Bol Bol v Australian Federal Police - [2021] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
BOL BOL v AUSTRALIAN FEDERAL POLICE
[2021] SASC 60
Judgment of the Honourable Chief Justice Kourakis
27 May 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
The appellant, Mr Bol Bol, appeals against the sentence imposed by a Magistrate after pleading guilty to the offences of intimidating a crew member contrary to s 20A(1) of the Crimes (Aviation) Act 1991 (Cth) (count 1), behaving in an offensive manner (count 2) and failing to wear a seat belt during the landing of an aircraft (count 3) contrary to reg 256AA(1) and reg 251(a) of the Civil Aviation Regulations 1988 (Cth).
The appellant committed the offences on a Tiger Airways flight from Sydney to Adelaide on 29 August 2019. The appellant was intoxicated at the time of the offending. Mobile phone footage was taken by a passenger of the aircraft which captured of certain aspects of the offending.
After discussions between defence counsel and the prosecution prior to a hearing in the Magistrates Court, the Information was amended and the appellant pleaded guilty to each offence. The Magistrate received a summary of facts from the prosecution but was not provided with the video footage captured by the passenger. The footage was received as evidence on appeal. The Magistrate sentenced the appellant to six months’ imprisonment in respect of count 1 after reducing the sentence from a starting point of eight months’ imprisonment. The Magistrate convicted the appellant on count 2 and 3 without imposing a penalty.
The appellant contends that, inter alia, the sentence was manifestly excessive in respect of count 1 and that the sentencing process as a whole was in error by virtue of an error of law in convicting the appellant on count 2 and 3 without further penalty. The respondent concedes that the sentence was in error as it was not available to the Magistrate to convict without penalty on those counts. The respondent subsequently filed a separate Notice of Appeal (the ‘cross-appeal’) seeking orders that the convictions for count 2 and 3 be set aside and the appellant be resentenced.
Held (Kourakis CJ), allowing the appeals and resentencing the appellant.
1.   The sentencing discretion as a whole was in error, the defence submission could not be evaluated, and could not fairly be rejected, without viewing the footage.
2.   The Magistrate had no power to convict the appellant without penalty on counts 2 and 3. There is a reasonable apprehension that the term of imprisonment imposed on count 1 was calculated to reflect the criminality in all three counts.
3.   It is unnecessary to resolve the question of whether the sentence is manifestly excessive because the sentencing process miscarried by reason of the failure to provide the Magistrate with the video footage.
4.   The appellant is convicted and resentenced to four months’ imprisonment in respect of count 1 commencing 13 January 2021. In respect of count 2 and 3 the appellant is convicted and fined $500 and $100 respectively.
Crimes (Aviation) Act 1991 (Cth) s 20A, 20A(1), s 21(1); Crimes Act 1914 (Cth) s 4J(3), s 19B, referred to.

BOL BOL v AUSTRALIAN FEDERAL POLICE
[2021] SASC 60
Magistrates Appeal – Criminal

KOURAKIS CJ: This is an appeal by Mr Bol Bol against the sentence imposed on 13 January 2021 in the Magistrates Court upon his plea of guilty and conviction of intimidating a crew member contrary to s 20A(1) of the Crimes (Aviation) Act 1991 (Cth) (the Aviation Act) in the course of a Tiger Airways flight from Sydney to Adelaide on 29 August 2019. The maximum penalty for the offence is 10 years imprisonment but the power of the Magistrates Court is limited to imposing a sentence of two years imprisonment and/or a fine of $25,200.[1] The Magistrate had commenced with a notional starting point of eight months, but reduced the term of imprisonment he finally imposed to six months on account of the appellant’s plea of guilty. The appellant also pleaded guilty to offences of behaving in an offensive manner and failing to wear a seat belt. The Magistrate convicted the appellant without further penalty on those counts. I apprehend that the term of imprisonment imposed on count 1 was calculated to reflect the criminality in all three counts.
[1] Crimes Act 1914 (Cth) s 4J(3)(b).
Mr Bol Bol appeals against the sentence of imprisonment on the following grounds:
1.   The learned Magistrate erred in imposing a conviction without penalty in relation to counts 2 and 3 on Information.
2.   The sentencing discretion as a whole was in error.
3.   The learned Magistrate erred in imposing a sentence of imprisonment to be served in total in relation to count 1.
4.   The sentence of 8 months imprisonment reduced to 6 months an account of an early guilty plea to be served immediately is manifestly excessive.
For the reasons which follow, I would allow the appeal on ground 2 but on the basis that the Magistrate did not address and resolve the defence submissions on the proper assessment of the nature and gravity of Mr Bol Bol’s conduct.
Having regard to the video footage of the incidents which, by consent, was received as further evidence on appeal, I would impose a sentence of four months’ imprisonment commencing on 13 January 2021.
On the hearing of the appeal it was common ground that there is no power to convict without penalty on sentencing for Commonwealth offences, and that the sentencing dispositions on counts 2 and 3 should be set aside. The appellant’s counsel submitted that Mr Bol Bol should be discharged without conviction on those counts. The Commonwealth Director opposed the exercise of the power conferred by s 19B of the Crimes Act 1914 (Cth) to discharge the appellant without conviction, and sought a substantive penalty on those counts. However, the imposition of a penalty in addition to a conviction on counts 2 and 3 would have had the effect of imposing a more severe penalty on Mr Bol Bol even though there was no appeal against the inadequacy of the sentence. For that reason, after the hearing of the appeal the Commonwealth Director instituted an appeal (the cross‑appeal) on the following single ground:
The sentences imposed for Count 2 and Count 3 were not authorised by law.
For the reasons that follow, the Director’s appeal on counts 2 and 3 must be allowed. I set aside the orders imposed by the Magistrate and impose a fine of $500 on count 2 and $100 on count 3.
The appellant
The appellant is 29 years of age. In 2005, when still a teenager, he came to Australia from Sudan. He completed year 11 at St Pauls Collage before leaving school to work in construction and warehousing. The appellant was sentenced in 2012 to four months’ imprisonment on a charge of assault and to 21 days’ imprisonment in 2012 on a charge of breaching a bond. Both sentences of imprisonment were suspended. However, in 2015 he was sentenced to an immediate term of three months of imprisonment on charges of assault and trespass.
The offending
In respect of the conduct the subject of count 1, the appellant was first charged by the Australian Federal Police with intimidating a member of a flight crew in a way which obstructed the performance of his duty contrary to s 21(1) of the Aviation Act, which carried a maximum penalty of 14 years. On a review by the Commonwealth DPP a charge of assaulting a member of a flight crew contrary to s 20A(1) of the Aviation Act was substituted. Section 20A(1) provides:
20A Assaulting crew—general
(1) A person commits an offence if:
(a) the person is on board an aircraft; and
(b) the aircraft is a Division 3 aircraft; and
(c) the person assaults, threatens with violence or intimidates another person; and
(d) the other person is a member of the crew of the aircraft.
Penalty: Imprisonment for 10 years.
When the matter was called on before the Magistrate for plea on 23 October 2020 the prosecutor, as a result of an agreement with the appellant’s counsel, amended the Information with respect to that count by substituting the word ‘intimidate’ in place of the word ‘assault’. In the course of the sentencing submissions the prosecutor tendered a summary of facts which had been prepared in support of a charge of assault, and which had not been altered to reflect the substituted charge.
The summary of prosecution facts included the following:
…
4.   The Defendant was seated in seat 5B. Seated next to the Defendant, in seats 5A and 5C were two female passengers.
5.   At 3:34pm, the flight took off from Sydney.
6.   During and after take-off, the Defendant was attempting to speak to the female seated to his right, holding his mobile phone in front of her. He was also playing loud music on his mobile phone.
7.   Approximately 30-40 minutes after take-off, the female passengers … were moved away.
8.   The Defendant then stood up and asked the female passengers to ‘Come back here. Sit over here’ approximately 5-6 times.
9.   The Cabin Manager approached the Defendant and asked him to turn his music off. The Defendant refused, and tried to walk to the front galley. The Cabin Manager repeatedly asked the Defendant to sit down, but the Defendant did not sit down.
10.   A flight attendant then approached and gave the Defendant a bottle of water, and asked him to hand over the bottle of Aloe Vera juice. The Defendant refused to hand over his Aloe Vera juice. The crew member informed the Defendant that if he was not listening, then the aircraft may be diverted to Sydney.
11.   A short time later, the same flight attendant approached the Defendant and asked him for the bottle of Aloe Vera juice. The Defendant did not hand the bottle over, and so the crew member reached in and took it from him.
12.   The Defendant demanded his bottle back, saying ‘Fuck off, give me my bottle back” approximately 3-4 times in a loud voice. He stood up, and walked towards the cockpit, asking that his bottle be returned. The Cabin Manager repeatedly asked the Defendant to sit down, and told him that the aircraft would be diverted back to Sydney if his behaviour did not stop.
13.   The Defendant continually tried to move forward toward the cockpit, and was asking for his bottle back. The Defendant was waving his arms around with clenched fists, and pushed crew members with both hands in a forward motion toward the cockpit. The Defendant then returned to his seat.
…
15.   The Defendant again got out of his seat. This time, two passengers also stood up, positioning themselves in front of and behind the Defendant. The Defendant attempted to push past the passenger blocking the path to the cockpit.
16.   The Cabin Manager and another crew member intervened, with the former repeatedly telling the Defendant that he needs to go back to his seat and sit down. The defendant kept saying that he wanted his alcohol, and kept saying in a loud voice ‘What the fuck? Fuck you’.
17.   The Defendant shoved the Cabin Manager his forearms in a guarding stance. The Cabin Manager had his hands open in a bid to protect himself.
…
20.   Approximately 30 minutes prior to landing, the Defendant returned to his seat. The Defendant continued to occasionally shout at cabin crew about his bottle.
21.   As the aircraft touched down at Adelaide Airport, the Defendant stood up whilst the aircraft continued down the active runway. The seat belt sign was illuminated and the aircraft was moving along the runway towards the gate. Both the crew and passengers were telling the Defendant to sit down, but he refused to do so. He stumbled toward the front of the aircraft saying ‘give me my bottle back’, and fell forwards into the cabin wall. He then returned to his seat.
The appellant was taken into custody by Australian Federal Police at the Adelaide Airport. He recorded a blood alcohol concentration of 0.24g%.
A passenger took video footage on her smartphone of some of the incidents referred to in that summary. The videos were disclosed to the appellant’s counsel but were not provided to the Magistrate.
Video footage taken at 4:10 pm for about 85 seconds shows the appellant attempting to walk along the aisle away from his seat, still holding his Aloe Vera bottle. The appellant gesticulates with his arms as he moves forward. The cabin manager takes hold of the appellant’s wrist as he directs him back to his seat, to which the appellant returns. A video clip taken at 4:38 pm for about 67 seconds shows the two passengers preventing the appellant moving away from his seat and the cabin manager directing him to sit down. One of the passengers uses his forearm to nudge the appellant back towards his seat, and the other taps him on the shoulder. The cabin manager approaches and warns the appellant that if he does not sit down the flight will be diverted to Melbourne. The appellant again gesticulates with his arms whilst clenching his fist. However, there is no indication that he is about to throw a punch, and no allegation that he threatened to do so. The appellant can be seen using his forearm to push against the cabin manager, who is attempting to shepherd him back to his seat. The appellant can be heard telling the cabin manager that he will sit down and he proceeds to do so. Video footage taken at about 5:05 pm of about 18 seconds shows the appellant falling around at the front of the plane where the stewards are seated as the plane taxis towards the terminal.
The summary shows that the offence of intimidating a crew member potentially comprises four incidents:
(1)the confrontation with the cabin manager described in paragraphs [8] to [9] of the summary, which was captured on the video taken at 4:10 pm;
(2)the confrontation and offensive language associated with the appellant’s effort to recover the Aloe Vera juice described in [12] to [13] of the summary, which was not captured on the passenger’s smartphone;
(3)the confrontation with the cabin crew manager after the passengers intervened, described in [16] to [17] of the summary, captured by the smartphone at 4:38 pm; and
(4)the appellant demanding the return of his Aloe Vera, and falling over at the feet of the cabin manager, as the plane taxied, captured by the smartphone at 5:08 pm.
The appellant’s counsel informed the Magistrate that he had viewed the video footage and submitted that:
…
ii)          the footage does show the defendant refusing directions and acting generally disorderly.
iii)         it shows the complainant ‘gently’ holding the defendant’s wrists to guide him back to his seats.
iv)         Although the defendant’s fists are clenched, he does not appear to be brandishing them violently or loudly yelling abusively.
v)          It does appear the defendant has pushed the complainant’s hands away from grabbing hold of his wrists.
vi)         It appears the defendants behaviour is more disorderly and resisting of directions compared to actually assaulting.
vii)        As a consequence of negotiations Prosecution amended the nature of the charge in Count 1 to a charge of ‘intimidating a crew member’.
vii)        The defendant’s was intoxicated and his behaviour was belligerent rather than overtly physically aggressive.
The essential points made in mitigation by the appellant’s counsel were that:
·the appellant’s physical contact with the cabin crew manager was incidental to his attempts to speak to the passengers who had moved away from him, and his attempt to retrieve his drink;
·he did not intend to harm anyone, or event to create an apprehension of imminent harm; and
·the charge was amended to reflect his characterisation of the appellant’s conduct.
In the course of submissions before the Magistrate, the Commonwealth Director did not contend that the applicant should be imprisoned, and accepted that it was within the Magistrate’s discretion not to do so. The Director’s position did not, of course, constrain the Magistrate’s discretion but, inferentially, it supported the characterisation of the appellant’s conduct put by defence counsel.
I observe that in both the summary of facts and the submission there was no precise identification of which of the incidents was the subject of the intimidation offence and which conduct comprised the offensive behaviour. It is difficult to see how the first or fourth incidents could constitute either offence. From the witness statements of the cabin manager and the flight attendant the second and third incidents could properly do so, and appear to treat both incidents as one and the same. Only one witness statement relates the account in paragraphs [12] and [13] of the prosecution summary but, on its face, it is inconsistent with the accounts in the statements of the flight crew.
The Magistrate described the appellant’s offending as follows:
You did this several times in a loud voice. You stood up and you walked towards the front of the plane again demanding return of your bottle of aloe vera and again you were asked many times to sit down. Again you were told the plane will be diverted to Sydney if you did not return to your seat.
You continually tried to move forward toward the cockpit, continually asking for your bottle, waving your arms around, clenching your fists, pushing crew members around and trying to move forward. You went to the toilet and when you came back, you had your music playing again, you were told to turn it off and again you were argumentative you got out of your seat and eventually with the aid of some passengers you were affectively hemmed in and your path was blocked. The cabin manager and another crew member intervened. You were constantly asked to sit down. Your response was to yell loudly;
“What the fuck, fuck you.”
You pushed the cabin manager, and were acting in a threatening way towards him. Eventually a call was made to the Australian Federal Police and when you arrived at the airport you were taken into custody by Australian Federal Police. You were taken into the city watch house and when you got there you recorded a blood alcohol reading of .240. That is a very high reading and no doubt it was higher than that when you got on the plane which no doubt explains your behaviour.
I can only imagine how frightening it must have been for the people in the plane with you. An aircraft is a confined environment, there is nowhere to go. In an aircraft we all rely upon everyone on the plane to behave and to respond positively to the directions from the cabin crew. If there is a drama there is nowhere for the other passengers to go. In this case other passengers must have been extremely concerned and frightened by your behaviour.
The Magistrate’s description appears to have been taken from the prosecution summary which had been prepared in support of the charge of assault. The Magistrate’s reasons do not address the submission of defence counsel, which was based on a viewing of the video footage. However, neither the prosecution nor the defence provided that video footage to the Magistrate.
The defence submission could not be evaluated, and could not fairly be rejected, without viewing the footage. Both the appellant and the Commonwealth Director agreed that the video footage ought to have been provided, and that I should receive the video footage as further evidence.

I have viewed the video footage. The appellant can be seen to gesticulate with his arms with his fists clenched, but there is no indication that he intended to punch or threaten anyone by doing so. The appellant is a tall man. It appeared to me that, by closing his fist, he was attempting to keep his hands out of the way, or perhaps it was a mannerism of his to do so. The video footage shows some pushing and shoving, with the appellant using his forearms. The one witness who spoke of pushing with open hands is not consistent with the statements of the flight crew. The appellant appears to be drunk and at times smiles broadly. In his witness statement the cabin manager described the appellant’s conduct as ‘borderline aggressive’. I think that is an apt description.
The appellant’s conduct undoubtedly disrupted the work of the flight crew and placed them in considerable fear. However, no physical harm was caused. The charges of intimidating the flight crew members and acting offensively properly address the criminality of his conduct. The appellant’s offending was no doubt annoying to all of the passengers on the flight and I accept that some at least of them would have been frightened. Conduct of this kind is disturbing in any setting but as the Magistrate observed it takes on a more worrying dimension when it occurs in the confines of an airplane.
No doubt the appellant’s conduct was due in no small part to the fact that he was very drunk. Of course, his intoxication is not a mitigating factor. It is an aggravating factor in the commission of offences of this kind. Offences of this kind are more likely to be engaged in by people who are intoxicated and it is important that the penalties imposed deter passengers not only from engaging in conduct of this kind, but from boarding flights when their intoxication poses a greater risk that they will do so. In this respect, the appellant’s prior offending is significant.
It is also important that flight crew who bear the responsibility for the safety of their passengers are protected from behaviour of this kind.
However, it is an overstatement to say that the other passengers must have been ‘extremely frightened’. From the video footage one young woman appears relieved when the appellant sat down, but not frightened. The two male passengers who hemmed the appellant in seemed calm and confident. Nor was the conduct comprising counts 1 and 2 long lasting. I accept that the video footage may not have captured all of it. However, from that footage and the descriptions of the flight crew, I estimate that it continued for about three to four minutes.
Turning to the appellant’s personal circumstances, I observe that the difficulty of integrating into the Australian community after having suffered the traumatic experiences of fleeing the persecution and violence of South Sudan cannot be underestimated. It is to his credit that he completed year 11 and has found gainful employment since then. Even though imprisonment is undoubtedly demanded by his offending, the response should be measured so that he may be encouraged to return to employment and attempt to make a positive contribution to his family and the community. I accept that the sentence imposed by the Magistrate is a relatively heavy one for this offending. Outside of the flight context a much lesser period of imprisonment would be imposed for conduct of this kind. However, an assessment of whether a penalty is manifestly excessive is a difficult one.
Ultimately, I need not resolve that question, because the sentencing process miscarried by reason of the failure to provide the Magistrate with the video footage.
I can proceed to sentence afresh.
I would commence with a starting point before the appellant’s plea of 21 weeks’ imprisonment. I would reduce that term having regard the appellant’s plea of guilty to four months. I order that the sentence commence on 13 January 2021. The appellant was released on bail between 18 and 29 March 2021. In that period he will not be taken to have been serving a sentence. Nonetheless, the appellant has now served his sentence and should be released forthwith.
On count 2, I convict the appellant and impose a fine of $500.
On count 3, I convict the appellant and fine him $100.