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Court of Criminal Appeal 10 December 2020

Bolin v R

[2020] NSWCCA 332

Assault & violenceDomestic & family violencePublic order & justice offences
SENTENCING AGGREGATE SENTENCE ERROR IN FIXING COMMENCEMENT AGGREGATE SENTENCE MANIFEST EXCESS ONE COURSE OF OFFENDING CONDUCT

Citation: Bolin v R [2020] NSWCCA 332
Court: Court of Criminal Appeal, NSW
Date: 10 December 2020
Judges: Basten JA at [1]; Johnson J at [25]; Davies J at [26]

Background

The appellant was sentenced in the District Court at Campbelltown in November 2019 for three offences arising from a sustained episode of domestic violence against his former de facto partner on the evening of 30 September and the morning of 1 October 2018. The offences were aggravated entry into a dwelling with intent to commit a serious indictable offence (namely intimidation), intimidation, and contravening an apprehended domestic violence order (ADVO). The offending occurred while the appellant was already on bail for an earlier assault and ADVO contravention involving the same victim.

The District Court imposed an aggregate sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months, commencing 2 April 2019. That sentence was intended to be partly accumulated on an earlier Local Court sentence of 9 months imposed in December 2018, which had been backdated to 2 October 2018 and carried a non-parole period expiring 1 March 2019.

The appellant sought leave to appeal on two grounds: first, that the commencement date of the new sentence contained an error; and second, that the aggregate sentence was manifestly excessive.

  • Whether the commencement date of the District Court's aggregate sentence was erroneous, given the sentencing judge's stated intention that it be partly accumulated on the earlier sentence.
  • Whether the aggregate sentence of 4 years and 6 months was manifestly excessive, having regard to the degree of notional accumulation applied to sentences for offences arising from a single course of conduct.

Decision

On the commencement date issue, the Court of Criminal Appeal found a clear discrepancy between the sentencing judge's stated intention and the date actually fixed. The judge had intended the new sentence to be partly accumulated on the earlier Local Court sentence. For that intention to be given effect, the new sentence should have commenced when the non-parole period of the earlier sentence expired, namely 2 March 2019, rather than 2 April 2019 as announced. The DPP accepted this error on appeal.

On manifest excess, the Court accepted that the sentencing judge's assessments of objective seriousness and the appellant's subjective circumstances were each unexceptionable. However, Basten JA identified an awkward result in the indicative sentences: the intimidation offence, assessed as above the mid-range and extending across two periods, attracted a lower indicative sentence than the aggravated entry offence, which carried a maximum of 14 years compared to 5 years for the intimidation charge. More significantly, the degree of notional accumulation in the aggregate sentence (approximately 78 to 80 per cent of the sum of individual sentences) was too high given that all three offences arose from one course of conduct.

The Court held that a higher degree of concurrency was warranted. Notionally, the ADVO contravention sentence should have been wholly concurrent with the aggravated entry sentence, with both commencing 2 February 2019, and the intimidation sentence commencing 2 February 2020. That approach produced an aggregate of 3 years and 3 months. The Court maintained the finding of special circumstances but held a non-parole period of no less than 2 years was necessary to reflect the seriousness of the offending. The resulting balance of term of 15 months was acknowledged as nearly double the default proportion under the legislation, reflecting the special circumstances finding.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed by the District Court on 8 November 2019 quashed.
  • Appellant resentenced to a non-parole period of 2 years' imprisonment commencing 2 February 2019 and expiring 1 February 2021, with a balance of term of 15 months expiring 1 May 2022.
  • Appellant first eligible for release on 1 February 2021.

Key Takeaways

  • Where a sentencing judge intends a new sentence to be partly accumulated on an earlier sentence, the appropriate commencement date is the date the non-parole period of the earlier sentence expires, not a later date. A failure to fix that date consistently with the stated intention constitutes an error susceptible to correction on appeal.
  • A sentence imposing aggregate terms for offences arising from a single course of conduct should reflect a high degree of concurrency among the individual indicative sentences. Accumulating approximately 78 to 80 per cent of the sum of individual sentences was found to be excessive in these circumstances.
  • Under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), a statutory parole order would have applied from the expiry of the non-parole period of the earlier sentence, reinforcing the importance of correctly aligning the commencement date.
  • The Court of Criminal Appeal confirmed that an awkward relationship between indicative sentences (where a more serious offence attracts a lower indicative term due to differences in statutory maxima) does not of itself establish error, but it can inform the assessment of whether the aggregate is proportionate.
  • Maintaining a finding of special circumstances does not automatically reduce the non-parole period below a floor reflecting the objective gravity of the offending. Here, a 2-year non-parole period was treated as the minimum consistent with the seriousness of the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 111(2) (aggravated entry into a dwelling)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation) and s 14(1) (contravene ADVO)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B) (default non-parole period proportion)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158 (statutory parole order)

Cases: No cases were cited in the portions of the judgment provided.