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11
Court of Criminal Appeal 11 November 2002

R v Bolamatu

[2002] NSWCCA 454

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE ASSAULT ROBBERY IN COMPANY SENTENCE CUSTODY ACCUMULATION

Citation: Bolamatu v R [2002] NSWCCA 454
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The appellant had been convicted after trial of common assault and had pleaded guilty in the Local Court to robbery in company. The assault involved a violent confrontation at the home of a heavily pregnant woman, where the appellant and a co-offender smashed furniture, took items, and issued threats. The bank robbery involved the appellant jumping a counter at a National Australia Bank branch, demanding money from tellers, and assisting his co-offender past security screens, with over $30,000 taken.

The District Court sentenced the appellant to 18 months (with a 12-month non-parole period) for the assault, and five years (with a three-year non-parole period) for the robbery in company, partially concurrent and partially cumulative on each other and on an existing sentence from a prior robbery in company conviction. The appellant had been in custody since 26 November 2000, when his parole on that prior matter was revoked, more than a year before the new sentences formally commenced on 14 December 2001.

The sentencing judge found special circumstances existed, referencing the appellant's chronic mental illness and need for extended supervision on parole. The appellant sought leave to appeal on the basis that the judge had not adequately reflected that finding, nor adequately accounted for pre-sentence custody and the circumstances of the parole revocation, in the overall non-parole period.

  • Whether the sentencing judge made sufficient allowance for the period of pre-sentence custody when fixing the non-parole periods
  • Whether the judge's finding of special circumstances was adequately carried into effect in the ratio between the non-parole period and the head sentence
  • Whether the fact of accumulation on a prior sentence, combined with a parole revocation arising from a relatively minor subsequent offence, constituted an additional special circumstance not taken into account

Decision

The Court of Criminal Appeal found no quarrel with the individual head sentences for either offence, nor with the decision to make them partially concurrent and partially cumulative on the prior sentence. Because the offences were committed while the appellant was on parole, the principle of totality justified the accumulation structure, and committing offences on parole was itself a matter of significant aggravation.

The Court accepted that the sentencing judge had received inaccurate information about the length of the earlier sentence for larceny (stated as six months when it was in fact three months), and that this error had not been corrected. While this did not change the validity of the head sentences, it was a matter properly taken into account on appeal.

The Court found that the sentencing judge erred in relation to the non-parole period. The combination of the accumulation, and the parole revocation flowing from an offence that attracted only a short sentence fully served well before the new sentences commenced, itself constituted a special circumstance. Together with the appellant's mental illness, these factors required a greater reduction from the statutory ratio than the approximately four per cent discount the sentencing order reflected. When the total period of continuous custody from 26 November 2000 was considered, the effective non-parole period of just over five years against a head sentence of just over seven years represented an inadequate reduction.

The Court granted leave to appeal and intervened to the limited extent of reducing the non-parole period for the robbery in company offence by six months.

Orders Made

  • The non-parole period for the offence of robbery in company was reduced by six months to two and a half years, to date from 14 December 2002 and to expire on 13 June 2005.
  • The overall head sentence remained unchanged, expiring on 13 December 2007.
  • Subject to that adjustment, the appeal was dismissed.

Key Takeaways

  • Pre-sentence custody is a relevant consideration when fixing a non-parole period, even where the custody arises partly from revocation of parole on a separate matter rather than solely from the offences being sentenced.
  • A finding of special circumstances must be meaningfully reflected in the ratio between the non-parole period and the head sentence. A reduction of only approximately four per cent from the statutory ratio was insufficient where multiple special circumstances existed.
  • The combination of partial accumulation on a prior sentence and a parole revocation triggered by a minor offence (for which a short sentence had already been fully served) can itself constitute a special circumstance independent of any mental health considerations.
  • Committing offences while on parole remains a matter of significant aggravation that justifies accumulation of sentences, consistent with the principle in R v Readman.
  • Inaccurate information before a sentencing court, even if originating from the appellant's own legal representatives, remains a matter the Court of Criminal Appeal may take into account when considering whether error has been established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 44(2)

Cases:
- R v Deeble (NSWCCA, 19 September 1991)
- R v McHugh (1985) 1 NSWLR 588
- R v Readman (1990) 47 A Crim R 181