R v Boyle

[2022] NSWDC 4

District Court of NSW|2021-12-15|Before: Number J, Bulletin J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-12-15

Before

Number J, Bulletin J

Catchwords

[2013] HCA 37 Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 Di Simoni v The Queen (1981) 147 CLR 383
[1981] HCA 31 Hili v The Queen (2010) 242 CLR 520
(1999) 48 NSWLR 327 Postiglione v The Queen (1997) 189 CLR 295
[1997] HCA 26 R v Boyle NSWDC 18/9/2018, unreported R v Engert (1995) 84 A Crim R 67 R v Henry [1999] NSWCCA 111

Source

Original judgment source is linked above.

Catchwords

[2013] HCA 37 Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 Di Simoni v The Queen (1981) 147 CLR 383[1981] HCA 31 Hili v The Queen (2010) 242 CLR 520(1999) 48 NSWLR 327 Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26 R v Boyle NSWDC 18/9/2018, unreported R v Engert (1995) 84 A Crim R 67 R v Henry [1999] NSWCCA 111Contemporary Issues in Crime and Justice Number 187 October 2015Crime and Justice Bulletin NSW Bureau of Crime Statistics and ResearchWan et al The effect of arrest and imprisonment on crime, Crime and Justice Bulletin BOSCAR No 158, February 2012D Weatherburn The effect of prison on adult reoffending, Crime and Justice Bulletin BOCSAR, No 143, August 2010

Judgment (23 paragraphs)

[1]

Solicitors: Morrisons Law (for the offender) File Number(s): 2020/00347202

[2]

Introduction

On the 16 July 2020 Matthew Boyle was released to parole after serving 2 years 9 months of a sentence imposed by His Honour Judge Conlon on 18 September 2018. His Honour had made a finding of special circumstances allowing Boyle a longer period of supervised parole. His Honour was not confident that Boyle had prospects of rehabilitation but he took into account his expressed intention of getting his life back on track. He noted that success would be dependent on two things; 1. Boyle accepting responsibility for his own rehabilitation and 2. his committing to long term residential rehabilitation on release to parole: R v Boyle NSWDC 18/9/2018, unreported at p 15.
Boyle reported to parole but his supervision was impeded by COVID restrictions. His response was considered "satisfactory" and he engaged in and completed drug and alcohol counselling. Boyle was not however keeping to the fundamental promise he made in order to be given the privilege of parole - to be of good behaviour.
On 17 August 2020 he robbed the bartender of the Balgownie Hotel of $1,100, while armed with an offensive weapon: s 97(2) Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years imprisonment.
On 6 October 2020 he broke into the garage of a home in Balgownie, while in company with another person: s 112(2) Crimes Act. This offence carries a maximum penalty of 20 years imprisonment and has a standard non-parole period of 5 years.
On 2 December 2020 he stole a motorcycle: s 154F Crimes Act. This offence carries a maximum penalty of 10 years imprisonment. Soon after, in company with another man, he used an offensive weapon to intimidate the owner of that motor cycle, as the owner tried to stop the theft: s33B Crimes Act. This offence carries a maximum penalty of 15 years imprisonment.
On 7 December 2020 Boyle was back in custody.
After entering guilty pleas in the Local Court he appeared for sentence before me at Wollongong District Court on 15 December 2021. He adhered to guilty pleas entered in the Local Court. After tender of relevant evidence and submissions from counsel. There was insufficient time to finish the matter that day.
Boyle must have the full benefit of a 25 % reduction for the utilitarian value of his early guilty pleas: Crimes (Sentencing Procedure) Act 1999. As I will be imposing an aggregate sentence I will take care that the process of aggregation and accumulation does not erode that benefit.

[3]

Sequence 4: Robbery whilst armed with an offensive weapon

On 17 August 2020, the offender rode a black motorcycle to the Balgownie Hotel. At 11:03 pm, he went into the Hotel. He had his helmet on and the visor was down. In one hand he held an item which resembled a handgun; in the other hand, he had a small fleecy bag.
The male barman approached the offender intending to tell him to remove his helmet. The offender said "I've got a gun and I want all the money". He lifted his left hand and pointed the item which resembled a handgun in the direction of the only patron of the hotel.
The offender yelled at the patron to "get down on the ground"; which he did. The patron was panicked but tried to remain calm - he believed that the offender might shoot him and he kept thinking of his family. The barman also crouched down with his hands up.
The offender pointed the item briefly in the direction of the female assistant manager, who had stuck her head out of the office. He then moved that item so that it pointed at the barman. He said, "Don't fuck around, give me the money". He then cocked the item, sliding the top part of it back, so it made a clicking sound. The barman thought that the offender might shoot him and feared for his life.
The barman walked to the office. The offender said, "don't fuck around, tell her to open the door now". The offender was pacing around, in close proximity to the barman, gesturing with the item and pointing it in the direction of the barman and the door to the office where the assistant manager was located. The barman was scared as he was not certain what the offender's next move would be.
The barman knocked on the door of the office where the assistant manager was hiding, stating "he wants the money, just give him the money". The offender yelled "open the door, open the door". The assistant manager did not respond. The barman said to the offender "she's got kids mate, she's not going to open the door. I will give you whatever money I've got in the till". The offender said "fuck" and pulled down his helmet's secondary visor to cover his eyes. The offender then said "yep, give me all your money".
The assistant manager telephoned police and hid on the floor of the office. The offender was repeatedly yelling "give me the money". The barman provided the offender with the till drawer and the offender helped himself to the cash in the drawer. The offender said "fuck I need more, what else do you have". The barman was fearful about what the offender may do to him.
The barman walked to the takeaway beer till which is at the southern end of the bar and opened it. The offender walked around the south end of the bar to be behind the bar. The offender opened one of the two "pokie" tills. The offender helped himself to the money from the takeaway beer till.
At approximately 11:06 pm, the offender left the venue. In total, he stole $1,100.00 in cash from the proprietor of the Balgownie Hotel.
The barman checked on the patron, who was still lying on the ground, and then knocked on the office door and told the assistant manager that the offender had left and asked for the key to lock the Hotel. The assistant manager was frozen with fear and shock and took a few moments to open the office door. Police arrived shortly after and established a crime scene.
A copy of CCTV footage of the incident was tendered.
Later, investigating police intercepted the mobile phone calls of the offender. During one conversation, he said: "Last time I owed some cunt I did a stick up to repay 'em." During another conversation the offender said, "I've got a little fakey. I've got a fake, a little fake weap. Umm. A little fake schnun gay and that. Yeah it looks the part. Cunts crumble".

[5]

Steal motor vehicle (Sequence 5); Use offensive weapon with intent to commit an indictable offence (intimidation) in company contrary (Sequence 6)

On 30 November 2020, the offender and an associate had a telephone conversation which was lawfully intercepted by police. In the course of this conversation, the offender and his associate discussed "sussing" out bikes to steal.
On 2 December 2020, the offender and his co-offender were driving through Wollongong in his white Holden with a trailer. Both the motor vehicle and the trailer had stolen number plates. The offender and co-offender were wearing hi-vis shirts, hats and sunglasses.
At 11:06 am, in an intercepted telephone conversation the offender indicated he was looking for a "toy", "a bike. A bike for Christmas". He and his co-offender were heard discussing stealing various motorcycles whilst they drive throughout Wollongong.
At 1:20 pm, the offender and the co-offender went to a unit complex located in Wollongong. They parked in the driveway and pushed a black Honda CBR from the driveway and loaded it onto the trailer. The owner of the motor cycle was in his unit. His flatmate told him what was happening and also telephoned police.
The owner ran downstairs, outside, and saw his motorcycle in the back of the trailer. The offender was walking back to the driver's side door. The co-offender was closing the tailgate of the trailer. The owner approached the offender. He said "what the fuck are you doing with my bike?" and pushed the offender backwards. The following exchange occurred: Offender: "We are taking it" Victim: "No your fucking not, you can take it off now". Offender: "It's not my problem, pay your debts….to the Reichers". [Note: a local motorcycle gang. Victim: "What, I have nothing to do with the Reichers".
The offender got back to the driver's seat of his motor vehicle and then turned around. He had a 25cm knife in a black sheath in his left hand. He did not pull the knife out of the sheath. He said: "I'll put this through your fucking neck. I've already done 14 years in gaol and I'm not doing anymore because of you".
The owner fearing for his safety stood back. He believed the offender may stab him. The offender got into the driver's side seat. And he and his co-offender left with the victim's motorcycle on the trailer. A short time later, police attended. The motorcycle was worth approximately $11,000.00.
On 5 December 2020, police lawfully intercepted a telephone conversation between the offender and an associate in which he stated: "I got a new CBR650 R……..I held a fucking knife to this cunts throat and I got ummmmmm CBR instead".
Boyle was arrested on 7 December 2020. He did not participate in an electronic record of interview but subsequently, he provided information to police that enabled the recovery of the stolen motorcycle. There was some damage to it.

[6]

Armed robbery

Armed robbery is not just a crime against property; it is a crime against people. Where citizens are robbed, assaulted and threatened with a weapon it can have a terrible impact on them. Such crimes, particularly where they occur near places many use, such as pubs, can have more serious consequences. People lose confidence. They can feel that the police cannot protect them. They can learn to fear others and lose trust in others. Where people are fearful, the entire community suffers. As a consequence, we do lose our freedom to go out, and participate in community activities.
Where criminals are caught committing such offences, the community can lose trust in the Courts if they do not punish such crimes and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency by sentencing judges led the highest court in NSW, in 1999, to publish a guideline judgment designed to guide the sentencing discretion of judges in matters such as this: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149.
The offence involved the use of a gun like object. The weapon has not been recovered. The offender referred to the weapon as a "fakey" but he also acknowledged that it was perceived to be a real weapon and that when threatened with it, he said, "cunts crumble."
Those present at the hotel felt a very real threat to their lives. The employees of the hotel were vulnerable because of their employment. The event was planned. The offence was committed for the financial advantage of the offender.
The Court of Criminal Appeal indicated that in "the ordinary case" of an armed robbery, sentences for matters which fell at the lower end of the range, would be in the vicinity of four years imprisonment, following a late plea of guilty: Henry. This offence was not at the lower end of the range.
While not prescriptive applicable guideline judgments of the Court of Criminal Appeal must be taken into account: s.42A Crimes (Sentencing Procedure) Act 1999: Moodie v R [2020] NSWCCA 160. Careful attention must be paid to guidelines and maximum penalties as both are important guides to the exercising of a judge's sentencing discretion

[13]

Subjective case

Boyle was born in 1988. In 2008 he received a short suspended sentence for taking a motor vehicle. He breached that bond by committing further offences. The bond was called up and he served that sentence along with others. Since then the longest period he has spent out of custody is 14 months. Apart from that period in 2010 and 2011 his time in the community can be measured in months, sometimes days. He was released to parole on 17 July 2020. His offending commenced on 17 August 2020.
He grew up locally. He was raised by his father, a heavy drinker and a harsh disciplinarian. It appears he had little parental supervision. His mother left the home when he was 4 but has maintained some contact. Both parents still offer support. He left high school in year 10. He started an apprenticeship and did a TAFE course but drug use saw his life go downhill. He was kicked out of home at 16. Since he was 19 his drug of choice has been methylamphetamine (ice). In 2007 he spent 3 months at Triple Care Farm. During his 14 months in the community in 2010-2011 he was able to work and form a relationship.
I have the psychosocial report prepared in 2016 and a recent report of Ms North, a forensic psychologist. Ms North notes what she describes as Boyle's "dysfunctional background". She said his illicit drug use issues were exacerbated by a traumatic incident when he was 18. She notes Boyle describes depressive symptoms from early adulthood.
She had concerns about the impact of institutionalisation on him, given his obvious difficulties adapting to life outside custody and his pattern of relapsing into methylamphetamine use soon after release. She makes sensible recommendations for treatment and the need for psychiatric review. It is critical Boyle be supervised, monitored and assisted on release. A copy of Ms North's report will accompany the warrant.
The offender wrote a letter to the court. He offered his "ohnest" insight from his perspective. In the letter he sought to explain why he relapsed into drug use and crime. He says he will take all available programmes and any professional help offered in order to avoid such relapses next time. He says he is "truly sorry and remorseful" and that he is "really not a bad person."
As the Court of Criminal Appeal (CCA) reiterated in Lai v R [2021] NSWCCA 217; "Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court."
It is important to note however that the CCA was not saying unsworn statements were inadmissible. The comments were directed to matters that were "in dispute." That statement could not have been prescriptive; as each case must be determined on its own facts. Reasonable minds will disagree when assessing the weight that must be given to matters raised in the proceedings, and not subject to sworn evidence, particularly those to which the Evidence Act 1995 does not apply.
I do not reject what he said in its entirety but his statements of good intentions carry no weight. But assertions in letters to the court must be backed up by actions and to date Boyle has done little to give me any confidence his assertions of good intentions will be carried out in custody or on release. I note that there was evidence before Judge Conlon via his brother that the offender was "over it and wants to do something with his life and get off drugs as he is sick of going to gaol:' at page 12.

[18]

Submissions

Mr Fraser, Public Defender and Ms Keay, Deputy Senior Crown Prosecutor, both provided helpful and comprehensive written submissions. They took me to relevant authorities. On matters of legal principle they were not far apart. Those submissions have informed this judgment.
Mr Fraser spoke of the two sides to Mr Boyle; The capable worker and partner and the violent criminal, who while under the grip of drugs shows no respect for others. He noted that given Boyle's history of re-offending soon after release he should have been more aggressively supervised when released to parole but that the COVID pandemic made that impossible. Mr Fraser cautioned against elevating the seriousness of the steal motor vehicle matter because a knife was present used drawing my attention to what was said in Di Simoni v The Queen (1981) 147 CLR 383; [1981] HCA 31.
He noted that Boyle still has family support from his father, his mother and his partner. He also, as the references provided indicate, has support from other members of the community who see his good side. While his prospects must remain guarded, as he gets older, as his letter makes clear, he will have time to learn and reflect. While, ultimately, his release to Parole will be dependent on a decision by the State Parole Authority Boyle he submitted should be given a lengthy period of parole by a finding of special circumstances.
In response Ms Keay noted these offences indicated a significant escalation in the sort of crimes committed by Boyle. She noted a number of aggravating features common to each offence; reminding me that while they must be taken into account, care must also be taken not to double count them to the offender's disadvantage. She made the simple point that if Boyle was having trouble coping in the community he could have called his parole officer and asked for help - he didn't. He had a partner, he had accommodation and work but he wanted more, including a motor bike for Christmas.
She noted that nowhere in his letter is there any acceptance of personal responsibility. She submitted that the sentence imposed must bring home to the offender the need to make better choices. In her submission no finding of special circumstances would be required as even without such a finding the period of parole would meet the purposes argued for by Mr Fraser.

[19]

Specific Deterrence

Ms Keay urged on me a sentence that by its severity might deter Boyle and give him some incentive to engage in rehabilitation programs. While s 3A(b) Crimes (Sentencing Procedure) Act 1999 and a number or authorities to which I must have regard, such as R v Henry, state that imprisonment is expected to have a deterrent effect this is sadly another example of facts where it did not.
Many studies have concluded prison exerts no significant effect on the risk of recidivism for many offences. In fact prison, terms as Boyle's history, illustrates can increase the risk of further offending: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011; Does the first prison sentence reduce the risk of further offending? J Trevena and D Weatherburn; Contemporary Issues in Crime and Justice Number 187 October 2015; Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research; Wan et al., "The effect of arrest and imprisonment on crime", Crime and Justice Bulletin BOSCAR No 158, February 2012; D Weatherburn, "The effect of prison on adult reoffending", Crime and Justice Bulletin BOCSAR, No 143, August 2010; Bagaric and Edrey, "The Sentencing Advisory Commission and the Hope of Smarter Sentencing": Current Issues in Criminal Justice, Vol 16 No. 2 (2004) 125, 132; Robinson, "The role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best", University of Pennsylvania Law School, Penn Law: Legal Scholarship Repository, Georgetown Law Journal, Vol 91: 949 at 976 ff .
The threat of a long, harsh prison term had no impact on this institutionalised offender. He simply did not care about the consequences of his actions to himself. He did not care about the impact on others; the victim, his friends and family or the community. In such case it might be said; not only does the principle of specific deterrence have little utility but it should not be taken into account on sentence. While the studies cited can be accepted a sentencing judge is entitled to assume that specific or general deterrence is a relevant factor in sentencing without requiring proof that that is so: Weribone v R [2018] NSWCCA 172 at [14]. "[T] he fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter:" R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420 at [127].
Here, while it must be considered, specific deterrence does not require a significant increase in the sentence, the proper application of other sentencing principles means the aggregate sentence will be long enough to have an impact on Boyle: "The courts administer justice on behalf of the community. But they administer justice according to law. The sentencing process is governed by the Sentencing Act and other relevant laws. A judge cannot simply impose the sentence that the judge would like to impose, or that the judge thinks would satisfy the public. To do either thing would be contrary to law:" R v Nemer [2003] SASC 375, Doyle CJ at [13].

R v Boyle

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (26)

Cited By (1)