Bolamatu v The Queen

[2003] NSWCCA 58

CITATION:	Bolamatu v R [2003] NSWCCA 58
HEARING DATE(S):	10/03/03
JUDGMENT DATE:	14 March 2003
JUDGMENT OF:	Meagher JA at 1; Dowd J at 13; Barr J at 14
DECISION:	1. Appeal against conviction dismissed; 2. Leave to appeal against sentence refused.
CATCHWORDS:	Inconsistent verdicts - different ingredients - aggregation or cumulation of sentences.
CASES CITED:	R v Kirkman (1987) 44 SASR 591 MFA v The Queen [2002] HCA 53
PARTIES :	Bolamatu v Regina
FILE NUMBER(S):	CCA 60887 of 2001
COUNSEL:	A: B T Stratton R: W G Dawe QC
SOLICITORS:	A: Leon Goldberg R: S E O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0176
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

CCA 60887 of 2001

MEAGHER JA
DOWD J
BARR J

Friday, 14 March 2003

BOLAMATU v REGINA

FACTS

On 30 October 2001 the appellant was indicted before Shadbolt DCJ at the Sydney District Court on four counts. All four counts were tried before his Honour and a jury of twelve. The first two of these concerned an alleged assault by the appellant on a Naomi Bashford on 25 November 2000. In respect of these two counts, the jury returned a verdict of guilty on one count and not guilty on the other. No complaint was made in respect of these verdicts. The third and fourth counts alleged respectively, that (a) the appellant did use an offensive instrument (a motor vehicle) with intent to prevent a member of the police force from investigating any acts or circumstance which reasonably called for investigation, and (b) that the appellant did assault a police officer while in the execution of her duty and by the assault did occasion her actual bodily harm.

The facts are recited in the judgment of Meagher JA hereunder. The appellant pleaded not guilty to the third and fourth charges. The jury returned a verdict of not guilty to the third charge, but guilty to the fourth. The appellant’s contention was that these two verdicts were inconsistent.

HELD

i. The verdicts were not inconsistent. An ingredient in one charge is the intention of preventing a police officer from investigating a matter calling for investigation. That ingredient was absent from the other charge. Moreover, it is possible that the jury never turned their minds to that ingredient.

ii. The appellant’s argument was that the judge below was not justified in aggregating the two sentences (each of which was close to the maximum).

Each offence (common assault and assaulting a police officer) is very different, and the victims are different. Each crime was close to being as reprehensible as that crime can be, and therefore could be seen as demanding something like the maximum possible sentence.

ORDERS

i. Appeal against conviction dismissed;

ii. Leave to appeal against sentence refused.

CCA 60887 of 2001

MEAGHER JA
DOWD J
BARR J

Friday, 14 March 2003

BOLAMATU v REGINA

Judgment

1 MEAGHER JA: On 30 October 2001 the appellant, Mr Albert William Bolamatu, was indicted before his Honour Judge Shadbolt at the Sydney District Court on four counts. All four counts were tried before his Honour and a jury of twelve. Two of these concerned an alleged assault by Mr Bolamatu on a Naomi Bashford on 25 November 2000. In respect of these two counts, the jury returned a verdict of guilty on one count and not guilty on the other. No complaint is made in respect of these verdicts.

2 The other two counts were as follows:

Count 3
That Albert Bolamatu on 25 November 2000 at Malabar in the State of New South Wales did use an offensive instrument, a motor vehicle, with intent to prevent a member of the police force, Constable Joanna Lincoln, from investigating any acts or circumstance which reasonably called for investigation.
(Section 33B(1) Crimes Act 1900. Maximum penalty: imprisonment for 12 years).

Count 4 (in the alternative to Count 3)
That Albert Bolamatu on 25 November 2000 at Malabar in the State of New South Wales did assault a police officer, Constable Joanna Lincoln, while in the execution of her duty and by the assault did occasion her actual bodily harm.
(Section 60(2) Crimes Act 1900. Maximum penalty: imprisonment for 7 years).

3 Mr Bolamatu pleaded not guilty to both these charges. The jury returned a verdict of not guilty to the former charge, but guilty to the latter. The appellant’s contention is that these two verdicts are inconsistent.

4 The facts may be briefly recited. Mr Bolamatu, the appellant, and his brother on 25 November 2000 went to the flat of Miss Naomi Bashford at Malabar (which is a suburb of Sydney) and successfully “trashed” that flat, with much noise and violence. They had previously parked their motorcar, a Holden Barina, in the parking lot adjacent to the block of flats in question. They went back to the car after they left Miss Bashford’s flat.

5 The noise from their activities was so great that another resident in the same block of flats made contact with the police, and asked them to come. Two police officers, Constable Craig Atkins and Constable Joanna Lincoln, arrived, parking their car on the roadway near the parking lot. They alighted from their car and approached the building. Either before they entered the building, or shortly thereafter, their attention was drawn to the Holden Barina.

6 Then Constable Lincoln, according to her evidence, endeavoured to stop the car as it was taking off. She stood in front of it, holding up one hand in a gesture signifying “Halt”, and cried out “Stop”. It did not stop, but ran her over. The appellant, who was the driver, said in his evidence that he did not see her. She was gravely injured. The jury obviously preferred her evidence to his.

7 It is said that the two verdicts are inconsistent. The tests to be applied to test consistency or inconsistency are those set out in R v Kirkman (1987) 44 SASR 591 and MFA v The Queen [2002] HCA 53. But the answer to this contention is clear: the verdicts are not inconsistent. An ingredient in the former charge is the intention of preventing a policeman from investigating a matter calling for investigation. That ingredient is absent in the latter charge. It is quite possible that the jury never even thought of this matter. It is quite possible the jury thought that to knock over a policeman was a small price to pay for a quick getaway.

8 His Honour sentenced Mr Bolamatu to imprisonment for 6 years, with a non-parole period of 4 years 3 months, but to commence on 24 May 2002. The reason the commencement date was chosen was because in respect of the assault charge on Naomi Bashford on which the appellant was found guilty, he sentenced the appellant to imprisonment for 18 months, with a non parole period of 12 months, to expire on 23 May 2002. In other words, his Honour made the two sentences consecutive, one on the other. Leave is sought to appeal against the sentence.

9 The appellant’s argument is that his Honour was not justified in aggregating the two sentences, each of which was very close to the maximum. It is submitted that this approach was too severe in two respects. First that each offence did not call for a sentence so close to the maximum; and secondly that the events did not call for an accumulation of the two.

10 These two submissions do not impress me. Each offence (common assault and assaulting a police officer) are very different, the victims were different. Each crime was close to being as reprehensible as that crime can be, and therefore could be seen as demanding something like the maximum possible sentence.

11 Moreover, there can be no objection in these circumstances for his Honour to indulge in a measure of cumulation.

12 In my view the following orders should be made:

1. Appeal against conviction dismissed.
2. Leave to appeal against sentence refused.

13 DOWD J: I agree with Meagher JA.

14 BARR J: I agree with Meagher JA.

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Last Modified: 03/17/2003