R v Boyd [2022] NSWCCA 120
R v Boyd [2022] NSWCCA 120 · Read the judgment on AustLII
Catchwords: Sentencing – self-induced intoxication
Sentencing courts normally aren’t allowed to take into account self-induced intoxication in mitigation of a sentence; the sentencing legislation prohibits it. But in this decision, the Court of Criminal Appeal (‘CCA’) has identified that there may be circumstances – most notably, where there is drug or alcohol abuse as a result of childhood trauma, and where the offender is now at the ‘crossroads,’ – in which the drug or alcohol use might not properly be described as ‘voluntary’, such that it might be possible to take it into account in mitigation on sentence after all.
The respondent (this is a Crown appeal against inadequacy) pleaded guilty and was sentenced for a range of significant drug matters (four counts involving a large commercial quantity, one of a commercial quantity), a charge of assault occasioning actual bodily harm (‘AOABH’) in company, and a proceeds of crime charge on a Form 1. He repeatedly sold drugs to an undercover officer, was eventually arrested, and more drugs and cash were found during a search warrant. The AOABH in company offence happened while he was in custody on remand for the drug offences. For the totality of his offending, the respondent was sentenced to 9 years’ imprisonment with a non-parole period of 5 years and 9 months. The Crown appealed, asserting that the sentence was unreasonable or plainly unjust, principally on the basis that it did not reflect the respondent’s objective criminality.
This summary deals only with a small part of the appeal, relating to self-induced intoxication: The Crown argued that the respondent’s own drug use should not have been found to be causally related to his offending.
Relevantly, as the Court (Rothman J, MacFarlan JA agreeing; Dhanji J also agreeing, with some additional comments) observed, the voluntary use or abuse of drugs is not ordinarily a mitigating factor on sentence; like alcohol, where drugs are consumed voluntarily, it is the responsibility of the user to understand its effects (at [178]). This is because of Crimes (Sentencing Procedure) Act 1999 s 21A(5AA), which prohibits self-induced intoxication being used as a mitigating factor.
However, where, as here, the drugs are used to self-medicate from an abusive and deprived childhood and other trauma, it can hardly be said that the abuse of the drugs is ‘voluntary’. In a case such as this one, where the offender is judged to be at ‘the crossroads’ and where the addiction has been in existence for a significant period and arises not from personal choice but from previous trauma, the Court is entitled to take into account the drug abuse insofar as it affects the state of mind of the respondent, his capacity to exercise judgment, and his prospects of recidivism or rehabilitation (at [179]).
Harking back to the decision of R v Henry (1999) 46 NSWLR 346 – a decision ordinarily referred to because it is the guideline judgment for robbery, but which also contains observations about the relevance of drug use – the Court here considered that the considerations at [273] of that decision remained relevant, despite the subsequent passing of s 21A(5AA). The issue is the degree to which the intoxication was ‘self-induced’ and ‘voluntary’ (at [181]). The most important question in the present case was whether the offender is considered to be at the ‘crossroads’ (at [182]).
For a variety of reasons not discussed in this summary, the sentence was in fact found to be manifestly inadequate. But, in the exercise of the residual discretion not to intervene (and largely because of the subjective circumstances of the offender), the Court declined to intervene and so the appeal was dismissed.