On the evening of 12 March 2021, the victim in this matter, a 53 year old man, and his friend left a Wollongong club. As they were approaching the corner of Atchison and Burelli Streets, the victim saw a young man coming towards him and said, "How's it going?" The young man became verbally abusive. The matter soon escalated, with the young man getting too close to the victim and his friend. It got to the stage where the victim had to push the young man away. At that point, the young man said, "I'm going to stab you." No weapon was seen, and the victim put his hand on the offender's shoulder and started to walk away,. So too did his friend.
As he walked away and he felt a whack to his back, under his arm. He turned around and said, "So it's a fight, mate, is it?" a number of punches were thrown by the young man. Eventually, the victim hit back. At that stage his iPhone fell out of his pocket. When he went to pick it up, the young man grabbed it. He also said to his victim, "You've been stabbed." Only at that point did the victim looked down and see he was bleeding. Triple-0 was called. An ambulance attended and the victim was taken to the Wollongong Hospital.
A police investigation followed. The young man was identified as Justin Boenesch. He was arrested on 13 March 2021.
He was treated at the Wollongong Hospital. He underwent an emergency laparotomy and surgical repair of a liver injury. The hospital noted four stab wounds. It was noted there were; a 2 centimetre long and 1.5 centimetre deep penetrating injury - it says "segment 4B" but it does not explain where segment 4B is - a 2 centimetre long superficial liver injury superior to the above injury, which I would presume, therefore, is connected, and there were four abdominal wall injuries, including a 7 centimetre laceration through to the peritoneum, a 3 centimetre right upper quadrant superficial laceration, a superficial left upper quadrant laceration and one lateral chest wall laceration.
It would appear that the liver injury was the most serious. Unfortunately, the prosecution were unable to obtain a more detailed medical report in the time available. Nevertheless, it is clear from where the injuries occurred and their nature, particularly the liver injury, that had it not been for the intervention of the Wollongong Hospital, more serious harm could have been occasioned.
R v Boenesch [2022] NSWDC 672 | Case summary | Zoe
There is no Victim Impact Statement before the Court but that does not mitigate. It takes no imagination to understand the impact of such an injury on the victim in this matter.
All the evidence before me, including the evidence of Mr Boenesch today, indicates that he was significantly intoxicated, probably with methylamphetamine, at the time.
The interaction started innocently enough. The escalation was pointless. A minor verbal dispute resulted in a man in hospital, suffering serious injuries and a young man who has a lot of promise is in custody facing a sentence for an offence which carries a maximum penalty of 25 years imprisonment with a standard non‑parole period of seven years.
After his arrest, and when the matter was before the Local Court, Boenesch accepted he was guilty of stealing the mobile phone, but other matters were put in contest. It was not until a few days before the date of his trial that he finally accepted responsibility for the principal offence for sentence, that is, wound a person with intent to cause grievous bodily harm: s 33(1)(a) Crimes Act 1900.
A sentencing Court has to consider the objective circumstances and seriousness of an offence. Boenesch's evidence is that is he was not at the time carrying a weapon. He does not know exactly what the weapon was. He said that he picked up a piece of metal and chose to use it and use it multiple times. He then discarded it. It is obvious from the nature of the penetrating wounds that it must have been a sharp piece of metal and he must have been aware of that fact.
The fact that he was intoxicated cannot mitigate the seriousness of his offending. To the contrary, it makes the offending worse because his drug use made him more unpredictable and, frankly, as is obvious, dangerous.
Wollongong is a city where people do, and should, feel safe going out at night and not be subjected to unprovoked violence that puts them in hospital, leaving them scared. And it would be obvious given the injuries, potentially psychologically damaged. The Court does not and should not underestimate the impact of such matters on both the victim and the community.
On one of the purposes of sentencing is to ensure vindication of the victim, to appreciate the damage done to the community by effectively random acts of violence using a weapon, and to try to ensure that those who commit such offences are appropriately punished and to try, so far as is practicable, to let others in the community know the retribution that will be placed upon them should they seek to offend in a similar manner. All matters I can and must take into account.
I also have to take into account the circumstances of the offender himself. He gave evidence today and I am prepared to accept his evidence. He spoke to a psychologist, Ms Godbee, who set out his background, to which I will soon refer. Importantly, he told me that he did not seek in any way to excuse his actions. He told me that he regrets them, not just because of the harm he has caused to himself. He said he is sickened by what he did. He tells me that such violence is not in his nature and, given all the material before me, I am prepared to accept that.
He says he acted, in picking up something from the ground, out of fear, but also concedes his state of intoxication and it is clear that he was not thinking clearly or rationally because, as Ms Parkes, who appears for him, indicates in her submissions, there was no rational reason for him to do what he did.
He told me of the impact of COVID-19 on him personally and through lockdowns while in custody. He told me that he is in the middle of what will eventually be his hundredth day of lockdowns since he first went into custody. He tells me being locked in a cell for many days on end is not good for his mental health. It would not be good for anyone, but he has some underlying problems to which I will refer. He says that the COVID lockdowns have increased his depression.
It is clear from his evidence, and other evidence I have heard, that the pandemic has significantly impeded provision of drug and alcohol programmes, and medical and psychological services to prisoners who desperately need them. He has, despite those constraints, taken up opportunities to do a TAFE certificate and to seek and gain gaol employment. However, he still waiting to see a health professional. He is on a waiting list. He is on another waiting list so that he can engage in his much needed drug and alcohol treatment. He has solid plans for his future, but first he must serve a sentence that he richly deserves.
Ms Godbee, a respected psychologist, sets out his family history. He was born in 1997. He has had the support of his mother all his life and she is here today. His father was absent for much of his life; although he has, as an adult, reconnected with him. His mother did not have much money. He was exposed to alcohol use but that applies to many families. He has always been safe and loved at home. He reports one matter of sexual abuse when he was young but gave no details. He was bullied at school, and he struggled at school. Since his late teens he has had serious anxiety issues. Having a job helped, but he was not able to keep his job.
He took up the use of alcohol and cannabis as a teen and then benzodiazepines and it would appear at the time of this offence, he was abusing the drug, methylamphetamine. He told Ms Godbee that at the relevant time he was not in "a good head space."
Ms Godbee notes that some of the symptoms he displayed are those commonly associated with post-traumatic stress disorder but, given the limited history about trauma incidents, she cannot postulate further. She does say his responses are common following trauma. She believes he suffers from a general anxiety disorder and OCD, for which he needs cognitive behaviour therapy. In her opinion, his use of drugs was to blunt the impact of that general anxiety disorder.
He is a young man. He had an underlying untreated medical illness for which he still needs assistance. In gaol he will be and will remain vulnerable because of his age and his underlying mental conditions. There are matters which go to reduce his moral culpability in the material before me, which was affirmed in evidence. There was a time when prisoners were locked in cells repeatedly, but they would have remissions granted, reducing their sentence. No such law applies now. I do take into account the hardship in custody because of the pandemic.
He has a plan for his future. He has taken what steps he can to implement those plans and there has been, I accept, a sincere acceptance of responsibility and apology.
The Court recognises that immaturity, some social disadvantage and trauma, particularly as a child, can precede the commission of offences and must be taken into account. That, and drug use, often taken to deal with underlying mental conditions, can explain, but not excuse, the recourse to violence.
The law also recognises the potential for cognitive and emotional and psychological immaturity of young people can contribute to breaches of the law and as they get older and more emotionally mature, impulse control can develop, but they may not development until their mid-20s: Clarke-Jeffries v R [2019] NSWCCA 56.
The matters revealed in the evidence before me, which includes a Sentencing Assessment Report (which confirms much of the background material referred to by Ms Godbee), indicates he has a low-risk rating, and reduced moral culpability as distinct from his legal responsibility for an objectively serious offence. Those matters help reduce the punishment that might otherwise be required by this serious offending the circumstances, reducing the necessity to denounce what he did. With that said, what he did was particularly serious, as is reflected in the maximum penalty and the standard non-parole period, and content must be given to that standard non-parole period.
A sentence should, as far as possible, operate not just to punish but also to protect the community from further offending by this offender and others. The removal of a person by gaoling them can achieve only short-term protection.
Boenesch must be removed to the community, but the protection of the community is always helped by the successful rehabilitation of offenders. This aspect of sentencing should not be forgotten, and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: Blackman and Walters v R [2001] NSWCCA 121.
If a sentence can assist in turning an offender away from a life of crime, the community is protected. The longer a person spends in custody, particularly a young, immature and developing person, like Boenesch, the greater the risk that they will form associations with and habits from the sort of people who end up in gaol. Protection of the community in this case would be enhanced by an extensive period of supervision on parole; justifying a finding of special circumstances.
I note that Boenesch had no criminal record at the time, but he had committed an offence the day before, consistent with his drug-affected state of mind at the time.
If the larceny matter had occurred independently of the stabbing, the s 5 threshold would not have been crossed. However, he took the phone after he knew he had stabbed his victim, requiring a custodial penalty be imposed, but it was part of the course of conduct, requiring only modest accumulation.
If he had entered his plea of guilty earlier, a more significant reduction would have been given, as is obvious, but only 5% for the utilitarian value of his late plea can be given for the principal matter. I have taken care not to erode the greater benefit of 25 % that had to be given for the larceny matter.
[2]
Orders
In relation to both matters, I record convictions.
For the wound person with intent to cause grievous bodily harm, as it carries a standard non-parole period, there I indicate a sentence of four years and nine months with a non-parole period of two years seven months, consistent with an approximately 55% ratio.
For the larceny, I indicate a sentence of nine months' imprisonment.
There will be an aggregate sentence in this matter of four years and ten months imprisonment. That sentence will commence on 13 February 2021. There will be a non-parole period of two years and seven (sic) months, which means you will be eligible for release to parole on 12 October 2023. The balance of term of two years and one (sic) month (sic) will commence on 13 October 2023 and expire on 12 November 2025 (sic).
[3]
Correction
On reviewing the judgement for publication, I noted slips in how the sentence was pronounced and recorded. The sentence as pronounced in court was four years ten months with a non-parole period of two years and seven months but as indicted in the reasons for judgment my intention was to accumulate by 1 month for the larceny matter (the indicated sentence for the wound being 4 years 9 months and the non-parole period 2 years 7 months), making the intended non-parole period 2 year 8 months, consistent with the parole eligibility date of 12 October 2023 pronounced in court and set out in the formal order. The formal orders of the court, as entered, did not however reflect what was said or intended.
Accordingly, the parties were advised that a sentence correction was to be made on the Court's initiative: s43 Crimes (Sentencing Procedure) Act 1999. Both the DPP and the defence advised they did not wish the matter to be relisted and did not wish to be heard. The record was corrected on 7 February 2023.
[4]
Corrected sentence
For the wound person with intent to cause grievous bodily harm, as it carries a standard non-parole period, there I indicate a sentence of four years and nine months with a non-parole period of two years and seven months, consistent with an approximately 55% ratio.
For the larceny, I indicate a sentence of nine months imprisonment.
There will be an aggregate sentence in this matter of four years and ten months imprisonment. That sentence will commence on 13 February 2021. There will be a non-parole period of two years and eight months, eligible for release to parole on 12 October 2023. The balance of term of two years and two months will commence on 13 October 2023 and expire on 12 December 2025.
[5]
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Decision last updated: 08 February 2023