R v Boxx

Supreme Court of NSW|2009-04-20|Before: Studdert AJ

HEARING DATE(S) : 5 February - 13 March; 20 April 2009

DECISION : Sentenced to imprisonment for a non-parole period of 7 years 6 months commencing on 29 February 2008 and expiring on 28 August 2015. Balance of the term of the sentence to commence immediately thereafter for a further 2 years and 6 months to expire on 28 February 2018. The first date upon which the offender is to be eligible to be released on parole is 28 August 2015.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2),(3), 44(2) Crimes Act 1914, s 24

Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 R v Blacklidge (NSWCCA, unreported, 12 December 1995) R v Bollen (1998) 99 A Crim R 510 R v Charman [2007] NSWSC 1177 CASES CITED : R v Dodd (1991) 57 A Crim R 349 R v Hill (1981) 3 A Crim R 397 R v Horan [2008] NSWSC 990 R v Previtera (1997) 94 A Crim R 76 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270

COUNSEL : Peter Barnett SC (Crown) Mitchell Paish (Accused)

SOLICITORS : Director of Public Prosecutions (NSW) (Crown) Australian Criminal Law Specialists Pty Limited (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

REMARKS ON SENTENCE 1 HIS HONOUR: The offender Zachary Aidan Boxx stood trial charged with the murder of Michael Healy. The jury found the offender not guilty of murder but guilty of manslaughter and it is now my task to sentence the offender for the crime of manslaughter. 2 The offender gave evidence before the jury as to his movements on the night the deceased met his death. In summary, the offender denied going to the deceased's home, and he denied being involved in the crime in any way. He gave a version of his movements on the night in question which the jury obviously rejected. In my opinion the jury was correct to do so because the offender's account was not a reliable one. His evidence was to the effect that he spent most of the night in question driving around looking for a co-offender, Zethan Horan, in Orange, in Blayney, and then back in Orange, before setting off for Bathurst and finally for Mudgee. 3 I remind myself for the purposes of my present task that I must be satisfied beyond reasonable doubt as to matters adverse to the offender, and further that if there are circumstances to be taken into account in favour of the offender, it suffices that these circumstances be proved on the balance of probabilities. See The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1. The review of the facts which follows reflects findings made in accordance with the principles stated. 4 The victim of the crime, Michael Healy, lived alone in a town house in Wisteria Place, Orange. Evidence which emerged at the trial established that the offender joined in a criminal enterprise the purpose of which was to enter the victim's home and to take from it a safe believed to be in the main bedroom and to contain a large sum of money. It was anticipated that there was cash in an amount of at least $20,000 and possibly as much as $60,000 inside the safe. There were also thought to be in the safe certain documents relevant to a fraud alleged to have been committed against the deceased. 5 On the night of 11 March 2006 the offender went with Nathaniel Charman, Zethan Horan and Bryony Hatch to the vicinity of Wisteria Place. Charman and Hatch remained in the car but Horan and the offender left it and approached the home of the deceased. They were equipped with a heavy torch the property of Horan. The two men gained access to the deceased's premises by climbing over a side gate into the yard, and then entering the house through a sliding door at the rear of the premises. 6 Evidence established that Horan and the offender approached the deceased's bedroom at the front of the house and entered it. Unfortunately the deceased was in the bedroom and in bed at the time of the illegal entry. A number of blows were inflicted on him with the torch. The deceased sustained injuries which led to his death. 7 Horan had some contact by mobile phone with Hatch in the time in which he was at the premises and phone records indicate that the crime was committed sometime shortly after midnight. 8 The body of the deceased was discovered by police on the afternoon of 14 March 2006 after police had been contacted by neighbours, concerned that they had not seen the deceased since the previous Saturday. The body of the deceased was found lying on the floor of his bedroom. It was evident that the deceased had suffered a very substantial amount of blood loss and his bed was heavily blood stained, there was blood spatter on the bed head and on the walls, and other blood staining it is unnecessary here to record. 9 Dr Ellis who conducted the post mortem examination found three significant lacerations to the head and there were underlying fractures. There was a long fracture line almost in the middle running from the front of the skull towards the top of the head, there was a honeycomb network of intercepting fractures to the left of that and the base of the skull was also fractured. Dr Ellis considered that the harm described could have been caused by blows occasioned with the torch referred to earlier. It was the opinion of Dr Ellis that considerable force must have been inflicted particularly in relation to the fracture line first described. 10 The case advanced against the offender at his trial was put in a number of ways:

1 That it was the offender who attacked the deceased;

2 In the alternative that it was Horan who attacked the deceased pursuant to a joint criminal enterprise to which the offender was a party; and that the offender was guilty of murder on this alternative approach because he perceived the possibility that Horan may have intended to kill or to cause grievous bodily harm using the torch as a weapon;

3 On the basis of constructive murder. 11 Of course it follows from the verdict returned by the jury that the Crown failed to prove the case presented against the offender on any one of the above bases. 12 Had the jury been satisfied beyond reasonable doubt that it was the offender who inflicted the blows with the torch then a verdict of guilty of murder would have been almost inevitable. It seems to me the conclusion was inescapable that whoever it was who used the torch to fracture the deceased's skull in the way in which it was fractured must have intended at least to have caused grievous bodily harm. 13 It is proper to conclude therefore that the Crown failed to persuade the jury beyond reasonable doubt that the offender inflicted the blows. Likewise the Crown failed to persuade the jury beyond reasonable doubt at the earlier trial of Horan that Horan inflicted those blows. 14 The offender is to be sentenced for the crime of manslaughter by unlawful and dangerous act or by unlawful and dangerous acts which caused death and which were committed as incidental to the carrying out of the joint criminal enterprise earlier identified. The evidence established that there was discussion to which Horan and the offender were parties, as to what was to happen if the deceased was encountered in his home, and it was contemplated that force may be used against him, and that he may be punched or harmed in some way. 15 Consideration of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 is enlivened. The offence was one committed in company as part of a joint criminal enterprise, and the use of force against the victim was contemplated. The victim was vulnerable, being alone and in bed, and he did suffer from some mild degree of mental handicap. Viewed objectively, I consider that the features of this crime for which the offender is to be sentenced are to be regarded as indeed serious. 16 A victim impact statement made by the deceased's sister, Ms Bernadette Healey, was read to the Court by Mr McPhillamy. The Court readily appreciates the distress and grief experienced and as recorded in that statement, but I am mindful of the principles settled in R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510, and I must heed them. 17 I turn to address the subjective features of this case. 18 The offender was born on 23 October 1986. He was 19 years of age at the time this crime was committed. He was one of 13 siblings with 8 older siblings. The Pre Sentence Report reveals that the offender has had strong family support from his parents and his 11 surviving siblings and that this support has continued since the time that the offender was arrested. His youngest sister died in 2005. There was a family gathering to recognise the first anniversary of this sister's death earlier on the same day that the offender participated in this crime, and the offender attended it. I am satisfied that the offender grieved for his deceased sister, and was continuing to do so on the first anniversary. 19 The offender's schooling was unusual in that he was educated at home but he proceeded to study horticultural science at the University at Orange in 2005. It was here that he met Zethan Horan. In November 2005 the offender took up full time employment at the Wellington Botanical Gardens. He did not resume his University studies in 2006. After a probation period of 6 months at the Botanical Gardens the offender's employment was not extended but he next found a position in insurance sales. This work he pursued only for a matter of weeks. In July 2008 he obtained work at a vineyard at Mudgee. This position the offender occupied until just before his trial began in February this year. His employer at the vineyard provided a favourable reference, tendered as part of Exhibit 2 in the proceedings on sentence. Other references favourable to the offender were included in Exhibit 2. 20 The offender had no previous convictions at the time of the commission of this offence but on 7 August 2006 he was sentenced in the Local Court to a term of imprisonment of 3 months commencing on 18 July 2006 for the supply of a prohibited drug. According to the facts sheet (Exhibit B) a police search of his vehicle on 4 July 2006 revealed 9 small parcels of cannabis each weighing 1.3 grams. The total weight of the cannabis found was 18.3 grams. The offender said each parcel had a sale value of $25. 21 The offender was arrested for the offence leading to his conviction in this Court on 18 July 2006. Sentence for the drug offence was backdated to 18 July 2006 and expired on 17 October 2006. There was a grant of bail on 11 September 2007 but the offender returned to custody on 31 October 2007. He was then granted bail again on 20 December 2007 and remained at liberty until the jury's verdict, returning to custody on 13 March 2009. Counsel have agreed that the total time spent in custody, excluding the term served for the drug offence, is 379 days. I propose to give credit for this period spent in custody and referable solely to the crime for which he is now to be sentenced. The sentence I impose should therefore commence on 29 February 2008 (see Exhibit C as to this). Mr Paish did submit that the sentence imposed in the Local Court for the drug offence was excessive and that I should recognise this with some further backdating of the sentence I am about to impose. I am not persuaded by this submission. I note from Exhibit A that an appeal against severity was lodged but the conviction was confirmed in the District Court. It seems to me I should treat the sentence which was imposed in the Local Court, and which has not been disturbed, as being a sentence of appropriate duration. 22 The author of the Pre Sentence Report dated 20 April 2009 (Exhibit D) wrote in part:

"Mr Boxx is a 22 year old single male, purportedly from a pro-social and conventionally focused family of origin, with the values of employment, independence and self responsibility being proclaimed as the family's focus by the offender's mother. Mr Boxx conveyed benefiting from the experiences and support of all twelve siblings and his parents both during his life to date and this continuance during his various incarceration periods. Mr Boxx maintained a stance of innocence in relation to this offence, identifying the circumstances of his alleged participation as acts of vengeance by the co-accused due to their desire for lesser sentences and anger with him over fights that occurred in their relationship between February and July 2006. This service is unable to provide a surmise of the offender's contrition, remorse or analysis of contributing factors to this offence due to the offender's proclamations of innocence. This stance limits any benefits to be gained by the offender in completing supervision or offence targeted programs." 23 A psychological appraisal was conducted by Ms Duffy and her Report dated 16 April 2009 was introduced into evidence as Exhibit 1. Ms Duffy following her assessment of the offender on 8 April 2009 wrote in part:

"Zachary's personality profile reflects his dependence and reliance on others for support and his tendency to be subservient, self effacing and indeed often the victim in his interactions with others. It is considered that this characteristic primarily made him a target and that consequently he was more vulnerable to the influence of his friends. Zachary's profile does not reflect an anti-social or aggressive component to his personality. At this stage he adheres to his plea of not guilty for the crime that he has been convicted, so issue of remorse could not be canvassed. He is currently held in protective custody and will probably continue to be so for the remainder of his sentence. Zachary has coped with this prison environment by trying to make friendships and helping other prisoners by writing letters and discussing their legal issues with them. He is also undertaking further studies and he keeps as fit as he can through exercise. He may require some supportive counselling with the prison psychologist. He may also have to modify his subservient behaviour characteristics and identify specific self defeating behaviours. Assertiveness training and the development of skills to prevent exploitation might be helpful. Further examination of his relationships can occur within individual counselling as well as group sessions." 24 Ms Duffy also referred to the offender assuming "a passive and submissive role", but Ms Duffy presumably did not have access to the intercepted telephone conversations to which the offender was a party and which were introduced at the offender's trial. The offender was party to telephone conversations with a female, Tammy, (Exhibits G1-G3) in which he spoke aggressively about what he wanted to do to Nathaniel Charman with whom he had fallen out by July 2007, at which time the intercepted phone calls took place. Nevertheless I accept that Ms Duffy's Report reflects her views at the time her Report was written. Her Report and the Pre Sentence Report I take into account in my sentencing task although I do not find ultimately that I derive much assistance from either of these Reports. That does not reflect adversely on the author of either Report. 25 I have regard to s 21A(3) of the Crimes (Sentencing Procedure) Act, and I have referred earlier to the offender's good character prior to the commission of this crime. The offender is not to be punished, of course, for denying any involvement in the circumstances of the death of the deceased, but it is to be noted that the offender has continued to deny his guilt to the author of the Pre Sentence Report and to Ms Duffy, and this attitude and the lack of remorse and contrition must impede his prospects of rehabilitation. However having regard to the strong family support the offender has, there is some prospect of rehabilitation which I can only assess at best as being fair. 26 The Crown submitted that guidance is to be found in relation to the sentence to be imposed in this case in the sentences already imposed on the co-offenders Charman and Horan. Each of those offenders was sentenced to a total sentence of 6 years with a non-parole period of 4 years. These two offenders each received the benefit of a 40% discount because of willingness to assist in giving evidence against other offenders, including Zachary Aidan Boxx. In Charman's case the discount he received also reflected the utility value of his plea offered at the first available opportunity, and in Horan's case the discount he received reflected the utility value of the plea he offered at the first available opportunity, even though it was not accepted by the Crown. 27 In his sentencing remarks in R v Charman [2007] NSWSC 1177 Hulme J said (at paras [28]-[29]):

"[28] It can fairly be said on the prisoner's behalf that he did not strike the fatal blows and that what occurred - at least three blows, one or more of which was sufficient to result in blood spatter on the bed-head and adjacent wall - is not what would commonly be expected to flow from an intention merely to knock someone out. However, blows to the head designed to render a victim unconscious are not something capable of precise measurement in advance and do have the clear potential to do more damage than intended. It is hard to believe that proposition is not one of which every adult would be aware. The prisoner joined in an enterprise with those risks and left the others, over whom he then lost all relevant control, to carry out the task. [29] While at liberty on condition he be of good behaviour, he chose to participate in the invasion of the deceased's home and the intention to render by violence the deceased unconscious. Although no doubt this was not the prisoner's intention, in consequence the deceased died. Without intending to be melodramatic, the deceased lost everything. In my view it would not be appropriate to take as a starting point anything less than ten years. That is but 40% of the statutory maximum. I am not persuaded however that it should be more." 28 In Horan's case [2008] NSWSC 990, I proceeded to impose sentence upon the basis he was also to be sentenced for the crime of manslaughter by unlawful and dangerous act and remarked (at paras [11] and [13]:

"[13] … So it is that the offender Horan is to be sentenced for the crime of manslaughter by unlawful and dangerous act or unlawful and dangerous acts, the acts committed … incidental to the carrying out of the criminal enterprise to rob or to steal from the deceased. It emerged in evidence that the offender contemplated that the deceased might be harmed if he was found to be at home and that he attempted to stop efforts to remove the safe, the money and the documents. 12 ….

13 Whilst the offender did not expect the torch to be used to attack the deceased about his head, some force was contemplated by the offender as a possible happening in the course of the criminal enterprise and the deceased was vulnerable, being alone in his home and in bed. In addition, the deceased suffered from some mild degree of mental handicap. The offence was committed in the setting of a planned criminal activity and I am mindful of these matters when addressing s 21A(2) of the Crimes (Sentencing Procedure) Act . Overall, I consider that the objective features of the crime for which the offender is now to be sentenced to be indeed serious." 29 Mr Paish submitted that the starting point in the case of this offender should be lower than in the cases of Charman and Horan. He submitted that this offender only became involved in the enterprise some hours before the crime was committed, whereas the other two had planned the commission of the crime over a period, and had gone to the victim's home posing as security guards in what amounted to a reconnaissance mission. 30 I accept that this offender joined the enterprise later than the other two men but I find on the evidence that it was at his insistence that the victim's home was invaded on the night he died, rather than on a Thursday night when it was thought that the deceased's habit was to visit a local club, and would thus absent himself from his home. I have in mind evidence given by Tamara Garvin (Nathaniel Charman's fiancé at the time). Ms Garvin's evidence was that she heard Horan saying the job "was to be done on Thursday because that's when Healey was going to be at the club". Ms Garvin said the offender's response was "No, it has to be done tonight because I wont be here on Thursday" (T 138). 31 Mr Horan gave evidence to the like effect, that he, the offender, was not able to do the job on a Thursday night (when it was thought the deceased would be at the club) and that they "should do it" that Saturday night (T 638). 32 Hence I find having considered the evidence in point that the offender influenced the decision to carry out the crime on the night it was committed. 33 Having reflected on the competing submissions it does not seem to me that this offender's criminality ought to be regarded as any less than that of Horan or that of Charman. In particular it seems to me were it not for the discount attracted in Horan's case it would have been appropriate for both these offenders to have received the same sentences. The same conclusion extends to the comparison with the sentence imposed on Charman. 34 In reaching this conclusion I do not overlook the subjective features in these cases to which comparison is invited. Mr Paish pointed to the scheduled firearms offences in the case of Horan, absent in the present offender's case. He pointed also to Charman's participation being at a time when he was on provisional liberty. However having considered all the subjective features in Horan's case, in Charman's case, and in the present case as well as the objective facts in each case, I am of the opinion that the starting point in this case should be the same as in the case of Horan and in the case of Charman. 35 Mr Paish also submitted that an overall sentence of 10 years imprisonment was too severe for the criminality of these 3 offenders that is Charman, Horan and Boxx. The maximum penalty provided for the crime of manslaughter is of course 25 years imprisonment (s 24 of the Crimes Act 1914). The circumstances in which this crime of manslaughter can be committed vary so widely that it is not possible to fix a narrow sentence range. See the much cited dicta in R v Blacklidge (NSWCCA, unreported, 12 December 1995) where it was said (at [39]):

"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402)." 36 In his sentencing of Charman Hulme J reviewed sentences imposed in other cases, before concluding it would be inappropriate in Charman's case to take as a starting point a lesser term than ten years. When sentencing Horan, I came to a like conclusion. Having considered the thorough submissions of Mr Paish overnight, I am not persuaded that a lesser total sentence than 10 years would be appropriate here. Due weight must be given to the objective gravity of the crime, and I remarked earlier that I consider the objective circumstances in this case to be serious indeed. I must heed all the various purposes and objectives of sentencing, as conveniently expressed in s 3A of the Crimes (Sentencing Procedure) Act. 37 Mr Paish submitted that I should find special circumstances for the purpose of s 44(2) of the Crimes (Sentencing Procedure) Act. He submitted such a finding was appropriate because the sentence to be imposed was to be the offender's first long term of imprisonment, giving rise to the existence of the need for an extended period of supervision after he is released from custody. 38 I do not accept the submission of Mr Paish. The balance of the term I am about to set affords adequate opportunity to address the need for supervision after the offender's release, particularly having regard to the strong parental and family support I am satisfied the offender will receive following his release. 39 I do not find special circumstances in this case. 40 I now pass sentence as follows: 41 Zachary Aidan Boxx I sentence you to imprisonment with a non-parole period of 7 years 6 months commencing on 29 February 2008 and expiring on 28 August 2015. I set a balance of the term of the sentence commencing immediately thereafter, at a further 2 years and 6 months to expire on 28 February 2018. The first date upon which you are to be eligible for release on parole is 28 August 2015.

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