Boney v R [2015] NSWCCA 291

Boney v R [2015] NSWCCA 291

The sentencing judge erred by taking into account the Applicant's parole status when assessing objective seriousness, but the offence remained objectively serious and the Court was not persuaded that any sentence of greater or lesser severity was warranted. The sentence was not manifestly excessive. The alleged failure to consider a compulsory drug treatment order did not invalidate the sentence because s 18B operates after sentence, but there were grounds on which the Drug Court might find the Applicant to be an eligible convicted offender, so referral to the Drug Court was required.

Jurisdiction
Australia
Judgment Date
27 November 2015
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed; sentence confirmed; Applicant referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
Legal Topics
['sentence Appeal' 'aggravated Break Enter and Steal' 'manifest Excess' 'objective Seriousness' 'compulsory Drug Treatment Order' 'drug Court Referral']
['criminal Law'] ['sentence Appeal' 'aggravated Break Enter and Steal' 'manifest Excess' 'objective Seriousness' 'compulsory Drug Treatment Order' 'drug Court Referral']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of the offending by taking into account that the Applicant was on parole at the time of the offence.' 'Whether the sentence imposed was manifestly excessive.' 'Whether the sentencing judge erred in failing to consider referral of the Applicant for a compulsory drug treatment order.' 'Whether the Court of Criminal Appeal should refer the Applicant to the Drug Court under s 18B of the Drug Court Act 1998.']

Ratio Decidendi

The sentencing judge erred by taking into account the Applicant's parole status when assessing objective seriousness, but the offence remained objectively serious and the Court was not persuaded that any sentence of greater or lesser severity was warranted. The sentence was not manifestly excessive. The alleged failure to consider a compulsory drug treatment order did not invalidate the sentence because s 18B operates after sentence, but there were grounds on which the Drug Court might find the Applicant to be an eligible convicted offender, so referral to the Drug Court was required.

Court Disposition

Leave to appeal granted; appeal dismissed; sentence confirmed; Applicant referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

Orders

  • ['Grant leave to appeal.' 'Dismiss the appeal.' 'Confirm the sentence imposed by Colefax DCJ on 6 February 2015.' 'Refer the Applicant to the Drug Court to determine whether the Applicant should be the subject of a compulsory drug treatment order.']