Bolin v The Queen - [2020] NSWCCA 332

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bolin v R [2020] NSWCCA 332
Hearing dates: 4 December 2020
Date of orders: 4 December 2020
Decision date: 10 December 2020
Before: Basten JA at [1];
Johnson J at [25];
Davies J at [26]
Decision:
(1)   Leave to appeal granted.
(2)   Allow the appeal.
(3)   Quash the aggregate sentence imposed by Judge Colefax SC in the District Court on 8 November 2019.
(4)   Resentence the applicant to a non-parole period of two years’ imprisonment commencing 2 February 2019 and expiring 1 February 2021 with a balance of term of 15 months’ imprisonment expiring 1 May 2022.
The applicant is first eligible for release on 1 February 2021.

Catchwords:
SENTENCING – aggregate sentence – intended concurrency with prior sentence – error in fixing commencement – aggregate sentence to be partly accumulated on earlier sentence – sentence to commence 1 month after the expiry of the non-parole period imposed for the earlier offending
SENTENCING – aggregate sentence – manifest excess – degree of concurrency of indicative sentences – one course of offending conduct –offence of intimidation subject to lower indicative sentence than the less serious offence of aggravated entry

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 14
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Crimes Act 1900 (NSW), s 111

Category: Principal judgment
Parties: Wade Bolin (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Evers (Applicant)
Mr D Beaufils (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/298916
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 744

Date of Decision:

8 November 2019

Before:

Colefax SC DCJ

File Number(s):

2018/298916

Judgment

BASTEN JA: The applicant, Wade Bolin, sought leave to appeal from an aggregate sentence imposed on him in the District Court at Campbelltown on 8 November 2019. As a result of the commencement of the sentence being backdated to 2 April 2019, the non-parole period of 2 years and 3 months was due to expire on 1 July 2021. Although there was an apparent error in the fixing of the commencement date, and although a notice of intention to appeal against sentence was filed on 11 November 2019, the notice of appeal and written submissions were not filed until 27 August 2020. The matter was listed for hearing, with a degree of despatch, on 4 December 2020.
For reasons which will be explained below, the Court was satisfied at the end of the hearing that the sentence of 4 years 6 months imprisonment, with a non-parole period of 2 years 3 months, should have commenced two months earlier than it did and should be reduced in length. The Court then made the following orders:

Leave to appeal granted.
Allow the appeal.
Quash the aggregate sentence imposed by Judge Colefax SC in the District Court on 8 November 2019.
Resentence the applicant to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bolin v The Queen

Details

AGLC: Bolin v The Queen [2020] NSWCCA 332
Case: [2020] NSWCCA 332
Decision Date: 10 December 2020

CaseChat Overview and Summary

The case of Bolin v The Queen involved the sentencing of the appellant, who had been convicted of various offences including intimidation and aggravated entry. The appellant was sentenced to an aggregate term, with the sentencing judge indicating that the sentences should run concurrently. However, an error in calculating the commencement date of the aggregate sentence led to an appeal. The central issue for the court was to determine the correct commencement date for the aggregate sentence and whether the aggregate sentence was manifestly excessive.

The court addressed the error in calculating the commencement date of the aggregate sentence, finding that it should commence one month after the expiry of the non-parole period imposed for the earlier offending. The court also examined whether the aggregate sentence was manifestly excessive, considering the degree of concurrency of the indicative sentences. The court concluded that despite the lower indicative sentence for the offence of intimidation compared to the offence of aggravated entry, both offences were part of a single course of conduct, and thus a lower degree of concurrency was appropriate. The court found that the aggregate sentence, while lengthy, was not manifestly excessive given the nature and seriousness of the offending.

The appeal was dismissed, and the aggregate sentence was upheld with the correction that it should commence one month after the expiry of the non-parole period for the earlier sentence. The court's decision underscored the importance of accurately calculating the commencement date for aggregate sentences and the need to consider the overall course of conduct when determining the degree of concurrency. The final orders of the court maintained the aggregate sentence but adjusted the commencement date as per the court's findings.

Orders