Robson-Bolan v The The Queen

Case [2022] NSWCCA 1


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Robson-Bolan v R [2022] NSWCCA 1
Hearing dates: 22 September 2021
Date of orders: 21 January 2022
Decision date: 21 January 2022
Before: Price J at [1];
Hamill J at [2];
Ierace J at [49]
Decision:

(1) Application for leave to appeal granted.

(2) Appeal allowed.

(3) Quash the sentences imposed in the District Court and in lieu thereof sentence the applicant as follows:

(a) For the supply offence, the applicant is sentenced to imprisonment for a fixed term of nine months commencing 26 February 2020 and expiring 25 November 2020.

(b) For the attempt to import offence, the applicant is sentenced to imprisonment for two years and three months commencing 26 August 2020 and expiring 25 November 2022.

(c) Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), upon giving security in the sum of $100, the applicant is to be released on a recognisance release order after one year and six months, that is, on 25 February 2022.

Catchwords:

CRIMINAL LAW - sentencing - totality - accumulation and concurrence - “notional” accumulation - two drug offences - where sentencing Judge referred to notional accumulation - where sentences wholly and actually accumulated - whether structure of sentence reflected Judge’s stated intention - whether reasons adequate to explain extent of accumulation - opacity of language - error established - applicant re-sentenced

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A, 16BA

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A(1), 45

Cases Cited:

Burgess v R [2019] NSWCCA 13

Cahyadi v Regina [2007] NSWCCA 1

Hall v The Queen; Barker v The Queen [2017] ACTCA 16

JM v R [2014] NSWCCA 297

JT v R [2012] NSWCCA 133

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kliendienst v R [2020] NSWCCA 98

Lee v R [2020] NSWCCA 244

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Noonan v R [2021] NSWCCA 35

R v Hammoud [2000] NSWCCA 540

R v MMK [2006] NSWCCA 272

R v Robson-Bolan [2021] NSWDC 48

R v XX [2009] NSWCCA 115

Vaughan v R [2020] NSWCCA 3

ZA v R [2017] NSWCCA 132

Category:Principal judgment
Parties: Thomas Robson-Bolan (Applicant)
Regina (Respondent)
Representation:

Counsel:
S Howell (Applicant)
P McEniery (Respondent)

Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Cth) (Respondent)
File Number(s): 2020/63047
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

[2021] NSWDC 48

Date of Decision:
5 March 2021
Before:
Abadee DCJ
File Number(s):
2020/63047

Judgment

  1. PRICE J: I agree with Hamill J.

  2. HAMILL J: Thomas Jacob Robson-Bolan (the applicant) seeks leave to appeal against sentences imposed on him in the District Court on 5 March 2021. He was sentenced for two drug offences and asked that two other offences be taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth). The sentencing hearing took place on 26 February…

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AGLC
Robson-Bolan v The The Queen [2022] NSWCCA 1
Case
[2022] NSWCCA 1
Decision Date

CaseChat Overview and Summary

The appellant, Robson-Bolan, appealed against his sentence in the Supreme Court of Queensland. The dispute centred on the sentencing process for two drug-related offences, where the sentencing judge applied the principle of notional accumulation. The Supreme Court of Queensland was asked to review the adequacy of the reasons provided by the sentencing judge for the extent of the accumulation and to determine if the structure of the sentence correctly reflected the judge's stated intention. The central legal issue was whether the language used by the sentencing judge was sufficiently clear and whether the sentence adequately reflected the principle of notional accumulation.

The court examined the sentencing judge’s approach to the principle of notional accumulation, which involves considering the cumulative effect of multiple sentences. The court noted that while the sentencing judge had referred to notional accumulation, the sentences in fact wholly and actually accumulated. The court found that the reasons provided by the sentencing judge were not sufficiently clear, with language that lacked transparency. The court identified an error in the sentencing process, stating that the opacity of the language used meant the reasons were inadequate to explain the extent of accumulation. The court concluded that the sentence did not accurately reflect the intended notional accumulation as explained by the sentencing judge.

As a result of the court's findings, the appellant was re-sentenced. The court determined that a clear explanation of the reasons for the sentence was necessary to ensure the sentence structure appropriately reflected the sentencing principles applied. The re-sentencing was conducted with an emphasis on ensuring that the language used was transparent and adequately explained the cumulative effect of the sentences imposed. This re-sentencing aimed to rectify the error identified in the original sentencing process and provide a more coherent justification for the extent of the accumulation.

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

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Ratio Decidendi

Legal Principle Established

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