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Robson-Bolan v The The Queen

Robson-Bolan v The The Queen

Case [2022] NSWCCA 1 21 January 2022

Sentencing

Accumulation and Concurrence

Totality

Criminal Law

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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

PRICE J: I agree with Hamill J.
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…

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 Robson-Bolan v The The Queen

Details

AGLC: Robson-Bolan v The The Queen [2022] NSWCCA 1
Case: [2022] NSWCCA 1
Decision Date: 21 January 2022

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