Bolin v R

Court of Criminal Appeal (NSW)|2020-12-04|Before: Basten JA, Johnson J, Davies J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/298916 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2019] NSWDC 744 Date of Decision: 8 November 2019 Before: Colefax SC DCJ File Number(s): 2018/298916

Judgment

BASTEN JA: The applicant, Wade Bolin, sought leave to appeal from an aggregate sentence imposed on him in the District Court at Campbelltown on 8 November 2019. As a result of the commencement of the sentence being backdated to 2 April 2019, the non-parole period of 2 years and 3 months was due to expire on 1 July 2021. Although there was an apparent error in the fixing of the commencement date, and although a notice of intention to appeal against sentence was filed on 11 November 2019, the notice of appeal and written submissions were not filed until 27 August 2020. The matter was listed for hearing, with a degree of despatch, on 4 December 2020.
For reasons which will be explained below, the Court was satisfied at the end of the hearing that the sentence of 4 years 6 months imprisonment, with a non-parole period of 2 years 3 months, should have commenced two months earlier than it did and should be reduced in length. The Court then made the following orders: (1) Leave to appeal granted. (2) Allow the appeal. (3) Quash the aggregate sentence imposed by Judge Colefax SC in the District Court on 8 November 2019. (4) Resentence the applicant to a non-parole period of two years' imprisonment commencing 2 February 2019 and expiring 1 February 2021 with a balance of term of 15 months' imprisonment expiring 1 May 2022. The applicant is first eligible for release on 1 February 2021. The reasons for those orders now follow.

Factual background

The offending the subject of the sentence under review took place from the evening of 30 September 2018 to the following morning, 1 October 2018. The offender and the victim had been in a de facto relationship. The offences, and the consequent sentence, need to be understood in the context of the deterioration of that relationship.
Prior to the events of Sunday, 30 September 2018, the offender and the victim had been in a de facto relationship for some 4.5 years. They had a daughter who was two years old at the date of these events. (The victim also had a son by an earlier relationship.) In January 2017, when their daughter was six months old, police obtained an apprehended domestic violence order (ADVO) against the offender, which was in place for a year, until January 2019. Although the terms of the ADVO precluded contact, the offender and the victim resumed their relationship in June 2018. On 14 June 2018 there was an argument, in the course of which the offender punched the victim in the eye. The offender was arrested later that day and charged with assault occasioning actual bodily harm and contravening the ADVO. He was released on bail. The offender was not sentenced with respect to those offences until 3 December 2018, when he was given an aggregate sentence of 9 months imprisonment in the Liverpool Local Court.
In August 2018 the ADVO was varied. In mid-September 2018 the victim again broke off the relationship with the offender, shortly prior to the offending on 30 September.
On 1 October 2018 the offender was arrested with respect to the present offences and remained in custody thereafter. When the offender was sentenced by the Local Court on 3 December 2018, the sentence was backdated to 2 October 2018. That sentence comprised a non-parole period of 5 months and an aggregate sentence of 9 months. The non-parole period terminated on 1 March 2019.

Commencement of new sentence

When sentenced in the District Court in November 2019, the judge stated that the new sentence was to be partly accumulated on the sentence for the offences committed on 14 June 2018. If the sentence were to be only partly accumulated, it must have been partly concurrent. However, the new sentence was stated to commence on 2 April 2019, a month after the non-parole period on the earlier sentence had expired.
In this Court, it was accepted by the Director of Public Prosecutions that the proper course, putting aside questions of concurrency, would have been to commence the new sentence when the non-parole period on the earlier sentence would have expired, namely 2 March 2019. From that date, the offender would have been entitled to a statutory parole order pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW), s 158.
It is unfortunate that the discrepancy between the clear intention of the sentencing judge and the actual commencement date announced by him was not appreciated at the time the sentence was imposed. It is now not possible to be sure what the judge intended. The error is identified as ground 1 in the notice of appeal. However, as there is also a second ground alleging that the sentence was manifestly excessive, correction of that error will be dealt with after considering the circumstances of the offending and whether the aggregate sentence was manifestly excessive (ground 2).

Conduct on evening of 30 September 2018

The circumstances of the offending, derived from a statement of agreed facts, were as follows. The offender and the victim had a heated argument on the telephone on the evening of Sunday, 30 September. Shortly thereafter, at about 8pm, the offender arrived at the victim's home. He entered via the back door, ran up to the victim, who screamed. He told her to stop screaming and spat towards her.
The offender told the victim to cut her hair off, or he would do it himself. He said he was going to make sure that "by the time he was done with her" she would be ugly and no one would want her. The victim got a knife and cut her own hair off. The offender said that he hated her and wished she were dead. The victim was scared, went to the bathroom and started cutting herself on the arm with a knife in an attempt to make him feel sorry for her and stop him hurting her. When she came out of the bathroom, the offender spat towards her again. She asked him to leave, but he did not. He told her to go to bed which she did. The offender also fell asleep.
The following morning, 1 October 2018, the argument continued. The offender was still very angry about their relationship being over. He again told the victim that he wished she were dead and did not care if she was dead and that if he could not have her, nobody else could. She was afraid of him; she took a knife and stabbed the back of her own head about three times "so that the offender would stop". He did then calm down and became apologetic. He told her he was sorry, but that it was her fault. When the offender eventually agreed to leave the house to obtain something down the road, the victim took her daughter, ran to a neighbour's house and phoned the police. After the offender returned, the police arrived and arrested him. They observed minor lacerations on his left forearm, which he stated were self-inflicted.
The offender was charged with three offences, namely: (1) Aggravated enter dwelling with intent to commit a serious indictable offence, namely intimidation: Crimes Act 1900 (NSW), s 111(2); (2) Intimidation: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1); and (3) Contravene ADVO: Crimes (Domestic and Personal Violence) Act 2007, s 14(1).

Judgment on sentence

The assessment by the sentencing judge of the objective seriousness of the offending was not challenged. He held that the aggravated entry into the dwelling and the breach of the ADVO fell "somewhere equidistant between the middle and the bottom of the range." With respect to the offence of intimidation he found that it was above the mid-range. Given that the intimidation occurred over a lengthy period and was repeated the following morning, that assessment was unsurprising. However, it had an awkward result because the maximum sentence for the aggravated entry offence was 14 years imprisonment, while the maximum penalty for the domestic violence offence of intimidation was 5 years imprisonment.
The judge also found each offence was aggravated by (i) the offender being on bail; (ii) the offences occurring in the victim's home and (iii) the prior history of similar offending.
The sentencing judge accepted that the offender had a "dysfunctional background" giving rise to reduced moral culpability. He noted that, as a child, the offender had been diagnosed with and treated for ADHD, oppositional defiance disorder and conduct disorder. He had used cannabis from age 12, started drinking alcohol at age 13 and consuming ice when he was 14. However, the judge also noted that since being in custody he had been drug free. Significantly, he had also been diagnosed with bipolar disorder, whilst in gaol. The offender gave evidence before him, the judge stating: "You have expressed genuine remorse - both in the witness box and to the psychologist - and I found you to be an impressive witness."
The judge concluded that the offender's prospects of rehabilitation "are indeed quite good." The judge treated the need for general deterrence as reduced on the basis of his mental illness. He made a finding of special circumstances, sentencing the offender to 4 years 6 months imprisonment, with a non-parole period of 2 years and 3 months, being 50% of the sentence period.
The judge stated the individual sentence which he would have imposed had he not determined an aggregate sentence to be appropriate. With respect to each offence, he allowed a discount of 25% for the early pleas of guilty. The indications were as follows: 1. aggravated entry - 3 years; 2. intimidation - 2 years 3 months; 3. breach of the ADVO - 6 months.

Grounds of appeal

As noted above, the first ground of appeal concerned the commencement date of the aggregate sentence. It was undoubtedly correct to backdate the commencement date on the basis that, since 1 March 2019, being the date on which the non-parole period for the June 2018 offences expired, he had remained in custody as a result of the subsequent offending. While it was no doubt likely that the parole order would have been revoked as a result of the subsequent offending, it seems unlikely that the judge simply assumed that to be so, without referring to it, in commencing the fresh sentence one month after the expiration of the earlier non-parole period. Rather, it should be accepted that there was an error in calculation.
The next question is whether it would have been appropriate simply to backdate the commencement date to the termination of the earlier non-parole period. The judge's statement that he intended to accumulate the sentence in part suggests that he intended it to be partly concurrent with the earlier non-parole period. Given that, although the incidents were entirely separate, each involved the same parties, such a course would not have been inappropriate and may well have been intended. In my view the appropriate step is to allow the appeal with respect to ground 1 and backdate the commencement of the sentence to 1 February 2019, which is one month before, rather than one month after, the termination of the earlier non-parole period.
The next question is whether the sentence imposed was in fact excessive, as submitted under ground 2. Subject to one qualification, the putative individual sentences indicated by the trial judge did not demonstrate error. Certainly the assessments of both the objective seriousness of the offending and the subjective circumstances of the offender were unexceptionable. The result, however, is awkward in that the more serious element of the offending, namely the intimidation, extending over two periods of time, gave rise to a lesser indicative sentence than the aggravated entry. That is not to say, however, that the overall period of the three separate sentences, namely 5 years 9 months, was manifestly excessive. Rather, in my view, error lay in the degree of notional accumulation of those sentences reflected in the aggregate sentence, which was 78% of the sum of the individual sentences. Indeed, if one assumes that the breach of the ADVO would likely have been wholly subsumed within the sentence for the aggravated entry, the proportion is above 80%.
Given that the offences involved the one course of conduct, a higher degree of concurrency would have been appropriate. In my view, it would have been appropriate, at least notionally, to make the sentence for the ADVO entirely concurrent with the sentence for the aggravated entry, with each to commence on 2 February 2019, and to commence the sentence for intimidation on 2 February 2020. That would constitute an aggregate sentence of 3 years 3 months.
I do not consider that a proportionate reduction should be made to the non-parole period. Whilst maintaining the finding of special circumstances, a non-parole period of no less than 2 years is necessary to reflect the seriousness of the offending. The balance of term (15 months) is almost two-thirds of the non-parole period, and therefore almost double the default proportion provided by s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Because the sentence period exceeds 3 years, there will be no automatic parole order at the conclusion of the non-parole period. The offender is first eligible for release on parole on 1 February 2021, as indicated in the orders made at the conclusion of the hearing of the appeal.
JOHNSON J: The judgment of Basten JA reflects my reasons for joining in the orders made on 4 December 2020.
DAVIES J: The judgment of Basten JA reflects my reasons for joining in the orders made on 4 December 2020.

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