonstrate an attempt to minimise criminality rather than genuine acceptance of responsibility.
  • Under the Muldrock framework, the standard non-parole periods serve as legislative guideposts, but the sentencing court is required to identify all relevant factors and assess the appropriate sentence holistically rather than treat the standard non-parole period as a default.
  • The principle of totality requires a sentencing court to evaluate overall criminality across multiple offences and adjust aggregate sentences where a purely additive approach would produce a result disproportionate to the total offending. Where offences are factually connected but remain legally distinct, partial accumulation is appropriate.
  • Domestic violence context, breach of an AVO at the time of offending, a prior AVO assault involving the same victims, and an attack on a person who intervened to assist the primary victim are all factors that bear significantly on the objective seriousness of the offending and the weight given to aggravating circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 18, 19A, 33, 51B, 59
- Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 3A, 21, 21A, 22, 54A, 61
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
- R v Holder [1983] 3 NSWLR 245
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- R v Thomson; R v Houlten (2000) 49 NSWLR 381; [2000] NSWCCA 309
- Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404
- Cahaydi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Imbornone v R [2017] NSWCCA 144
- R v Boyd [2017] NSWSC 1099
- R v Dawes [2004] NSWCCA 363
- R v Low (1991) 57 A Crim R