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District Court 3 February 2022

R v Boyle

[2022] NSWDC 4

Assault & violenceTheft & propertyFirearms & weapons
CRIME BREAK ENTER AND STEAL ROBBERY WITH OFFENSIVE WEAPON STEAL MOTOR VEHICLE RELEVANT FACTORS ON SENTENCING ON PAROLE

Citation: R v Boyle [2022] NSWDC 4
Court: District Court of New South Wales
Date: 3 February 2022
Judge: Haesler SC DCJ

Background

The offender had been released to parole in July 2020 following a sentence imposed in 2018, during which the sentencing judge had made a finding of special circumstances and expressed qualified hope that the offender would commit to residential rehabilitation. Although the offender's parole supervision was initially impeded by COVID-19 restrictions and his compliance was rated "satisfactory," he did not maintain the good behaviour that his parole required.

Within weeks of release, the offender committed a series of serious offences in the Wollongong area between August and December 2020. Those offences included an armed robbery at a hotel using an item resembling a handgun, a break and enter at a residential garage in company, the theft of a motorcycle, and the use of an offensive weapon to intimidate the motorcycle's owner when he attempted to intervene. The offender was back in custody by 7 December 2020.

The offender entered early guilty pleas in the Local Court and appeared for sentence in the Wollongong District Court in December 2021. The court was required to impose an aggregate sentence across all four matters.

  • What weight should be given to the offender's background of childhood disadvantage, drug dependence, depression, and institutionalisation in mitigation of sentence?
  • How should the court balance general and specific deterrence against rehabilitation prospects where an offender has a lengthy criminal history and has previously failed to comply with parole?
  • How does the court apply the 25% utilitarian discount for early guilty pleas within an aggregate sentencing framework without eroding that discount?
  • Whether a finding of special circumstances was warranted, and how partial accumulation on the balance of an existing parole period should affect the sentence structure?
  • What evidentiary weight, if any, should be given to an unsworn letter from the offender expressing remorse or intention to change?

Decision

Haesler SC DCJ acknowledged the offender's significant background of childhood disadvantage, drug dependence, depression, and a deeply entrenched pattern of institutionalisation. Consistent with the High Court's approach in Bugmy v The Queen, the court accepted that such disadvantage does not diminish in relevance simply because an offender has an extensive criminal history. These matters were taken into account in mitigation, though the court was candid that the offender's prospects of rehabilitation were not good.

The court examined whether specific deterrence remained a meaningful sentencing consideration given the offender's history and apparent resistance to deterrent sentences. The court noted that the evidence suggested specific deterrence had limited utility in this case, but that general deterrence, punishment, and the vindication of victims retained full weight. The court drew on R v Engert and R v Henry for the proposition that where specific deterrence has little practical effect, the other purposes of sentencing are not diminished.

On the question of the unsworn letter from the offender, the court declined to treat it as carrying significant evidentiary weight, noting that expressions of remorse and intention to change must be assessed carefully where they are unsupported by sworn evidence and where the offender's conduct tells a different story. The court also noted the offender had made similar promises before his previous sentence, which he had failed to honour.

The court applied a 25% reduction for the utilitarian value of early guilty pleas and made a modest finding of special circumstances, primarily because the aggregate sentence was partially accumulated on the balance of the existing parole period. The aggregate sentence commenced on 7 June 2021, six months after the offender re-entered custody to serve the parole balance.

Orders Made

  • Robbery while armed with offensive weapon: 4 years 10 months imprisonment
  • Break, enter and steal (with standard non-parole period): 1 year 6 months imprisonment, non-parole period of 1 year
  • Steal motor vehicle: 2 years 3 months imprisonment
  • Use offensive weapon with intent (intimidation): 2 years 7 months imprisonment
  • Aggregate sentence: 6 years 6 months, commencing 7 June 2021
  • Non-parole period: 4 years 6 months
  • Parole eligibility date: 6 December 2025
  • Parole period: 2 years; sentence to expire 6 December 2027
  • A copy of Ms North's report to accompany the warrant

Key Takeaways

  • The District Court confirmed that an offender's background of childhood disadvantage retains mitigating relevance regardless of a lengthy criminal history, consistent with Bugmy v The Queen, though it will not override other sentencing objectives where offending is serious and persistent.

  • Where specific deterrence has demonstrably little practical effect on a particular offender, the court does not thereby reduce the weight given to general deterrence, retribution, and victim vindication; those purposes continue independently.

  • An unsworn letter from an offender expressing remorse or intention to rehabilitate carries limited evidentiary weight, particularly where it is contradicted by the offender's prior conduct and earlier unfulfilled promises to the court.

  • Under the Crimes (Sentencing Procedure) Act 1999, an offender who enters early guilty pleas is entitled to the full utilitarian discount of 25%; when an aggregate sentence is constructed, the court must take care that the process of accumulation does not inadvertently erode that discount.

  • A finding of special circumstances may be justified by partial accumulation of a new sentence on an existing parole balance, even where the offender's prospects of rehabilitation are assessed as poor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 97(2), 112(2), 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Cahyadi v R [2007] NSWCCA 1
- Di Simoni v The Queen (1981) 147 CLR 383
- Hili v The Queen (2010) 242 CLR 520
- Jackson v R [2010] NSWCCA 162
- Jinette v R [2012] NSWCCA 217
- Lai v R [2021] NSWCCA 217
- Markarian v The Queen (2005) 228 CLR 357
- Moodie v R [2020] NSWCCA 160
- Muldrock v The Queen (2011) 244 CLR 120
- Nasrullah v R [2021] NSWCCA 207
- Ponfield v R (1999) 48 NSWLR 327
- Postiglione v The Queen (1997) 189 CLR 295
- R v Boyle NSWDC 18/9/2018 (unreported)
- R v Engert (1995) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Herring (1956) 73 WN (NSW) 203
- R v MJB [2014] NSWCCA 195
- R v Nemer [2003] SASC 375
- R v Wong (1999) 48 NSWLR 340