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…

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- Bolter

Details

AGLC: R -v- Bolter [2002] NSWCCA 435
Case: [2002] NSWCCA 435
Decision Date: 8 October 2002

CaseChat Overview and Summary

In the case of R v Bolter, the defendant was brought before the court in relation to an appeal against a sentence imposed by the District Court. The primary issue for the court was whether the sentence imposed was manifestly excessive, warranting an intervention by the appeal court. The case was heard by Justice Howie, with Justice Sully concurring.

The legal issues at hand revolved around the principles of sentencing and the extent to which an appellate court should interfere with a sentence imposed by a lower court. The central question was whether the sentence was so disproportionate or inappropriate that it could be considered manifestly excessive, thereby necessitating the appellate court's involvement.

Justice Howie examined the evidence and arguments presented, focusing on the nature of the crime, the defendant's criminal history, and the sentencing considerations. The judge concluded that while the sentence was severe, it was not manifestly excessive. Justice Howie determined that the District Court had appropriately considered all relevant factors and that the sentence was within the range of acceptable punishments for the offence committed. Justice Sully concurred with this decision, reinforcing the view that the sentence was not manifestly excessive.

No further orders were made by the court. The appeal against the sentence was dismissed, and the original sentence imposed by the District Court was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULLY J

[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.

Ratio Decidendi

Legal Principle Established

Established by: SULLY J

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