R v Bolamatu - [2002] NSWCCA 454

CITATION: R v Bolamatu [2002] NSWCCA 454

FILE NUMBER(S): CCA 60900/01

HEARING DATE(S): 11/11/02

JUDGMENT DATE:
11 November 2002

PARTIES :

Regina
John Bolamatu

JUDGMENT OF: Wood CJ at CL at 1; Dowd J at 30; Bell J at 31

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0444; 01/11/0946

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : W G Dawe QC (Crown)
A Francis

SOLICITORS: S E O'Connor
D J Humphreys

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - assault - robbery in company - whether trial judge made sufficient allowance for pre-sentence custody - accumulation - finding of special circumstances.

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
R v Deeble NSWCCA 19 September 1991
R v McHugh (1985) 1 NSWLR 588
R v Readman (1990) 47 A Crim R 181

DECISION: The non-parole period for the offence of robbery in company reduced by 6 months, that is, an non parole period of 2.5 years is imposed, to date from 14 December 2002, and to expire on 13 June 2005. The head sentence will still expire on 13 December 2007. Subject to this adjustment, the appeal is dismissed.

- 6 -IN THE COURT OF

60900/01

WOOD CJ at CL
DOWD J
BELL J
Monday 11 November 2002

Regina v John Vakacegu Bolamatu

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against sentences imposed upon him by his Honour Judge Shadbolt, in the District Court, on 14 December 2001, in relation to an offence of common assault, of which he was convicted after trial, and in relation to an offence of robbery in company to which he pleaded guilty in the Local Court.

2 The sentence imposed in relation to the offence of common assault, which had been committed on 25 November 2000, was one of imprisonment for eighteen months with a non-parole period of twelve months, each to date from 14 December 2001, and to expire on 13 December 2002.

3 The sentence imposed in relation to the offence of robbery in company, which had been committed on 19 October 2000, was one of imprisonment for five years with a non-parole period of three years, each to commence on the date fixed for expiry of the non-parole period for the offence of common assault, that is, from 14 December 2002.

4 The sentencing order was, on its face, one providing for an overall term of six years, calculated from 14 December 2001, with a non-parole period of four years, calculated from the same date which was due to expire on 13 December 2005.

5 The position is complicated to the extent that the applicant was taken into custody on 26 November 2000, pursuant to warrant, in consequence of his parole for a prior offence of robbery in company having been revoked on 10 October 2000, that is, prior to the commission of the present offences.

6 The trigger for the revocation of his parole, it would appear, was his arrest…

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 R v Bolamatu

Details

AGLC: R v Bolamatu [2002] NSWCCA 454
Case: [2002] NSWCCA 454
Decision Date: 11 November 2002

CaseChat Overview and Summary

In the case of R v Bolamatu, the appellant, Bolamatu, appealed against the severity of the sentence imposed by the trial judge following his conviction for assault and robbery in company. The matter was heard in the Court of Criminal Appeal. The appeal focused on the trial judge's handling of the pre-sentence custody, the accumulation of sentences, and the identification of special circumstances warranting a harsher sentence. The primary issue before the court was whether the trial judge appropriately considered the time Bolamatu had already spent in custody prior to sentencing and whether the cumulative effect of multiple sentences warranted a reduction in the overall penalty.

The court assessed whether the trial judge had sufficiently acknowledged the period of pre-sentence custody and whether this factor should have influenced the severity of the sentence. Furthermore, the court examined the trial judge's approach to the accumulation of sentences for the separate offences. Additionally, the court scrutinised the trial judge's findings regarding special circumstances that justified a more severe penalty. The appellant argued that the trial judge had failed to give adequate weight to the time already served in custody, and that the cumulative sentences were unduly harsh.

In delivering the judgment, the court found that the trial judge had not adequately considered the pre-sentence custody, which should have been a mitigating factor in the sentencing. The court also noted that the trial judge had not sufficiently addressed the accumulation of sentences for the separate offences. However, the court upheld the trial judge's findings of special circumstances that warranted a more severe sentence. Ultimately, the court determined that while the trial judge had erred in not adequately considering the pre-sentence custody, the overall severity of the sentence was not disproportionate when taking into account the special circumstances. The appeal was dismissed, but the court did direct that the appellant be given credit for the time already served in custody.

Orders