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14
Court of Criminal Appeal 26 March 2012

Bolt v Regina

[2012] NSWCCA 50

Assault & violence
CRIME SENTENCING

Citation: Bolt v Regina [2012] NSWCCA 50
Court: Court of Criminal Appeal, New South Wales
Date: 26 March 2012
Judges: Beazley JA, Harrison J, McCallum J

Background

The appellant pleaded guilty in the District Court to aggravated breaking and entering and committing a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900. The underlying offence was assault occasioning actual bodily harm against his former partner, whom he attacked in her home in the early hours of 3 April 2010. The aggravating circumstance was his knowledge that she was present in the home when he broke in.

On 4 March 2011, the District Court sentenced the appellant to a total term of five years' imprisonment, with a non-parole period of three years and six months. That sentence incorporated a 25% discount for the utilitarian value of the guilty plea.

Seven months after sentencing, the High Court delivered its decision in Muldrock v The Queen [2011] HCA 39, which overturned the longstanding approach to standard non-parole periods established by the NSW Court of Criminal Appeal in R v Way. The appellant then sought leave to appeal out of time, arguing that his sentence had been infected by the error Muldrock identified.

  • Whether the sentencing judge applied the erroneous two-staged approach to standard non-parole periods as identified in Muldrock v The Queen.
  • Whether the sentence should be quashed and the appellant resentenced.
  • What was the appropriate sentence given all relevant factors, including the appellant's personal circumstances, youth, and prospects of rehabilitation.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. McCallum J (with Beazley JA and Harrison J agreeing) found that the sentence passed in the District Court had been affected by the approach condemned in Muldrock. At the time of sentencing, that approach, derived from R v Way, had been unexceptionable. However, the High Court's subsequent ruling required the appeal court to intervene.

The Way approach required a sentencing judge first to assess where in the range of objective seriousness the particular offence fell. If the offence was assessed as falling in the middle of that range, the standard non-parole period operated as a mandatory starting point, with the judge then considering whether individual factors justified a departure. The High Court in Muldrock held this two-staged method was wrong. The correct approach, the High Court said, is to identify all relevant sentencing factors, including the prescribed standard non-parole period, and make a single value judgment as to the appropriate sentence.

Proceeding to resentence, the Court considered the seriousness of the offending alongside the appellant's significant personal circumstances. Those circumstances included a profoundly difficult childhood marked by parental substance abuse, foster care, physical abuse, early substance dependency, and mental illness. The Court also noted the appellant's youth (aged 19 at the time of the offence), genuine remorse, and demonstrated steps towards rehabilitation taken since sentence. A finding of special circumstances was made, warranting a longer parole period to allow for intensive supervision and support.

The Court reduced the non-parole period from three years and six months to two years and six months, maintaining the balance of term at eighteen months, producing a total sentence of four years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed at first instance quashed.
  • Appellant resentenced to imprisonment with a non-parole period of two years and six months commencing 12 April 2010 and expiring 11 October 2012, and a balance of term of eighteen months expiring 11 April 2014.

Key Takeaways

  • Following Muldrock v The Queen [2011] HCA 39, sentences passed under the R v Way methodology are liable to be quashed on appeal where the erroneous two-staged approach to standard non-parole periods can be identified in the sentencing judge's reasoning.
  • The correct approach under ss 54A and 54B of the Crimes (Sentencing Procedure) Act 1999 requires the sentencing court to treat the standard non-parole period as one of several relevant factors, not as a mandatory starting point for offences assessed as falling in the middle of the range of objective seriousness.
  • A significant and troubled personal history, combined with youth and genuine prospects of rehabilitation, can weigh materially in mitigation and justify a reduced non-parole period.
  • Special circumstances warranting a longer parole period may be found where an offender will require intensive supervision and community support upon release.
  • In resentencing, the Court noted the limited usefulness of comparable cases in the sentencing exercise, while acknowledging they can provide some guidance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A, 54B, Division 1A of Part 4

Cases:
- Muldrock v The Queen [2011] HCA 39
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Butler v R [2012] NSWCCA 23
- R v McEvoy [2010] NSWCA 110