R v Boney [2025] NSWDC 397 | Case summary | Zoe

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R v Boney [2025] NSWDC 397 | Case summary | Zoe

Turning then to objective seriousness. The potential seriousness of the offence is marked by the maximum penalty and the standard non-parole period. While the Court of Criminal Appeal of this State, in its guideline decision in R v Ponfield (1999) 48 NSWLR 327, referred to various factors which are relevant to the objective seriousness of a break, enter and steal offence, it was recently said in MacBlane v R [2025] NSWCCA 52 that the Ponfield decision is now of limited utility as it has largely been overtaken by statute.
Offences of the kind before the Court must, obviously, be treated seriously, especially given the invasion that such an offence involves. The property broken into in this particular case was a commercial premises, which reduces the sense of invasion that would have arisen if the property had been a private home. The fact that there was a person or persons inside, which the offender knew, means that there was a risk of confrontation, with the shock and fear that that would have involved for the legitimate occupiers of the premises. This does not increase the objective seriousness of the offence however, because knowledge of there being a person or persons inside is an element of the offence.
The offence involved two incursions into the property, although, admittedly, only a few seconds apart, and the entire episode spanned a period of probably around a minute. The offence committed inside the premises was larceny, which is at the lowest end of serious indictable offences. The property taken included two iPhones, which were obviously of considerable value, and also a backpack which contained two debit cards. While Ms Barnier later recovered the backpack, she did not recover the phones or the two key cards.
There was some degree of planning involved in selecting the premises, but I regard the planning to be minimal, and the offending was essentially opportunistic and amateurish, with the offender allowing himself to be recorded on CCTV. The offence did not involve any ransacking, vandalism or damage to the premises.
Having regard to these various matters, in my view, the objective seriousness lies below the mid-range and towards but not in the lower range of objective seriousness.
I am satisfied that the offender was on bail at the time of the commission of the offence. This does not increase the objective seriousness of the offence of course, but it is nonetheless an aggravating matter generally, in the overall sentencing exercise.

Turning then to subjective matters. The offender is now aged 36, and he has a fairly extensive criminal history which includes offences of a similar nature, and he has previously been sentenced to several terms of imprisonment.
It was submitted by the Crown that the offender’s history of previous convictions is an aggravating factor on sentence in that it indicates a “continuing attitude of disobedience to the law”, such that retribution, deterrence and the protection of the community should be given greater weight. I have considered this submission. While it does have some merit, I am not prepared to reach the conclusion that this aggravating feature is made out beyond reasonable doubt, especially given my conclusions set out below that the offender’s moral culpability is reduced in this case, to some degree, by reason of his background and his mental health and cognitive issues. Suffice to say that the offender’s criminal history, however, does not assist him in any claims to leniency.
The offender’s subjective case has been placed before the Court by means of the report of Dr Richard Furst, dated 10 March 2025, as well as some documentation relating to the National Disability Insurance Scheme.
Dr Furst’s report notes that the offender was born in Dubbo and raised mainly by his grandmother. He attended school until year 12 but had various learning problems and behavioural issues and was reportedly treated with Ritalin for Attention Deficit Hyperactivity Disorder when in primary school. He reported to the psychiatrist that he was sexually abused between the ages of about 11 and 12 years and claimed that this took place over a period of two to three years. While there is no evidence on oath about this claim, and no other evidence to support the claim, in the absence of challenge by the Crown, I will accept it as part of his history.
Submissions on behalf of the offender were made to the effect that he has a number of diagnosed mental health and cognitive issues. The evidence about this, however, is relatively limited. There is the report of Dr Furst and there are some documents relating to the offender’s approval for NDIS support. The report of Dr Furst is based, essentially, on the offender’s self-report. It notes, in part, that the offender reported an apparent head injury when he fell at Bathurst Correctional Centre, and that he has a civil claim ongoing in relation to this, and that he told the doctor that he had been “apparently” assessed as having ADHD, an intellectual disability and schizophrenia.
Dr Furst’s report notes that the offender was apparently admitted to a mental health pod at the MRRC in 2011 for a period of about 11 months. Dr Furst goes on to note the offender’s self-report of his symptoms at that time and the doctor concludes that those symptoms, if they lasted for some months and were debilitating, would be “suggestive of schizophrenia”. He goes on to note, however, that the offender has no history of admissions to psychiatric units in the community and no recent treatment with antipsychotic medication.
The doctor notes the offender’s problems with addiction issues from about age 13, which apparently continued up until his most recent entry into custody. He noted further, on p 4 of his report, that the offender did not present as being paranoid and had no signs of thought disorder and was not hallucinating at the time of the assessment in March 2025 and that there were no other indications of significant mood disturbance either. Dr Furst was specifically asked whether or not the offender had available to him a defence of mental health or cognitive impairment, and specifically answered “no” and said, “There are no indications that Mr Boney was unaware of his alleged actions or was unaware of the wrongfulness of his alleged actions.”
Dr Furst goes on to state that the offender’s primary clinical problems related to the presence of a personality disorder with antisocial features, which commenced with childhood conduct disorder and also his drug addiction. He notes in his report, based on the offender’s reported history, that there was or is a possibility of schizophrenic illness. However, he does not make any diagnosis to that effect, noting that medical records from Justice Health or other sources would be required in order to confirm a diagnosis of psychosis.
The doctor refers, again, in his report to the offender’s self-report of suffering a head injury at Bathurst Correctional Centre some years ago and notes that this raises the possibility of an acquired brain injury. However, again, he makes no diagnosis of any such brain injury. Dr Furst notes that the offender “may” also have a cognitive impairment, and that if such impairment was present, then that most likely would have certain effects in terms of his judgment, consequential thinking and disinhibition. However, he makes no diagnosis about any such cognitive impairment.
It was submitted on behalf of the offender that the report of Dr Furst supports the conclusion that he was “not fully aware of the consequences of his actions because of his disability”. However, I do not accept this submission, especially given Dr Furst’s conclusion on p 5 that there was no indication that the offender was unaware of his alleged actions or was unaware of the wrongfulness of his alleged actions. It was also submitted that “Dr Furst describes a low intellectual functioning, acquired brain injury, schizophrenia with episodes of psychosis”. However, as I have earlier set out, Dr Furst’s report contains no clear diagnosis of any of those conditions.
Dr Furst refers to the “possibility” of a schizophrenic illness but that Justice Health records would be required to confirm it. It is also significant that the doctor notes that there has been no recent treatment with antipsychotic medication. Dr Furst also refers to the “possibility” of an acquired brain injury due to a self-reported fall while in custody which “if present” would present a cognitive impairment. As to low intellectual functioning, Dr Furst noted this also as a possibility, subject to what might be recorded in any psychometric testing or school records, which, evidently, were not available to him.
In summary, the report of Dr Furst does not support the submission that the offender suffers “low intellectual functioning, acquired brain injury, schizophrenia with episodes of psychosis”. What Dr Furst does say, in fairly clear terms, is that the offender’s primary clinical problems related to the presence of a personality disorder with antisocial features which commenced with childhood conduct disorder and his drug addiction.
There is also however, a letter from “Culture Connex” dated today, and a letter dated 30 August 2024 from the National Disability Insurance Agency. The letter from Culture Connex, dated today, says that the offender has a diagnosis of mild intellectual disability. It notes that the offender’s goals, through that organisation and his NDIS approval, are to find employment and to reconnect socially with his family and his culture. The letter notes that the offender has a daughter and mother living in Wyong and that he plans to live there on his release.
I accept, based on this material, that the offender has a mild intellectual disability, and I accept, notwithstanding the inconclusive evidence, that he has suffered from a number of mental health problems in the past, and continues to experience personality disorder with antisocial features and a long-standing drug addiction which appears to be in remission while he is in custody. These circumstances engage the principles discussed in Commonwealth DPP v De La Rosa [2010] NSWCCA 194, where McClellan CJ at CL summarised the principles that apply when an offender is suffering from a mental illness. Those were summarised in the following manner and involve five primary points about which I will make a number of comments and findings.
Firstly, where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced, with a reduction in the sentence. In this regard, while I do not conclude that the offender’s mental and cognitive issues contributed directly to the commission of the offence, I do accept that this made him more prone to making poor decisions and to becoming engaged in drug use, leading to the need to acquire property to fuel his drug addiction.
The second principle summarised in De La Rosa is that a person’s mental illness may have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed. In this regard, I accept that the importance of general deterrence is reduced in this case.
The third point made in De La Rosa is that a person’s mental illness may mean that a custodial sentence may weigh more heavily on them. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced. With respect to this point, I note that there is no evidence suggesting that the offender’s experience of custody has been or will be more difficult by reason of his mental health and cognitive issues. In fact, his custodial history suggests that he may be becoming institutionalised, such that custody is his most familiar environment.
The fourth principle discussed in De La Rosa is that mental health issues may reduce or eliminate the significance of specific deterrence. While I accept that the importance of specific deterrence is reduced to some degree in this case, it still remains important, because of my conclusion that the offender well knew what he was doing and acted very deliberately in first checking out the back of the premises before ultimately entering and stealing any valuables he could find.
The fifth principle discussed in De La Rosa is that it may be that, because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Furthermore, that where a person has been diagnosed with an antisocial personality disorder, there may be a particular need to give consideration to the protection of the public. I do not in this case suggest that the offender has been diagnosed with antisocial personality disorder as such. However, Dr Furst’s conclusion is that one of the offender’s primary clinical problems is the presence of a personality disorder with antisocial features. In my view, therefore, the aspect of protection of the community is of some importance in this case, especially given my conclusion, which I will set out in a few moments, about the offender’s future risk of re offending.
I accept that the offender’s compromised intellectual capacity and his mental health problems reduce his moral culpability to a material degree and that this reduces the importance of general deterrence to some extent. Also, it reduces the importance of personal deterrence.
However, the fact that he has these problems also means that community protection must be given significant weight because the offender’s problems mean that he is a greater risk to the community.
I also accept that the offender’s childhood background involved instability, which I infer from the fact that he was not raised by his natural parents but mostly by his grandmother. This, plus the undisputed fact that he was sexually abused as a youth, enlivens the principles discussed in Bugmy v The Queen (2013) 249 CLR 571. This aspect of the case also operates to reduce the offender’s moral culpability, because such a background makes him more prone to make unwise choices, such as to engage with drug use and to engage in criminal actions to support his drug use. This is another factor that reduces the importance of general deterrence and, to some degree, personal deterrence. Nonetheless, it remains necessary for me to balance these aspects against the importance of community protection, given my conclusion about the offender’s future risk.

Coming to my ultimate determination. i have had regard to the various purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. In my view, they all are of relevance, subject to my findings that I have already set out that the importance of general deterrence is reduced in this case and the importance of personal deterrence is reduced slightly in this case. I am satisfied for the purposes of s 5 of that Act that no penalty other than imprisonment is appropriate.
I have given consideration to the date upon which the sentence ought to commence. The offender was arrested on this offence on 4 January 2024, but at that time, he was in custody for other reasons, having entered custody on 5 December 2023. The Crown, somewhat generously, suggested that the commencement date for the sentence I am to impose might be commenced sometime after 5 December 2023, whereas counsel for the offender suggested that the sentence ought to be backdated to 5 December 2023.
In my view, backdating to 5 December 2023 would be inappropriate and would ignore the fact that the offender was not even arrested and charged with his offence until 4 January 2024, and that from 5 December 2023 to 10 May 2024, he was serving the balance of parole for an earlier sentence. His time in custody that is solely referable to the offence now before the Court is, therefore, from 10 May 2024 to today. Even that observation might be regarded as somewhat generous, given that the offender, to my knowledge, also has been bail refused on other charges, a trial of which is yet to occur.
Having regard to totality principles, I intend, nonetheless, to allow the offender the benefit of backdating approximately half of the period from 5 December 2023 to 10 May 2024, which represents the balance of parole. In other words, about half of the period of 157 days between those two dates. I will, in the offender’s favour, treat half of that period as being around 80 days.
The sentence, therefore, will commence on 20 February 2024.
Mr Boney, if you stand up, I will just announce the sentence. The offender is convicted. I impose a head sentence of three years, three months. I impose a non-parole period of two years, three months.
I have made a finding of special circumstances to adjust the ratio between those two terms slightly by risk of the risk of institutionalisation.
The sentence will commence on 20 February 2024. The head sentence will expire on 19 May 2027. The non-parole period will expire on 19 May 2026. You can have a seat, Mr Boney.
OFFENDER: Thank you.
HIS HONOUR: Mr Crown, Ms Doherty, anything to raise about any of that?
MEECHAN: Not from the Crown’s perspective.
DOHERTY: No, your Honour.
HIS HONOUR: Thank you. Court will adjourn.