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District Court 5 November 2021

R v BONEY

[2021] NSWDC 596

Assault & violenceTheft & propertyTraffic & drivingFirearms & weapons
CRIME VIOLENT OFFENCES ARMED ROBBERY ASSAULT WITH INTENT TO ROB WHILE ARMED PROPERTY TAKE AND DRIVE MOTOR VEHICLE

Citation: R v Boney [2021] NSWDC 596
Court: District Court of New South Wales
Date: 5 November 2021
Judge: Lerve DCJ

Background

The offender was convicted by jury on 9 June 2021 of eight offences arising from a single extended episode of criminal conduct in Wagga Wagga on the night of 7 November 2017. The offending occurred against a backdrop of methamphetamine and alcohol use and involved multiple participants, though the offender was the principal actor in the most serious events.

The episode began with the offender driving a stolen vehicle to a service station on the Sturt Highway, where he entered the premises wearing a balaclava and brandishing a machete. A 19-year-old console operator working alone was chased through the shop for several minutes while the offender swung the machete and smashed fittings. No money was ultimately taken. A delivery worker at the premises was also chased outside.

The offending continued after the service station incident and included taking and driving another vehicle without consent, destroying a vehicle by fire, two separate police pursuits driven dangerously, and using an offensive weapon to avoid apprehension. The offender had a substantial prior record and was on parole at the time of all offending.

  • What were the appropriate individual sentences for each of the eight counts, having regard to objective seriousness, the offender's personal circumstances, and any relevant guideline judgments?
  • How should the principles of totality and partial accumulation apply when imposing an aggregate sentence across multiple serious offences arising from a single episode?
  • What weight should be given to the offender's background, including a history of institutionalisation and drug use, in mitigation of sentence?
  • What non-parole period was appropriate, and how did this sentence interact with a pre-existing sentence the offender was already serving?

Decision

His Honour determined the facts for sentencing purposes consistently with the jury's verdicts, applying the standard established in The Queen v Olbrich: facts adverse to the offender required proof beyond reasonable doubt, while facts in the offender's favour needed only to be established on the balance of probabilities. Because the matter went to trial, no discount for a guilty plea was available, though the judge was careful to note this did not mean any increase in penalty for contesting the charges.

On the most serious counts, assault with intent to rob and armed robbery, his Honour applied the guideline in R v Henry & Ors, which identifies a sentencing range of four to five years for a "typical" armed robbery. The offender's conduct departed significantly from that baseline: he was not a young offender, he had a substantial criminal record, he was on parole, the weapon was a machete, and the assault on the victim was sustained and terrifying. No actual physical injury was inflicted, but the threat of grave violence was immediate and real.

For the remaining counts, his Honour assessed each offence individually before applying totality principles. The offender's history of institutionalisation and disadvantaged background, consistent with the principles in Bugmy v The Queen, were acknowledged as mitigating factors going to moral culpability, but they did not overcome the seriousness of the overall pattern of conduct or the need to protect the community. The absence of remorse and the defended nature of the trial also featured in the assessment.

An aggregate sentence was imposed. His Honour identified what the individual sentences would have been, then structured the aggregate to reflect partial accumulation rather than full concurrence or full accumulation, with a non-parole period set at approximately 64 percent of the total term.

Orders Made

  • The offender was convicted on all eight counts.
  • An aggregate sentence of 11 years imprisonment was imposed, with a non-parole period of 7 years.
  • The non-parole period commences 1 June 2021 and expires 31 May 2028.
  • The balance of term (4 years) commences 1 June 2028 and expires 31 May 2032.
  • The sentencing judge recommended the offender's release to parole at the expiration of the non-parole period.
  • Taking into account the pre-existing sentence imposed on 7 August 2020 (non-parole period expiring 31 March 2024), the total effective sentence across all matters runs from 1 April 2018 to 31 May 2032 (14 years and 2 months).
  • Total actual custody, assuming release at the non-parole period, runs from 1 April 2018 to 31 May 2028 (10 years and 2 months), representing approximately 72 percent of the total effective sentence.

Key Takeaways

  • The District Court confirmed that where a matter proceeds to trial, no discount applies for a guilty plea, but the sentence is not increased merely because the accused put the Crown to proof.
  • Under the Henry & Ors guideline, the four-to-five year range for armed robbery represents a baseline tied to common features including a young offender, limited planning, and a guilty plea; departures are warranted where those features are absent or aggravated, as they were here.
  • Background disadvantage and institutionalisation, recognised under Bugmy v The Queen, can reduce moral culpability but do not operate as a standalone justification for leniency where the offending is serious and the risk to the community is significant.
  • An aggregate sentence must still reflect the individual criminality of each offence; the judgment set out individual component sentences before arriving at a total, demonstrating how totality and partial accumulation were applied in a transparent and structured way.
  • Where an offender is already serving a sentence, the new non-parole period must be assessed in conjunction with the existing one, and the court must consider the total actual time in custody across all sentences to ensure the overall outcome is just and proportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 33B(1)(a), 51B(1), 97(1), 154(1)(a), 154A(1)(b), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 21A(2)(l)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (standard of proof on sentence)
- Bugmy v The Queen [2013] HCA 37 (background disadvantage and moral culpability)
- Veen v The Queen (No 2) (1988) 164 CLR 465
- McNaughton v The Queen (2006) 66 NSWLR 566
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- R v Storey [1998] 1 VR 359
- Alou v R [2019] NSWCCA 231
- Beale v R [2015] NSWCCA 120
- Hall v R [2021] NSWCCA 220
- Hart v R [2014] NSWCCA 172
- Jackson v R [2010] NSWCCA 162