R -v- Bolter - [2002] NSWCCA 435

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Kate Maree Bolter [2002] NSWCCA 435

FILE NUMBER(S):
60156/02

HEARING DATE(S): 8 October 2002

JUDGMENT DATE: 08/10/2002

PARTIES:
Regina
Kate Maree Bolter

JUDGMENT OF: Sully J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0002

LOWER COURT JUDICIAL OFFICER: English DCJ

COUNSEL:
D. Woodburne - Crown
G. Bashir - Applicant

SOLICITORS:
S. E. O'Connor - Crown
D. J. Humphreys - Applicant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act
Justices Act 1902 (NSW)

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60156/02
SULLY J
HOWIE J
Tuesday 8 October 2002

REGINA v KATE BOLTER

JUDGMENT

SULLY J: This is an application for leave to appeal against sentence. The applicant, Miss Bolter, stood for sentence on 22 March 2002 before her Honour English DCJ sitting in the District Court at Gosford.
The applicant had earlier, on 20 December 2001, pleaded guilty in the Gosford Local Court to two charges of break, enter and steal, and had been committed thereupon for sentence to the District Court. The offences in question each contravened s 112(1) of the Crimes Act, and attracted upon conviction a statutory maximum penalty of, relevantly, imprisonment for 14 years.
Her Honour imposed in respect of the earlier of the two offences a fixed sentence of imprisonment of three years, declining to set a non-parole period for the reason that that sentence would be, as her Honour put it, subsumed in the sentence to be imposed for the second of the two offences.
For that second offence the applicant was sentenced to imprisonment for a term of four years, a non-parole period of three years being set. The sentences were dated so as to be served concurrently.
The relevant facts are set out in all necessary detail in the remarks on sentence. I quote them as follows:
“ I do not find her expressions of remorse and contrition to be genuine. The offences themselves are objectively serious.
On 24 October 2001 at 9 am she was located inside premises at 21 Gladys Manley Avenue, Kincumber. She was located inside the premises by the owner, Charles Knighton. She was questioned why she was in the premises and she informed the owner she was looking for an elderly woman. She then left the premises and was seen walking into a driveway at 28 Gladys Manley Avenue.
The victim returned immediately and checked his wallet which was located upon the bench next to where she had been standing. He noticed $6 in coinage had been removed. He left the house in an endeavour to track her down. A while later he returned to the house and contacted police. The police attended.
Later that evening the victim's wife noticed that her engagement ring, being a nine carat yellow gold ring containing 1.2 carat diamonds, and her eternity ring, which was also a nine carat ring containing 14 diamonds, had been removed from a pill container which was beside the bed in a drawer. Police were advised of the thefts of the rings.
On Tuesday 30 October 2001 the victim was in his front yard and saw the offender walk past. He again observed her to walk into a driveway at 28 Gladys Manley Avenue. He contacted police and pointed out the offender to police. She was spoken to but denied the allegations. She was arrested and conveyed to Gosford Police Station. She had obtained entry to the premises via an unlocked closed security door. She declined to be interviewed and compensation is sought in the sum of $1,716 as no property has been recovered. She says she sold the rings. The victims of the break, enter and steal were in their 70s.
On 5 November 2001 the victim, Lynette Gosford, returned home from Sydney. She entered her home at Frederick Street, East Gosford at about 8.30 pm. As soon as she entered the bedroom she saw the offender standing at the dressing table. The offender threw her hands in the air immediately. The victim said, ‘What are you doing?’ and the offender said, ‘I’m looking for,’ and named a person. The victim called out to her son Patrick who came into the bedroom. A further witness, Rebecca Bell, was just behind the victim's son and Ms Bell rang the police.
The offender was escorted from the premises by the victim and her son and allowed to leave. At about 8.40 pm the offender was seen by police walking in an alley way beside the En Style Dance Studio. She was arrested and searched and found to be in possession of a red Pokemon watch which was the property of the victim Lynette Gosford’s grandchild. She had entered the premises by tearing a fly screen on the security door and unlocking the snib. Once again the offender declined to be interviewed.”
Looking at the objective criminality of this behaviour her Honour made the following observations:
“It has been said time and time again that the invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection. Householders should be able to leave their homes confident that their belongings will be there upon their return. The trauma of entering a home to find that it has been broken into and property stolen is no light matter. Particularly when the victims are elderly as in the case of the Knightons. Added to this of course is the emotional distress at the loss of treasured items of jewellery which have been sold for a mere pittance. Of course the sentimental value far outweighs their monetary value. Even those who are not the immediate victims of burglaries nevertheless feel the effects in escalating insurance premiums by insurers for insurance of the risk of its occurrence.”
It is sufficient for present purposes if I say that I am in complete and respectful agreement with what is said by her Honour in the paragraph last quoted.

A number of specific grounds of appeal are relied upon and it is convenient to deal with them in the order in which they are raised in the submissions.
The first ground of appeal is that the sentences imposed do not reflect the applicant's criminality on each offence. The submissions point to what is said to be evidence of the severity of the sentences when compared to the apparent gravity of the offences.

The apparent gravity of the offences is canvassed in the submissions, in part at least, by reference to the comparatively low commercial value of the property that was in fact stolen.
The short answer to that submission, it seems to me, is to be found in the passage which I have earlier quoted from the remarks on sentence. The enormity of the crime of break, enter and steal in terms of what that crime entails to normal law abiding members of the community who are affected by it, is not always and necessarily to be measured only by reference to the bare dollars and cents value of what has been taken. Many people, and especially people who are of comparatively senior years, are affected, and badly affected, by break, enter and steal offences in ways which are not quantifiable in dollars and cents. What ought to be the sanctity and sanctuary of their homes is violated. Their own sense of security, a right it might be noted and not a privilege, is traduced; and their sense of confidence that they can live peacefully, going about their lawful affairs without the gratuitous interference of other people, is dealt a very severe blow.
It is no answer to say that there are, as of course is the case, much more serious offences in the criminal calendar. Offences of break, enter and steal are not, in broad social terms, trivial offences. I do not think that the first ground has been made out.
The second ground of appeal propounds that the learned sentencing Judge erred in that her Honour breached the principles established by the decisions of the High Court of Australia in De Simoni v The Queen (1981) 147 CLR 383 and Ryan v The Queen (2001) 75 ALJR 815.

This submission turns essentially upon the interpretation of some remarks made by the sentencing Judge during the course of her Honour's remarks on sentence. Very early during those remarks her Honour said this:
“The offences are clearly aggravated by virtue of the fact that the offender was on parole at the time of both offences and at the time the second offence was committed she was on bail following her arrest for the first offence.”
Towards the end of the remarks on sentence her Honour said this:
“Each of the offences itself is objectively serious and committed in circumstances of aggravation.”
It is submitted that these references to aggravation, and in particular the latter reference to "circumstances of aggravation", warrant the drawing of an inference that what her Honour was really doing was impermissibly punishing the applicant for crimes more serious than those for which the applicant in fact stood for sentence.
It seems to me that a fair reading of the entirety of the remarks on sentence cannot possibly support that submission. It is conceded, and, as I respectfully think, correctly and sensibly conceded, that if her Honour had said, for example, "each of the offences itself is objectively serious and that objective seriousness is compounded by the fact that the offences were committed while the offender was on parole and subject to bail", then there would have been no cause for the present complaint.
It seems to me on a fair reading of the remarks on sentence, that is precisely what the learned sentencing Judge was intending to convey. In my opinion the second ground of appeal has not been established.
The third ground of appeal is that the learned sentencing Judge erred in that her Honour failed to take into account that the majority of offences of this type are dealt with in the Local Court. The point of this argument is that a Local Court Magistrate is limited much more than is a Judge of the District Court in the setting of a maximum penalty in respect of break, enter and steal offences.
It does not seem to me that this ground of appeal can be sustained. The fact of the matter is that the Director of Public Prosecutions, who has a complete discretion in the matter, chose to proceed on indictment in the District Court, as he was plainly entitled to do. Once the jurisdiction of the District Court was invoked at all, then what was invoked in terms of jurisdiction to pass a sentence of imprisonment was no longer to be governed in some artificial way by what might have been done in different circumstances by a Local Court Magistrate in the Local Court. Ground 3 in my opinion has not been made good.
The fourth ground of appeal is that the learned sentencing Judge failed to take properly into account the applicant's pleas of guilty; those pleas having been entered, as it is put, at the first possible opportunity and with the maximum utilitarian value in terms of the facilitation of the course of public justice.
I mean no disrespect to the way in which the submissions were argued when I observe that the submission was framed in its general terms, and argued in its particular incidents, in the way with which I think this Court has become increasingly familiar since the decision in Thomson and Houlton.
It is true, of course, that the decision in Thomson and Houlton speaks, in the form of precise percentages, of ranges which are thought by the Court to be generally appropriate in order to recognise what we have now to describe by the rather cumbersome phrase of willingness to facilitate the course of public justice. But one thing that Thomson and Houlton does not establish is that it is a proper approach to the proper recognition of that willingness to facilitate the course of justice to engage in a simple, but essentially artificial, mathematical calculation, in the hope that the resourceful juxtaposition of this and that set of figures will somehow produce a more lenient result than the one achieved at first instance.
Thomson and Houlton is a guideline judgment. It is not intended to have effect divorced from the facts and circumstances of the individual case; a proposition which is made clear in the judgments, and in particular the judgment of the Chief Justice. In my opinion ground 4 has not been made good.
The fifth ground of appeal is that her Honour failed to take into account the subjective features of the applicant when exercising her sentencing discretion. The appellant points to particular things said by her Honour, such as, for example: "she can expect no sympathy from this Court", and: “she must clearly understand that her re-offending will not be tolerated. At the same time the message must be conveyed to those of a like mind that they will be treated harshly if they choose to re-offend and not to take the opportunities afforded to them to turn their lives around.”
It is submitted that comments of that character warrant the drawing of an inference that the learned sentencing Judge did not bring to bear a properly balanced and dispassionate judgment upon the assessment, relevantly, of the applicant's subjective circumstances.
It can be said at once that the easy part of the present application, just as it was the easy part of the sentencing exercise upon which her Honour had to embark, to feel at least a measure of sympathy for the present applicant. She is a very young woman, barely, I think, 21 years of age. In broad social terms it is incontestably a tragedy to see such a person before the Courts facing the prospect, as this applicant faces, of a significant term of full-time custodial imprisonment.
It needs to be borne in mind, however, that there is another perspective upon the applicant's situation, which needs, also, to be given its proper place in the relevant scheme of things: and that is the pattern of her unlawful behaviour in recent years.
It will be necessary to say presently something more particular about that aspect of the applicant's case. It suffices for the moment to say that it does not seem to me to offend any relevant sentencing principle to speak of a need to deal harshly and without inappropriate sympathy with such a case. Her Honour might have chosen instead to have spoken about "severity"; or to have adopted the expression, frequently heard in this Court, of "condign punishment". Her Honour chose instead to use the description “harsh”. I do not think that is sufficient to carry this particular ground of appeal.
The sixth ground of appeal is that her Honour failed to apply correctly the Crimes (Sentencing Procedure) Act 1999 in exercising her sentencing discretion with regard to the applicant.
The submissions urged in support of this ground point to the obligation, which undoubtedly rested upon the learned primary Judge, to pass a sentence of full-time imprisonment only when it was clear that none of the other sentencing options for which the legislation makes provision would deal adequately with the just requirements of the particular case.
It is true that the learned sentencing Judge spoke of what her Honour called the inevitability of a full-time custodial sentence. I do not understand her Honour to have been conveying in any way that she had not at least addressed in a general kind of way the existence of the alternative sentencing options for which the Act provides; and had found all of them, as I think in my respectful opinion she was bound to find all of them, inadequate to answer the circumstances of the present case.
I wish to say for my own part that if it is intended by this ground of appeal to propound that a sentencing Judge is bound to build into remarks on sentence a precise, and a precisely articulated, checklist corresponding to the relevant sentencing alternatives for which the statute provides; and then, as it were, meticulously to tick off each one until left only with the option of a full-time custodial sentence, then that proposition ought to be firmly rejected.
There are enough layers of artificiality as it is with which sentencing Judges have to contend. There is no warrant that I can see for adding a further one. In my opinion the sixth ground of appeal has not been made good.
The seventh and final ground of appeal is that the sentence was manifestly excessive in all of the circumstances. It is in connection with that ground of appeal that it is appropriate to say briefly something more about the criminal antecedents of the applicant.
They are set out in all necessary detail in the usual annexure to the particulars of trial filed in connection with the present appeal. It is not necessary, I think, to set out in meticulous detail each and every entry in the record. It is sufficient to say that there are some 14 separate offences, or blocks of offences, to which reference is there made.
It can be seen from a perusal of the sentencing history of the appellant that she has had from time to time in the past every opportunity to mend her ways. She has had bonds; she has had the benefit of a suspended sentence. It needs to be borne in mind always when considering such a record that a bond, or a suspended sentence, is not given to somebody just for the asking. It is given in the light of an assurance to the sentencing Court that the person who seeks the leniency of a bond or suspended sentence really does appreciate the seriousness of what he or she has done, and can be trusted to do what is necessary in order to stop re-offending in the future.
So far as concerns the way in which such a record is to be taken into consideration, one need go no further than the well-known statement of principle in Veen v The Queen [No 2] (1988) 164 CLR 477:
“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (35). The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society make all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”
It seems to me that the substance of what is there said by the High Court applies, precisely, to the given facts and circumstances of the present case.
Yet again it is necessary to draw together the considerations particular to the case by asking the correct question. The correct question is not whether this Court thinks that it might have dealt with the applicant's case at first instance in a way more lenient than that taken by the sentencing Judge. The question for this Court is whether it has been shown that the sentences in fact passed by the primary Judge fell outside the scope of a proper and reasonable exercise of the sentencing discretion, applied with a practical commonsense to the given facts and circumstances of the instant case.
I am wholly unpersuaded that such question is to be answered favourably to the applicant.
I would grant leave to appeal, and dismiss the substantive appeal.
[15 October 2002: Addendum to Judgment]
[I have seen and revised a transcript of my judgment delivered ex tempore on 8 October 2002. There is an error in paragraph 20 of that transcription. It was not the fact that the Director of Public Prosecutions chose to proceed on indictment in the District Court. The applicant pleaded guilty in the Local Court, and was committed pursuant to section 51A of the Justices Act 1902 (NSW) for sentence to the District Court. The need to make an appropriate correction of what I actually said on 8 October does not alter, in my opinion, the correctness of the proposition advanced in the third sentence of paragraph 20.]

HOWIE J: I agree.
SULLY J: The orders will be the orders I have announced.

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LAST UPDATED: 30/10/2002