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District Court 5 August 2022

R v Boenesch

[2022] NSWDC 672

Assault & violenceTheft & property
CRIME LARCENY SENTENCING RELEVANT FACTORS ON SENTENCE LATE PLEA FOR THE WOUNDING OFFENCE YOUNG OFFENDER NO CRIMINAL HISTORY

Citation: R v Boenesch [2022] NSWDC 672
Court: District Court of New South Wales
Date: 5 August 2022 (sentence corrected 7 February 2023)
Judge: Haesler SC DCJ

Background

On the evening of 12 March 2021, a 53-year-old man and his friend were walking near the corner of Atchison and Burelli Streets in Wollongong when they were approached by the offender, Justin Boenesch. A brief, innocuous exchange escalated without provocation into a verbal confrontation. When the victim pushed Boenesch away and attempted to leave, Boenesch picked up a sharp piece of metal from the ground and stabbed him multiple times before discarding the makeshift weapon.

The victim was taken to Wollongong Hospital, where surgeons performed an emergency laparotomy to repair a liver injury. Medical records documented four stab wounds, including penetrating injuries to the liver and multiple abdominal wall lacerations. The court observed that, without prompt surgical intervention, the consequences could have been far more serious.

During the altercation, Boenesch also grabbed the victim's iPhone after it fell from his pocket. He was arrested the following day. He pleaded guilty to larceny at the Local Court but did not accept responsibility for the principal offence of wounding with intent to cause grievous bodily harm until days before his trial.

  • What was the appropriate sentence for wounding a person with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, an offence carrying a maximum of 25 years imprisonment and a standard non-parole period of seven years?
  • What weight should be given to mitigating factors, including youth, absence of criminal history, an underlying and untreated mental health condition, and hardship in custody during the COVID-19 pandemic?
  • Did the circumstances of the offending, including the random nature of the attack, the use of a makeshift weapon, and the offender's intoxication by methylamphetamine, aggravate the objective seriousness of the offence?
  • Was a finding of special circumstances warranted, justifying a non-parole period below the statutory ratio?

Decision

Haesler SC DCJ characterised the offending as serious. The attack was unprovoked and effectively random, carried out with a sharp piece of metal used multiple times on an unsuspecting victim. The court found that the offender's intoxication by methylamphetamine did not reduce his culpability but rather increased it, as his drug use rendered him unpredictable and dangerous. The absence of a victim impact statement did not diminish the court's assessment of harm, the judge observing that the physical and likely psychological consequences required no elaboration.

On the mitigating side, the court accepted that Boenesch, born in 1997, was a young first offender with no prior criminal history. Psychological evidence from Ms Godbee established that he suffered from a general anxiety disorder and OCD, and that his drug use had been a means of managing untreated anxiety. The court accepted his evidence that he was genuinely remorseful and that the violence was out of character, though the late guilty plea to the principal offence reduced the weight given to that factor.

The court also took into account the impact of COVID-19 on the conditions of Boenesch's custody. He had endured close to 100 days of lockdown since entering custody, which had exacerbated his depression and severely restricted his access to drug and alcohol programmes and mental health services. The court noted this as a form of additional hardship in custody, distinct from any discount for the plea itself.

Special circumstances were found, justifying a non-parole period that represented approximately 55% of the total sentence rather than the standard two-thirds ratio. The finding reflected the offender's youth, his need for structured rehabilitation upon release, and the difficult custodial conditions he had experienced.

Orders Made

Convictions were recorded for both offences. The corrected sentence (as formally entered following a slip correction under s 43 of the Crimes (Sentencing Procedure) Act 1999 on 7 February 2023) is as follows:

  • Wounding with intent to cause grievous bodily harm (s 33(1)(a) Crimes Act 1900): 4 years and 9 months imprisonment, with a non-parole period of 2 years and 7 months.
  • Larceny: 9 months imprisonment.
  • Aggregate sentence: 4 years and 10 months imprisonment, commencing 13 February 2021.
  • Non-parole period: 2 years and 8 months, with eligibility for release to parole on 12 October 2023.
  • Balance of term: 2 years and 2 months, commencing 13 October 2023 and expiring 12 December 2025.

Key Takeaways

  • A young offender's intoxication by methylamphetamine at the time of a serious wounding was treated by the District Court as an aggravating factor, not a mitigating one, because the drug use increased the offender's unpredictability and dangerousness.

  • Where an offender delays acceptance of responsibility for a principal offence until just before trial, the sentencing court will afford that late plea significantly less mitigating weight than an early guilty plea would have attracted.

  • Untreated mental health conditions and the use of drugs to self-medicate anxiety were found to go to moral culpability, but did not override the objective seriousness of a random, weapon-assisted attack causing serious physical injury.

  • Hardship arising from COVID-19 lockdowns in custody, including restricted access to rehabilitation programmes and mental health services, was recognised as a distinct sentencing consideration capable of supporting a finding of special circumstances.

  • Special circumstances were established on the combined basis of the offender's youth, his need for supervised rehabilitation on release, and the particularly difficult conditions of his custody, resulting in a non-parole period of approximately 55% of the total sentence rather than the standard two-thirds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wound person with intent to cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43 (correction of sentencing errors)

Cases:
- Blackman and Walters v R [2001] NSWCCA 121
- Clarke-Jeffries v R [2019] NSWCCA 56