District Court New South Wales Medium Neutral Citation: R v Boyle [2023] NSWDC 57 Hearing dates: 8 February 2023 Date of orders: 8 February 2023 Decision date: 08 February 2023 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 1 year 10 months with a non-parole period of 6 months. Catchwords: CRIME – Dishonestly obtain financial advantage by deception SENTENCING - Relevant factors on sentence – fraud on State COVID payments- committed in custody - gaols sentences have not deterred this offender - accumulation - totality- institutionalised offender – parity VICTIM COMPENSATION - order made Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Gordon v R (1994) 71 A Crim R 459 MAK v R [2006] NSWCCA 381 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Boyle [2022] NSWDC 4 R v Clinch (1994) 72 A Crim R 301 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Matthew John Boyle (the offender) Director of Public Prosecutions Representation: Counsel: Mr S Fraser, Public Defender (for the offender) Solicitors: Morrisons Law (for the offender) Ms K McCrossin (for Director of Public Prosecutions) File Number(s): 2022/00068825 sentence – ex tempore revised Introduction 1. On 1 February 2022 I sentenced Matthew Boyle to a term of imprisonment of six years, six months with a non‑parole of four years and six months for a number of very serious offences: R v Boyle [2022] NSWDC 4. Boyle has a long criminal history and a sad and tragic personal history. It is a history of deprivation, drug use, crime, symptoms of mental illness and trauma. That background has had a significant impact on him and how he has lived his life in society. I recognised in that earlier sentence that his moral culpability would not be the same as a person who did not have such a background and sought to give full weight to it. 2. Boyle had been sentenced by Judge Conlon in September 2019. He was released to parole on 6 July 2020. He committed the offences that I dealt with on 1 February 2022, while he was on parole for those earlier offences. While he was in custody, he committed the two further offences that are for sentence today. They occurred before I sentenced him in February 2022. He was arrested on 7 December 2020. He has been in custody ever since. 3. Although the matters were originally listed before Nowra District Court both the prosecution and the defence agreed that it would be expedient and in the interests of justice that I resolve this matter. I acceded to an application to move this matter to Wollongong District Court. 4. The two matters for sentence today are offences of dishonestly obtain a financial advantage by deception: s 192E(1)(b) Crimes Act 1900. That offence carries a maximum penalty of ten years imprisonment. 5. I am also asked to take into account a Crimes (Sentencing Procedure) Act 1999 Form 1 with a further offence of deal with identity information to commit an indictable offence, s 192J Crimes Act. It is appropriate I do so. Facts for sentence 1. There are agreed facts before the Court. I will not set them out in detail because they, in fact reveal more than what was done but also how the fraud was undertaken. The overall scheme of the enterprise is carefully set out in the agreed facts and attached table 2. Boyle, while in custody, provided his personal information so that it could be used by Anthony King to defraud the State Government in relation to emergency measures that had been put in place to deal with the COVID pandemic. King is presently before the Local Court. The information was used by King to obtain COVID relief grants on his Boyle's behalf. 3. Boyle's then partner, Ashleigh Gilbert, was involved in a similar fraud. The matter on the Form 1involved Boyle arranging for two other associates to provide information to King in relation to their identity which was to be used in other similar frauds. Objective seriousness 1. There was obviously planning. He sought a benefit he was not entitled to. He acted with King. He actually received $400 in his gaol bank account but with his then partner intended to put money aside for a proposed business venture after his release. 2. He was undeserving. He was greedy. As a result of offence $10,500 was lost by the government from the relief fund. That $10,500 could have gone to the benefit of someone genuinely in need. 3. Those factors make this matter, a serious example of its type. As Mr Fraser for the offender concedes. It serious can be moderated so far as objective seriousness because the amount is relatively small compared to many s 192E matters that come before this Court. Section 192E has no upper limit as to the amount that could be the subject of a fraud. 4. It is conceded that the circumstances and nature of the offence mean it is so serious that a custodial sentence must be imposed. Form 1 1. I take into account the matter on the Form 1. Such matters generally require an increase in the sentence because of a need for personal deterrence and retribution for the crime for sentence. But this matter falls at the very bottom of the range of identity information offences. Primarily because, as Mr Fraser properly submits, Boyle was not abusing someone else's identity he was simply dealing with information that had been provided by those persons for fraudulent purposes. 2. There will not be a significant increase because of the matters on the Form 1. To do so would also involve double counting because I have already taken into account Boyle's actions when I considered the level of planning when assessing the objective seriousness of the fraud and when I come to assessing the sentence in general. Guilty plea 1. There was a plea of guilty at the early opportunity. Boyle will get the full benefit of 25%for the utilitarian value of that plea: s 25 D Crimes (Sentencing Procedure) Act. Parity 1. The co‑offenders were put before the Local Court. This matter was committed to the District Court. If this matter had been dealt with in the Local Court, the penalty available to the Court would have been constrained by s 58 Crimes (Sentencing Procedure) Act. It was appropriately brought to this Court so that a just and appropriate additional penalty could be imposed. 2. That said, when I consider issues of parity and fairness, the fact that had he not been serving a sentence it could have been dealt with in a Local Court is a matter I should and do take into account. Gaol has not deterred the offender 1. An obvious aggravating feature here is that the offending occurred while Boyle was custody. A fundamental principle of sentencing is the presumption that gaol deters people from committing further offences. Boyle's history puts the lie to that general proposition. Gaol did not deter him. Gaol has never deterred him. That does not mean that the Courts should not take general deterrence into account and more importantly it does not mean that a just and appropriate punishment should not be imposed. But, as I sought to do when I sentenced him last year, appropriate penalty and punishment can be moderated by a powerful subjective case going to moral culpability and taking into account background. And more importantly, sentences should so far as possible do everything that can be done to ensure that, while removing a person from the community for a period, they are restored to the community in a better position than they went in. The aim being that they do not commit further crimes. The case for the offender 1. Boyle's history is set out in full in my earlier judgement. His prognosis given his history is very, very guarded, but I am heartened by the updated report from Ms North, of 3 February 2023. I gave her report of 9 November 2021 great weight in my earlier sentence. She now notes that: "On a positive note, Mr Boyle described an increase in his motivation towards making positive changes to his life during his current period in custody and has been engaging in Narcotics Anonymous, continuing his Buprenorphine treatment and reported maintaining abstinence. He is presently about to start the Violent Offenders Therapeutic Program and that is to his credit. He has plans for his future which include continuing with what he has learnt in gaol." 1. Ms North makes the point that as Boyle has considerable difficulty in transitioning from gaol into the community: "Mr Boyle will need assistance with accommodation, work, dealing with financial stressors, avoiding anti‑social peers, engaging offence specific and substance abuse treatment. He will need intensive and long-term supervision and the assistance of support services such as those offered by a Community Restorative Centre or Centre Care Post Release Services which could be available in Brisbane if he is allowed to move to that state." 1. She recommends; he continue with his Buprenorphine treatment, that he completes the Violent Offenders Therapeutic Program (VOTP). She notes that he will have access to individual sessions with a psychologist during the VOTP and that his trauma history should be further explored during those sessions. She notes he will need to be supervised and he will need to be monitored. While his plan to relocate to Queensland is a good one it will require both approval of both New South Wales and Queensland authorities as there must be an assurance that appropriate services can be provided to him. 2. Although Boyle expressed some remorse to Ms North, I could not accept it. And frankly, I would not have accepted it even if it had been given by sworn evidence. Boyle has been formed by his history. He has learnt most of his life skills in gaol or juvenile detention. I am sure he regrets getting caught but his default position is the commission of offences against the community. I had hoped when I sentenced him on the last occasion that a two-year period of parole would assist him in breaking a pattern; which is well entrenched as he has been institutionalised. 3. Sadly, it is the inevitable result of the sentence I must impose that his period of supervision on parole will be interfered with, in a sense nullifying the finding of special circumstances, that I made on the earlier occasion. There must be some increase in the actual period in custody, but I cannot impose a sentence that is greater than what is required by the objective seriousness in order to extend his period of supervision. 4. I also note that as this sentence will be cumulative, as that is appropriate given that the offence was committed in custody. While that fact is not determinative, I think it is appropriate that it be cumulative. I have to take into account the existing sentence and the principle that the overall sentence must adequately and fairly represent the totality of the criminality involved: Gordon v R (1994) 71 A Crim R 459 cited with approval in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. 5. I also note that severity of a sentence is not simply linear. What that means is that the severity of a sentence increases at a greater rate than the actual increase in the length of a sentence. For example; a sentence of two years has a greater impact on an offender than a sentence of one year, so far as the punitive aspect of the sentence is concerned: R v Clinch (1994) 72 A Crim R 301; MAK v R [2006] NSWCCA 381. 6. Additionally, an offender's motivation is important. Too severe a sentence may result in a disproportionate level of punishment and that could operate to increase the risk to the community on release. A risk that is already self‑evident in the offender's record that is before me. His prior offending does him no credit and must be taken into account applying the principles set out in the High Court in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14. Principles I too into accounty on the last occasion 7. However, and importantly here, if serving too long a sentence increases Boyle's institutionalisation, the value of the steps he is taking and has taken to promote his rehabilitation, may diminish. The additional period of custody I impose must not, so far as practicable, remove his hope and the work he is doing to, for the first time, lead a normal life at the end of his term of imprisonment. Synthesis 1. I take all those matters into account. I give full weight to the plea of guilty. I take into account the sentence imposed on his co‑offender, Gilbert, but I note the quite substantial differences between. I must synthesise all those matters. 2. My finding of special circumstances is designed to reflect both the accumulation and the principles I have discussed in this judgment. Orders 1. There will be a sentence of imprisonment of one year and ten months imprisonment. That sentence will commence on 7 June 2000. It ends on 7 December 2025. There will be a non‑parole period of six months which will expire on 6 June 2026. 2. That means an additional six months in custody. There will then be a period on parole of one year and four months. Compensation Order 1. I make an order, pursuant to Division 2 of the Victims Support and Rehabilitation Act 1996 in the sum of $8,500 to Service NSW, on behalf of the State of New South Wales. I direct that the amount be paid with 28 days to the Registrar of the District Court at Wollongong. 2. That has order has the effect of a civil debt which may be enforced by the State against you. I doubt if you will be in a position to pay it off for some time but that is a matter for you. AUDIO VISUAL LINK CONCLUDED AT 11.39AM ********** 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: 15 March 2023