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District Court 26 August 2021

R v Boyden

[2021] NSWDC 716

Assault & violenceFraud & dishonestyTheft & property
CRIME I NFLICT ABH 2ND+OFF RELEVANT FACTORS ON SENTENCE GUILTY PLEA MULTIPLE OFFENCES

Citation: R v Boyden [2021] NSWDC 716
Court: District Court of New South Wales
Date: 26 August 2021
Judge: Haesler SC DCJ

Background

The offender and his stepbrother entered a residential property in Dapto in August 2020 to recover a motor vehicle the offender had earlier sold to one of the victims for $2,500. The stepbrother had previously threatened the purchaser, demanding the vehicle back for $1,000 and warning that it would be taken by midnight if he refused.

When both victims were inside the home that evening, the two men arrived and forced entry after the screen door was ripped from its frame. The stepbrother physically restrained one victim on a bed while the offender struck him with a butcher's cleaver on the left shin, hand and arm, causing actual bodily harm. The prosecution accepted the offender had used the flat rather than the sharp edge of the cleaver. The victims were forced to hand over keys to the vehicle.

The two men then drove the stolen vehicle to a service station and left without paying for petrol. They later used a key found on the stolen keyring to steal a second vehicle from the first victim's home in Keiraville. The offender was arrested following a police investigation and had been in custody since.

  • What sentence was appropriate across five charges, including aggravated break and enter committing a serious indictable offence, two counts of stealing a motor vehicle, driving while disqualified, and obtaining property by deception?
  • How should the offender's diagnosed mental illness (schizophrenia) and antisocial personality disorder affect the sentencing exercise?
  • Whether special circumstances existed to justify extending the parole period beyond the statutory ratio.
  • What sentence was proportionate and consistent with the sentence imposed on the co-offender (the stepbrother), having regard to the principle of parity.

Decision

Haesler SC DCJ opened by acknowledging the difficulty of sentencing offenders with mental illness, noting that such cases are "to an extent intractable" and require a sensitive exercise of discretion. Drawing on established principles from Veen (No 2), Engert, and DPP v De La Rosa, his Honour noted that mental illness does not automatically reduce a sentence. Where it contributes to the offence, it may lower moral culpability and reduce the weight given to general deterrence. However, where the illness makes the offender more dangerous to the community, it may support a heavier sentence.

His Honour assessed the objective seriousness of the aggravated break and enter as high. The principal aggravating feature was not the physical severity of the injury but the invasion of the victims' home, the prolonged and terrifying nature of the assault carried out by two men, and the use of a weapon by the offender. His Honour was careful not to sentence the offender for wounding, which was a more serious uncharged offence, consistent with the principle in De Simoni. The offender's role was found to be not significantly less than his stepbrother's, particularly given that it was the offender who used the cleaver.

The offender's diagnoses of schizophrenia and antisocial personality disorder required careful balancing. His Honour recognised the schizophrenia with sympathy and noted it would make custody more onerous, but observed that the antisocial personality disorder remained operative and could not simply be treated as a mitigating factor. A finding of special circumstances was made to allow for a longer parole period, reflecting the need for a structured mental health and rehabilitation program both in custody and on release. Each sentence was reduced by 25% to reflect the early guilty plea.

Parity with the co-offender's sentence in R v Cook [2021] NSWDC 436 was maintained. His Honour noted there were two victims, each requiring vindication, and that the purpose of the entire offending was to reclaim a vehicle that had been legitimately sold, a grievance that could not justify the violence used.

Orders Made

  • Sentences to commence 25 December 2020.
  • Steal motor vehicle (sequence 2): 9 months imprisonment.
  • Steal motor vehicle (sequence 5): 9 months imprisonment.
  • Aggravated break and enter (carrying a standard non-parole period): 2 years and 3 months imprisonment, with a non-parole period of 1 year and 4 months.
  • Driving while disqualified: 3 months imprisonment, with a 12-month driving disqualification.
  • Obtain property by deception: 1 month imprisonment.
  • Aggregate sentence: 3 years and 2 months, commencing 25 December 2020.
  • Non-parole period: 1 year and 7 months (special circumstances found), with eligibility for parole consideration from 24 July 2022.
  • Parole period: 1 year and 7 months.
  • A copy of Dr Furst's psychiatric report to be forwarded by the Registrar to Community Corrections.
  • The question of actual parole release remains with the State Parole Authority, to be determined closer to the parole date.

Key Takeaways

  • Mental illness does not automatically reduce a sentence: where it contributes to an offence, it may lower moral culpability and reduce the weight given to general deterrence, but it may equally support a longer sentence where the illness makes the offender more dangerous to the community.
  • A sentencing court cannot take into account a more serious uncharged offence when assessing the gravity of the conduct, consistent with the principle in The Queen v De Simoni (1981) 147 CLR 383. His Honour declined to treat the cleaver strike as a wounding for sentencing purposes.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were found where a longer parole period was necessary to support a structured mental health and rehabilitation program following release from custody.
  • The District Court maintained parity with the co-offender's sentence while distinguishing the offender's conduct, noting that although the stepbrother took the lead, it was the offender who used the weapon and his role was not significantly less serious.
  • A diagnosis of antisocial personality disorder requires particular attention to community protection at sentencing: R v Lawrence (2005) NSWCCA 91. The court treated the schizophrenia with sympathy but did not allow the personality disorder to operate straightforwardly as a mitigating factor.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Procedure Act 1986 (NSW)
- Road Transport Act 2000 (NSW)

Cases
- Bell v R [2019] NSWCCA 271
- Courtney v R [2007] NSWCCA 195
- DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Engert v R (1995) 84 A Crim R 67
- Lau v R [2010] NSWCCA 43
- R v Cook [2021] NSWDC 436
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Lawrence (2005) NSWCCA 91
- R v Leete (2001) 125 A Crim R 37
- The Queen v De Simoni (1981) 147 CLR 383
- Veen v The Queen (No 2) (1988) 164 CLR 465