R v Boyden

Agreed facts

1. In July 2020 David Boyden's stepbrother Jessie Cook was released to parole. Shortly after his stepbrother's release Boyden sold a 2003 VY Storm Holden Commodore utility to the first victim. The price was $2,500. Cook was present at the sale. A handwritten receipt was provided. The vehicle was unregistered and in need of repair. Victim 1 arranged with a friend (Victim 2), a motor mechanic, to do some repairs.
2. On the afternoon of 25 August 2020 Victim 1 and Victim 2 were at Victim 2's home in Dapto. That day Victim 1 started getting phone calls and messages from Cook offering to purchase the motor vehicle back for $1,000. Unsurprisingly Victim 1 declined the offer. A threat was made by Cook. He demanded the vehicle and said "You've got till midnight to accept it or we're taking it off you".
3. At 8.30pm that day the two victims were inside Victim 2's home. The Commodore was parked in the rear yard. They heard a vehicle arrive and Victim 2 walked out onto his driveway. He saw Boyden and Cook leaving their vehicle. Cook threw a bottle at him and then punched him, causing him to stumble. Cook made demands of him: "Where is Victim 1?" And "Where are the keys?" Victim 1 locked the screen door, but the two of them pulled and banged such that the screen door was ripped off. They entered the unit. Cook punched Victim 2 to the head. He was forced onto a bed and Cook held him down. At that point this offender, Boyden, struck Victim 2 with a butcher's clever. Victim 2 was struck on the left shin and on the left hand and arm causing him actual bodily harm.
4. Ms Knox who appears today for the Director of Public Prosecutions (DPP) accepts that this striking showed considerable restraint as the sharp edge of the cleaver was not used.
5. The two offenders demanded keys to the vehicle and they were eventually provided to them. Boyden and Cook, with Boyden driving, took the car. It contained some power tools and Victim 1's wallet and personal cards. It also appears Victim 2's personal cards and cash were taken, although no charges result from those actions.
6. Half an hour later the two men went to a service station and filled the car with petrol and drove away without making payment. They then drove the stolen utility to Victim 1's home in Keiraville. There they used a key located on the stolen keyring to access and drive away another car, a black Holden Commodore owned by a third victim. They had to spend a bit of time putting a battery in the vehicle to get it going.
7. Victim 1 eventually got his vehicle back after information was received by an associate of Cook's. The facts do not reveal what happened to the black Commodore. After a police investigation Boyden was arrested. He has been in custody ever since. On arrest he made statements that are inconsistent with the present agreed facts.
8. Those agreed facts use the term "wound." I am not sentencing Boyden for a wounding offence and to do so would offend the principles of The Queen v De Simoni (1981) 147 CLR 383. It is not the severity of the bodily harm that is the principal factor here, although often it can be, it is the invasion of the home, the indignity of being held down and assaulted by two men that make this offence particularly serious. The fact that there were two offenders is an element of the offence. That is something I have to take into account when I assess the objective circumstances of the offence. The fact that it occurred in Victim 2's home is a fact I take into account. That Boyden used a weapon is a matter I can take into account.
9. As the written submissions of the DPP properly set out, the attack on the victims would have been nothing short of terrifying, and it continued for a not insignificant period. Although not charged, property was destroyed and taken. As I said in the matter of Cook, to add insult to injury the purpose of attending the premises being the break and enter and assault was to obtain the keys for the motor vehicle that had been previously sold to the first victim; that aim was achieved and the vehicle was taken: R v Cook [2021] NSWDC 436. They also took the keys to another vehicle. They then drove to where that vehicle was and on the way helped themselves to a company's petrol.
10. Although one car was recovered, no one has told me what happened to the second vehicle. For most in the community who are lucky enough to own a home of their own, their motor vehicle is probably the most expensive possession they have. To take someone's motor vehicle deprives them of a considerable and valuable asset. To enforce what may here have been said to be a debt by violence offends the very basis of why we have the legal system. Grievances should not be settled in such a way. It is unclear what the offender's specific motivation was, but no excuse could justify what occurred.
11. The two offenders acted together. Cook took the lead, but he was followed by his stepbrother Boyden, and it was Boyden who used the weapon. While less than Cook's, I could not find that this offender's role objectively was significantly less than his stepbrother's.

Other relevant factors guidance

1. While every offence and every offender requires individualised treatment, the Court in the exercise of its undoubted discretion takes guidance from a number of sources. They include the maximum penalty prescribed, the decisions of other courts and of course the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes, and proper recognition of the harm done to the victims. I have to pay attention to the maximum penalties and the standard non-parole period, where applicable. I am required to give content to the standard non-parole period when it comes to synthesising an appropriate sentence.
2. Here there are five matters for sentence: 1. The most serious offence is aggravated break and enter and commit serious indictable offence of infliction of actual bodily harm, s 112(2) Crimes Act; maximum penalty 20 years, standard non-parole period five years. 2. There are two counts of steal motor vehicle, s 154F Crimes Act; maximum penalty ten years. 3. On a s 166 Criminal Procedure Act 1986 certificate are two further matters. Boyden was disqualified from driving, an offence pursuant to s 54(1)(a) of the Road Transport Act 2000. The taking of the petrol was an offence of dishonestly obtaining property by deception, s 192E(1)(a). Those two matters are generally dealt with in the Local Court.

Criminal record

1. Boyden's criminal record goes back to the Children's Court where Control Orders were imposed. Since 2014 he has been in and out of gaol for offences of driving while disqualified, stealing motor vehicles, destroying property, larceny, reckless wounding. The offender is not entitled to the leniency often given to first offenders. In fact, viewed objectively his record means greater weight has to be given to deterrence and community protection.
2. The offence was committed while he was on bail. Bail entails a promise to be of good behaviour and not commit further offending. He breached that promise. That aggravates the sentences that must be imposed.
3. Boyden was released to parole on 28 December 2019. Documents before me indicate his response to parole was unsatisfactory. He did not engage with Community Corrections or Alcohol and other Drug Service providers or a psychotherapist as directed. He committed other offences on 18 March 2021 in breach of his parole. This offence occurred on 25 August 2020.

Parole

1. He has been in custody since the 26th August 2020. Balance of parole was ordered to be served from 26 August to 13 December 2020. On 14 December 2020 he received a sentence of 15 months imprisonment at Liverpool Local Court for the 18 March 2020 offences. The parole period of that sentence commenced on 25 March 2021.
2. There must be some independent punishment for those matters. But I note the magistrate made a substantial finding of special circumstances. I have to impose a sentence for this matter taking into account a period in custody, his serving balance of parole and his serving the Local Court sentence, which was made concurrent with it. I have to fix ultimately an aggregate sentence that is both just and appropriate to the offences for sentence today, but also take into account those earlier matters.

Parity

1. I sentenced Cook to an aggregate sentence of three years and two months. His sentence had been reduced for an early plea of guilty and other matters indicating a starting point of about three and a half years. I indicated the following sentences: 1. For the assault which is not attributed to Mr Boyden, 11 months. 2. For each of the steal motor vehicles, nine months, for driving, because he drove during a disqualification period, three months, and for obtaining property by deception one month. 3. For the aggravated break and enter I indicated a sentence of two years, three months with a non‑parole period of one year, four months.
2. Each of those indicated sentences had been reduced by 25% and there was a further reduction on the sentence for other matters.
3. I must determine this sentence by having regard to the sentence imposed on Cook and the offender's respective degrees of culpability. Like should be compared with like. Parity is a principle that is designed to ensure equal justice. In like cases that principle can also encompass the structure of the sentence and its non-parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271.
4. Both men have similar criminal histories and similar personal histories but different medical conditions or mental health conditions.

Subjective case

1. I have had the considerable benefit of a comprehensive report prepared by Dr Richard Furst, Forensic Psychiatrist. He sets out some brief biographical details. Boyden was 27. He was born in Goulburn. He lived with his mother in Liverpool. He has been in relationships in the past and he has children. He has siblings. There is a well‑documented history of emotional and behaviour difficulties going back to when he was very young. There is a history of an abusive father and DOCS involvement.
2. He struggled at school and was diagnosed with ADHD and prescribed medication. There is evidence that he was "conduct disordered" throughout his childhood and teenage years, and first went to juvenile detention when he was aged 11. He has been in and out of custody since. Dr Furst concludes he appears to be institutionalised. There are reports of him hearing voices, and he has previously been referred to the Community Mental Health Team at Liverpool.
3. When he was placed into custody this time he spent time in the Mental Health Screening Unit. He is presently being managed in the hospital section of Long Bay Hospital. He is an involuntary psychiatric patient and subject to a Community Treatment Order. Dr Furst's report (which will accompany the warrant) contains a comprehensive review of Justice Health medical records of which there were two lever arch folders.
4. In Dr Furst's opinion Boyden meets the criteria for the following diagnoses; schizophrenia, chronic and treatment resistant, substance abuse disorder, (methylamphetamine and cannabis) and borderline antisocial personality disorder. His report sets out in summary form what those disorders involve. It would appear that the diagnosis of schizophrenia is a recent one, and so far as is practicable is being dealt with by Justice Health.
5. Dr Furst opines that while Boyden was aware his actions were wrong, his schizophrenic illness was likely to have affected his judgment and decision making. If Boyden is to remain in custody he makes recommendations that he remain under the care of psychiatric services. And, when more mentally stable he should be logically progressed to the mental health pods at the MRRC, the Hamden Unit, so he can have greater access to mental health nurses and psychiatrists. He should be managed by the Forensic Community Treatment Order and that should continue. If possible he should be given specialist drug and alcohol input such as the EQUIPS program.
6. The report also sets out a treatment plan should he be released into the community. It involves care by the Liverpool Community Mental Health Service, continued appointments, allocation of a case manager, appointments with a treating psychiatrist, medication, engagement in drug and alcohol counselling and if possible relapse prevention counselling.
7. Dr Furst notes that the custodial setting is inherently stressful for all inmates, particularly due to overcrowding, lack of access to services. Given the nature of Mr Boyden's serious mental illness and his other disorders he is particular vulnerable.
8. Dr Furst paints a poor prognosis for Mr Boyden. Mr Boyden is likely to remain functionally impaired by his chronic schizophrenic illness, personality disorder and his substance use disorder for the foreseeable future. Mr Boyden's schizophrenic illness will likely progress. His overall level of function and capacity for independent living in the community will likely decrease. As he progresses to his late 20s and into his early 30s he will probably end up requiring long term care; such as would be available in a psychiatric rehabilitation unit.
9. There is also material before me that indicates that he is institutionalised, justifying every effort being made to try and break the cycle of crime and gaol.

Submissions

1. Both Ms Knox, Solicitor for the Director, and Mr Booker, Boyden's counsel, provided the court with written submissions, to which they spoke. There is no significant difference between them when it comes to matters of principle. Both sought to address issues relating to community protection. Mr Booker made an interesting submission that I should safeguard his parole entitlement by avoiding the State Parole Authority determining when he should be released by imposing a sentence of less than three years. He relied on R v Leete (2001) 125 A Crim R 37. I have complete confidence in the State Parole Authority to properly consider the interests of the offender and the safety of the community. While I can see some merit in some cases of structuring a sentence to avoid the operation of s 135 Crimes (Administration of Sentences) Act 1999, this is not such a case.
2. Mr Booker notes that Dr Furst's prognosis requires sensitive consideration. He submits that the longer the offender spends in custody the harder it will be for Boyden to learn how to adjust to normal community life and to take advantage of what little time in the community might be left to him.
3. Ms Knox concedes that there must be a lesser sentence than that imposed upon the co‑offender, but she notes that this sentence should be appropriately accumulated on the terms that were imposed from when he first went into custody.

Synthesis

1. I have to formulate and indicate appropriate sentences and structure the aggregate sentence. Ultimately every sentencing exercise is about community safety and community protection.
2. If the plan put forward by Dr Furst is implemented while he is in custody and on parole the community should be able to be protected from Mr Boyden and he should be able to learn to live a normal life in the community for as long as his illness allows. But considerable resources will need to be directed to him, both inside gaol and outside. Justice Health, Community Corrections and everyone in our community are presently struggling with the COVID-19 pandemic. That creates particular problems for prisoners who cannot control their own lives and may be vulnerable if the COVID virus enters gaols. This offender would be eligible for early parole if COVID enters the gaols and appropriate arrangements could be made: s276 Crimes (Administration of Sentences) Act.
3. His mental illness and the other matters I have indicated will mean that this sentence will be more onerous than for a prisoner without such conditions. Sympathy has to be given for the now diagnosed mental illness, schizophrenia, but care needs to be taken because the personality disorder is still operative. I certainly cannot extend the sentence because of community protection issues
4. I have to return to what was done. There must be appropriate parity and proportion to the sentence imposed on Cook. I cannot forget that there were two victims here and they each require some vindication.
5. Each of the indicated sentences will be reduced by 25% to reflect the early plea of guilty. Synthesising all those matters I come to the conclusion that there must be a further time in custody. There will be a finding of special circumstances.

Orders

1. The sentences will commence on 25 December 2020.
2. I indicate the following sentences: 1. For the steal motor vehicle (sequence 2), I indicate a sentence of nine months. 2. For the steal motor vehicle (sequence 5), I indicate a sentence of nine months. 3. For the aggravated break and enter, as it carries a standard non parole period I indicate a sentence of two years and three months with a non-parole period of one year and four months. 4. The driving while disqualified, I indicate a sentence of three months. There will be a driving disqualification of 12 months. 5. For the obtain benefit by deception I indicate a sentence of one months.
3. There will be an aggregate sentence in this matter of three years and two months to date from 25 December 2020. The non-parole period will be one year and seven months reflecting a finding of special circumstances for the matters outlined above, including accumulation. He will be eligible for consideration for release to parole 24 July 2022. There will be a parole period of one year and seven months.
4. A copy of Dr Furst's report will be sent by the Registrar to Community Corrections.
5. I have no say about whether he should or should not be released to parole, but on the material before me I would indicate that if a community treatment order is in place and the proposals put forward by Dr Furst can be put in place community safety could be satisfied. But that is not my decision. And that decision will need to be made by the State Parole Authority closer to the parole date.
6. AUDIO VISUAL LINK CONCLUDED AT 11.52AM

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2022