Bolt v R

[2012] NSWCCA 50

Court of Criminal Appeal

New South Wales

Case Title:	Bolt v Regina
Medium Neutral Citation:	[2012] NSWCCA 50
Hearing Date(s):	26 March 2012
Decision Date:	26 March 2012
Jurisdiction:
Before:	Beazley JA Harrison J McCallum J
Decision:	Appeal allowed. Sentence imposed at first instance quashed and in lieu thereof applicant sentenced to a term of imprisonment with a non-parole period of two years and six months commencing on 12 April 2010 and expiring on 11 October 2012 and a balance of term of eighteen months expiring on 11 April 2014
Catchwords:	CRIME - sentencing - offender sentenced before the decision of the High Court in Muldrock v R - whether sentence entailed error of the kind identified in that decision
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Butler v R [2012] NSWCCA 23 Muldrock v The Queen [2011] HCA 39 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v McEvoy [2010] NSWCA 110
Texts Cited:
Category:	Principal judgment
Parties:	Joshua Bolt (Applicant) Crown (Respondent)
Representation
- Counsel:	Counsel: D Barrow (Applicant) S Bowers (Crown)
- Solicitors:	Solicitors: Brian Sandland (Applicant) Solicitor for Public Prosecutions (Respondent)
File number(s):	2010/ 89624
Decision Under Appeal
- Court / Tribunal:
- Before:	His Honour Judge Sorby
- Date of Decision:	04 March 2011
- Citation:
- Court File Number(s)	2010/ 89624
Publication Restriction:	Nil

JUDGMENT

1. BEAZLEY JA: The Court is in a position to give judgment now. McCallum J will give the first judgment.

2. McCALLUM J: I am of the view that leave to appeal should be granted and that the appeal should be allowed. My reasons for reaching that conclusion are as follows.

3. On the evening of 3 April 2010, the applicant broke into the home of his former partner, Ms Leigh Cameron, and violently assaulted her. He was charged with an offence of aggravated breaking and entering and committing a serious indictable offence, contrary to s 112(2) of the Crimes Act 1900. The serious indictable offence on which the charge was founded was the offence of assault occasioning actual bodily harm. The circumstance of aggravation was the applicant's knowledge that Ms Cameron was in the home at the time he broke into it.

4. The maximum penalty for an offence under s 112(2) is imprisonment for 20 years. The offence carries a standard non-parole period of five years under division 1A of part 4 of the Crimes (Sentencing Procedure) Act 1999.

5. The applicant pleaded guilty in the Local Court and was committed for sentence to the District Court, where he adhered to that plea. On 4 March 2011, he was sentenced by the Honourable Sorby DCJ to a term of imprisonment with a non-parole period of three years and six months and a balance of term of eighteen months. The sentence had been discounted by twenty-five percent to reflect the utilitarian value of the plea. Accordingly, the starting point before applying the discount must have been an overall sentence of six years and eight months with a non-parole period of four years and eight months.

6. The applicant seeks leave to appeal against the sentence imposed. The only issue raised by the appeal is the correctness of the learned sentencing judge's treatment of the standard non-parole period. At the time sentence was passed, the judge's approach to that factor in the sentencing process would have been regarded as unexceptionable. However, on 5 October 2011, seven months after the applicant was sentenced, the High Court delivered its decision in the matter of Muldrock v The Queen [2011] HCA 39. The effect of that decision was to overturn a long line of authority as to the proper application of the provisions relating to prescribed standard non-parole periods.

7. The present application was lodged shortly after the publication of the decision in Muldrock. The commencement of the appeal out of time has been rectified by an extension of time granted on 25 October 2011.

8. The issue raised by the appeal may be stated shortly. A standard non-parole period prescribed under the Crimes (Sentencing Procedure) Act represents the non-parole period for an offence in the middle of the range of objective seriousness for the offence in question: s54A(2) of the Act. Section 54B(2) of the Act provides that, when passing sentence for an offence that carries a standard non-parole period, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter.

9. Since 2004, the approach to that task has been governed by the decision of this Court in R v Way (2004) 60 NSWLR 168. Way marked the beginning of a line of authority which was understood to require a sentencing judge first to make an assessment as to where in the range of objective seriousness for the offence in question the particular offence stood. If the offence was assessed to be in the middle of the range, the judge then inquired whether there were factors in the individual case justifying a longer or shorter non-parole period than the prescribed standard non-parole period.

10. Even in cases where the offence was not assessed to be in the middle of the range, the approach was heavily influenced by the judge's assessment as to where the individual offence fell in the hypothetical range. The standard non-parole period was understood to guide the court accordingly: see for example R v McEvoy [2010] NSWCA 110 from [68] especially at [90]-[92] per Simpson J; Grove and R A Hulme JJ agreeing at [1] and [116] respectively.

11. In Muldrock, the High Court held (at [25]) that Way was wrongly decided. Specifically, the Court held that it was an error to characterise s 54B(2) as being framed in mandatory terms, requiring the Court to take the standard non-parole period as the starting point for an offence assessed as being in the middle of the range. The Court held that the correct approach was to identify all the factors relevant to sentence (including any prescribed standard non-parole period) and make a value judgment as to the appropriate sentence given all those factors (at [26]). The Court specifically rejected the two-staged approach of beginning with an assessment as to whether the offence fell within the middle of the hypothetical range and, if it did, turning to the inquiry as to matters that justify a longer or a shorter period (at [28]).

12. The critical question in the present appeal is whether the sentence passed on the applicant entailed the erroneous approach identified in Muldrock.

Circumstances of the offence

1. The circumstances of the offence were set out in a statement of facts tendered at the proceedings on sentence (exhibit 1). The applicant and Ms Cameron had been in a relationship for about two and a half years until 2009. They have a young son who was not living with Ms Cameron at the time of the offence, evidently due to fear of violence from the applicant.

2. The relationship between Ms Cameron and the applicant had been marked by violence. An apprehended violence order prohibiting the applicant from contacting Ms Cameron was in force at the time of the offence.

3. On the evening of the offence, Ms Cameron went to bed at about 7.30 pm. She was on her own and was about seven weeks pregnant to her new partner at that time.

4. At about 2.00 am the following morning, Ms Cameron awoke and found the applicant screaming at her. The next thing she remembers is finding herself sitting in the lounge room covered in blood. The applicant was standing in front of her repeatedly apologising. She asked to be taken to hospital and he initially refused, fearing that he would be "locked up". However, after Ms Cameron became upset, the applicant rang '000' requesting an ambulance. He lied to the operator, saying that Ms Cameron had broken her nose as a result of a fall.

5. Upon arrival at the hospital, Ms Cameron initially said nothing about the assault, as the applicant was present. He later left and she took the opportunity to inform a nurse that the applicant had assaulted her and that there was an apprehended violence order in force. The applicant later returned to the hospital and started a fight with Ms Cameron's partner. He was removed from the emergency room by hospital security staff and later arrested.

6. Ms Cameron had a swollen and bleeding nose. She was also suffering nausea, severe headaches and vomiting. CT scans revealed a comminuted fracture of both nasal bones and of the perpendicular plate of the ethenoid bone with subsequent deviation of the nasal septum.

Circumstances of the applicant

1. At the proceedings on sentence, reports were tendered from a psychologist, Rena Nasr, and a forensic psychiatrist, Dr Richard Furst. The applicant gave evidence at the hearing and said that he had given an honest history to those two professionals.

2. In his evidence, the applicant acknowledged dependency on drugs and alcohol and difficulty managing his anger. He said he had resorted to the use of drugs and alcohol from an early age and acknowledged that he needed to find other ways of coping with grief. He stated that he was "really sorry" for what he had done and that he was going to use his time in jail to get the help that he needed.

3. Separately, the applicant wrote a letter to the Court, which was tendered at the hearing. The letter reveals genuine remorse, a complete acceptance of responsibility by the applicant for his conduct and what appears to be a genuine commitment to rehabilitation.

4. The applicant's reference to his need to find alternative ways of coping with grief is amply explained in the reports of the two professionals to which I have referred. The applicant's mother died of a drug overdose when he was three years old. His father also had problems with substance abuse as a result of which the applicant and his siblings were placed in foster care for three years following their mother's death.

5. When the applicant was six years of age he was returned to the care of his father, who he says used to "bash him with sticks". On one occasion his father broke his arm, following which he was removed from the father's care and placed with different families until ultimately being placed with his grandmother in Sydney. The applicant described her as an alcoholic who often left him and his brother at home alone. He said she was a "hard woman" who physically and verbally abused the children and imposed harsh forms of discipline on them including occasionally kicking the applicant out of home and leaving him to sleep in the park.

6. Unsurprisingly, the applicant's personal circumstances reflect that difficult background. He experienced behavioural problems from an early age, which disrupted his education. He was diagnosed with ADHD at the age of nine years. He has had little work experience. Noting his background of violence and abuse at the hands of his father, combined with his history of early and severe substance abuse, the psychologist Rena Nasr identified "cognitive and behavioural concerns" which she thought warranted further neurological assessment. The applicant described the majority of his friends as "unstable and antisocial people", many of whom are "either locked up or dead". His teenage years saw extensive abuse of alcohol, cannabis, amphetamines and heroin. He told Ms Nasr that he has also experimented with cocaine, benzodiazepines and hallucinogens.

7. The psychiatrist, Dr Furst, reported that the applicant was diagnosed with schizophrenia whilst in juvenile detention, for which he was treated with antipsychotic medication. He continued that treatment for a period but stopped in 2009 when he returned to abusing illicit drugs. He was not taking antipsychotic medication at the time of the offence.

8. Dr Furst expressed the opinion that the applicant's schizophrenia was likely to have been precipitated by his adolescent substance abuse and that the effects of ongoing drug abuse combined with periods of non-compliance with his anti-psychotic medication exacerbated his underlying condition. Dr Furst said:

   Although he was probably psychotic at the time in question on 3rd April 2010, there is no suggestion that he was unaware of the wrongfulness of his actions or had the mental illness defence available to him. It is more likely that his underlying schizophrenia had the effect of making him more prone to impulsive violence, especially when intoxicated, as it often affects the capacity of an individual to reason calmly and restrain behaviour.

Remarks on sentence

1. The Judge observed that the facts revealed an objectively serious offence, as undoubtedly they did. Separately, the Judge noted the aggravating feature that the offender was on a good behaviour bond in relation to the same victim at the time. He proceeded (as required under the law as it then stood) to state his assessment as to where along the range of objective seriousness the offence stood, saying:

   The nature of the assault - in the middle of the night, with a young defenceless woman in her own home, together with the injury she received, places this offence just below the mid-range of objective seriousness for this type of offence.

2. The Judge then turned to consider the subjective factors in the applicant's favour and set out many of the circumstances to which I have already referred. His Honour accepted that the applicant was remorseful and that he had shown insight into his offending in his letter to the Court. He noted the applicant's record but observed that there was no prior matter as serious as the present offence.

3. The Judge referred to the opinions of Dr Furst and made a finding that the applicant's need for ongoing treatment and rehabilitation amounted to a special circumstance such as to warrant a variation of the statutory ratio of the balance of term to the non-parole period of the sentence (prescribed in s 44(2) of the Crimes (Sentencing Procedure) Act 1999). The amount by which the balance of the term exceeded that ratio was four months (an additional one-tenth of the non-parole period).

4. The Judge did not expressly consider any causal connection of the applicant's mental condition to the commission of the offence: cf Muldrock at [22]. Dr Furst evidently accepted that there was such a connection, describing the applicant's underlying schizophrenia as a factor that made him more prone to impulsive violence. I accept, however, that the Judge took the applicant's mental condition into account, at least to the extent of acknowledging that it reduced the need for general deterrence.

5. Turning to consider the appropriate sentence, the Judge repeated the fact that the offence carried a standard non-parole period of 5 years noting that it served only as a guideline in this case in light of the plea. His Honour then summarised the relevant factors and, balancing all those factors, reached the sentence imposed.

6. The critical question raised by the appeal is whether the Judge's decision entailed error of the kind identified by the High Court in Muldrock. I am persuaded that it did. First, it would hardly be surprising if the decision entailed the application of the principles overturned in Muldrock, since the sentence was passed before that case was decided. In those circumstances, a finding of error would plainly entail no criticism of the learned sentencing Judge. His Honour was bound to apply the principles stated in Way and reaffirmed in many subsequent decisions of this Court.

7. As explained by the High Court in Muldrock, the error of that approach was that it treated s 54B(2) as being framed in mandatory terms. The two-staged process described above was a reflection of that wrong understanding.

8. The Crown noted the Judge's remark that the standard non-parole period was "a guideline only, as there was a plea". She submitted that those remarks pointed against the suggestion that the Judge used the standard non-parole period as a starting point and, in support of that submission, relied upon the decision of this Court in Butler v R [2012] NSWCCA 23. In that case, Davies J said at [26]:

   In my opinion no error has been shown in relation to the way the sentencing judge approached the standard non parole period. Merely showing that a sentencing judge sentenced pre-Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non parole period as simply a guideline or yardstick.

9. However, in my view, a fair reading of the remarks on sentence as a whole, knowing they were made before Muldrock was decided, reveals that the Judge did in effect adopt a two-staged process of reasoning, beginning with his assessment that the offence was placed just below the mid range of objective seriousness for that type of offence. I think it is highly likely that, informed by that assessment, his Honour used the standard non-parole period as the springboard from which he delved into the task of balancing the other factors identified.

10. My conclusion on that issue is reinforced by the neatness of the mathematics involved. As already noted, before applying the discount of twenty-five percent to reflect the utilitarian value of the plea, the Judge must have started with a head sentence of six years and eight months. The structure of that sentence in accordance with the statutory ratio would have been a non-parole period of exactly five years with a balance of term of twenty months. The non-parole period of three years and six months ultimately imposed can be reconciled by the application of the discount for the plea and a small adjustment to the statutory ratio to reflect the finding of special circumstances. The figure thus reached neatly reflected his Honour's assessment that the offence was placed just below the mid range.

11. In those circumstances, it is difficult to resist the conclusion that the Judge used the standard non-parole period of five years as a starting point, even acknowledging that it stood only as a guide in light of the plea.

12. For those reasons, I am of the view that the decision entailed error of the kind subsequently identified by the High Court in Muldrock.

13. I consider that a lesser sentence is warranted in law and should have been passed. The offence was undoubtedly serious. In my view, however, a less harsh sentence should have been passed having regard to the circumstances of this particular offender. The schedule of cases provided on behalf of the applicant has reinforced me in that conclusion, acknowledging the limited usefulness of so-called comparable cases.

14. The applicant was aged 19 at the time of the offence. Without repeating the detail of the matters to which I have already referred, the reports of the two professionals before the sentencing court reveal that he has had a life of abject grief, hardship and deprivation. There is not a great deal more that could have gone wrong for him during his own childhood in terms of his care, safety and well-being. He became a father himself as a teenager, when substance abuse and mental illness were already substantial problems for him.

1. Notwithstanding the extreme difficulties he has faced, the applicant impresses as a young man who has good prospects of rehabilitation. An affidavit relied upon in this Court in the event of re-sentencing discloses that he has fulfilled the good intentions expressed in his evidence before the sentencing judge. He has completed a series of courses aimed at addressing the difficulties he identified in himself. The imposition of a shorter sentence should encourage him in his rehabilitation and perhaps leave him better equipped to avoid the perpetuation of the hardships of his own childhood.

2. The applicant will plainly need intensive supervision and assistance whilst on parole and that warrants a finding of special circumstances. Whilst it is of course a matter for the parole board to consider, the applicant may benefit from the intensive community support provided by the Tribal Warrior Programme managed in association with Redfern Police Station.

3. In my view, it is appropriate to impose a sentence with a non-parole period of two and a half years and a balance of term of eighteen months. The orders I propose are as follows: that the application for leave to appeal be granted, that the appeal be allowed, that the sentence imposed at first instance be quashed and that the applicant be sentenced to a term of imprisonment with a non-parole period of two years and six months commencing on 12 April 2010 and expiring on 11 October 2012 and a balance of term of eighteen months expiring on 11 April 2014.

4. BEAZLEY JA: I agree.

5. HARRISON J: I also agree.

6. BEAZLEY JA: The orders of the Court are those proposed by McCallum J.