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Supreme Court 28 June 2019

R v Boon

[2019] NSWSC 813

Homicide
CRIMINAL LAW SENTENCE MURDER PLEA OF GUILTY OFFENCE IS IN MID RANGE OF OBJECTIVE SERIOUSNESS

Citation: R v Boon [2019] NSWSC 813
Court: Supreme Court of New South Wales
Date: 28 June 2019
Judge: R A Hulme J

Background

The offender, a 37-year-old concrete mixer driver, killed his 57-year-old site manager at a worksite in Wee Waa on 13 June 2017. In the hours before the attack, the offender had been behaving in a highly erratic and delusional manner, searching drain covers for his ex-wife, whom he believed was being dragged through underground pipes. His conduct over the preceding long weekend had been similarly paranoid and out of character, consistent with the effects of a drug binge.

At the worksite, after the site manager made a comment about the offender's failed relationship, the offender attacked him with a four-pound sledgehammer and a Stillson wrench, striking him repeatedly about the head. The victim was found unconscious with catastrophic head injuries and died in hospital the following morning. An autopsy confirmed at least three to four applications of severe blunt force trauma as the cause of death.

The offender pleaded guilty to murder before Fullerton J on 3 May 2019, after six adjournments. The matter was listed before Hulme J for sentencing on 28 June 2019.

  • Whether the offender intended to kill the victim or merely to inflict grievous bodily harm, given his apparently irrational and drug-affected state at the time of the offence
  • Where the offence sat on the range of objective seriousness for murder
  • What discount was appropriate for the guilty plea
  • Whether special circumstances existed warranting a reduction in the proportionate length of the non-parole period

Decision

The central factual dispute concerned the offender's intention. The offender had told police he did not intend to kill the victim, and his bizarre behaviour on the day was relied upon to suggest diminished capacity to form murderous intent. Hulme J rejected this reasoning. His Honour found that an irrational motive does not preclude a finding of intent to kill, and that the sheer savagery of the beating, including multiple heavy blows to the head after the victim had already fallen, was itself compelling evidence of an intention to kill.

Hulme J placed the offence in the mid-range of objective seriousness for murder. Contributing factors included the sustained and brutal nature of the attack, the use of two heavy metal implements, and the vulnerability of the victim. Mitigating factors weighed in the offender's favour included genuine remorse, an absence of any significant prior criminal history, prior good character, a low likelihood of reoffending, and strong prospects of rehabilitation. A 15% discount was applied for the utilitarian value of the guilty plea, noting the late timing but acknowledging that the offender had never denied criminal responsibility for causing the death.

On special circumstances, the offender's counsel argued that an extended parole period was needed to assist reintegration and sustained drug abstinence following release. Hulme J declined to find special circumstances, satisfied that the standard proportions would produce a parole period more than sufficient for those purposes and that the non-parole period must adequately reflect the minimum time the offender should remain in custody.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to a total term of 18 years and 6 months imprisonment, comprising a non-parole period of 13 years and 10 months and a balance of term of 4 years and 8 months.
  • Sentence dated from 13 June 2017 (date taken into custody).
  • Earliest eligibility for parole: 12 April 2031.
  • The offender was advised of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) upon approaching the end of his sentence.

Key Takeaways

  • An offender's irrational or delusional state at the time of a killing does not, of itself, negate an intention to kill. The Supreme Court found that the ferocity and repetition of blows delivered during a savage beating can independently establish that intent.
  • Where an offender attacks a victim with multiple heavy implements and continues the assault after the victim falls, the objective circumstances of the attack may speak directly to intent, regardless of what the offender says about his purpose.
  • A guilty plea entered after multiple adjournments still attracted a 15% discount, with the sentencing court taking into account the offender's consistent position of not denying criminal responsibility, even though the lateness of the plea limited how that history could affect the formal utilitarian reduction.
  • Special circumstances for varying non-parole proportions were not established merely because an offender will benefit from extended supervision on parole for drug rehabilitation purposes. The standard parole period was considered sufficient for that purpose.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), sentencing courts are required to notify offenders of the statute's potential application as they approach the end of their sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(5AA)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Fang v R [2018] NSWCCA 210
- R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252