New South Wales Court of Criminal Appeal 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 Shadbolt DCJ OFFICER : 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 R v Deeble NSWCCA 19 September 1991 CASES CITED: 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 CRIMINAL APPEAL 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 for an offence of larceny, with which he was charged on 14 September 2000, and in respect of which he was sentenced to imprisonment for three months on 1 December 2000. 7 The balance of his parole in relation to the prior offence of robbery in company, for which he had received a head sentence of six years, to date from 19 February 1997, was not due to expire until 3 April 2003 as a consequence of the delay between the date of revocation of parole and his return into custody. 8 It would follow that his pre-sentence imprisonment, amounting to just over one year between 26 November 2000 and 14 December 2001, the commencement date for the sentences under appeal, was not solely referable to the offences in respect of which those sentences were imposed. 9 However, as a result of these sentences being partially concurrent, and partially accumulative upon the pre-existing sentence, the minimum continuous period during which the applicant would be required to serve in custody, after having returned to prison on 26 November 2000 before being re-eligible for parole would be one slightly in excess of five years. 10 The facts were succinctly stated by his Honour. In brief, the assault occurred in the circumstances where the applicant and Albert Bolamatu went to a flat occupied by a Miss Bashford for the purpose of recovering a debt. The offenders took certain items under claim of right, but additionally they set out on a rampage of violence, smashing and overturning furniture and issuing threats to Ms Bashford, who was nearing full term pregnancy, and who not surprisingly was placed in great fear. 11 In relation to the robbery in company the brief facts were that the applicant and his co-offender entered a branch of the National Australia Bank. The applicant jumped a counter and demanded money from the tellers, and then assisted the co-offender to gain access to the area behind the security screens. Upwards of $30,000 was taken, but not before a member of the bank staff managed to throw a dye bomb into the bag which the applicant was carrying. 12 The applicant was subsequently detected by way of a fingerprint on a counter at the bank, and by his presentation of one of the dye-marked banknotes. 13 The applicant had an extensive criminal history for violence and dishonesty, including convictions for robbery and related offences, which as his Honour appropriately noted, did not entitle him to any leniency. Subjectively he was shown to be a thirty year old male who had suffered mental health problems since his teenage years. 14 His Honour noted the reports which had been tendered in this respect, including that of Dr Clarke, who stated that what the applicant suffered from was "the classic onset of schizophrenia at the age of sixteen or seventeen years which to some extent abated with medication", as well as the reports from the Correctional Health Services which rather saw him as suffering from "recurrent drug induced psychosis". 15 His Honour came to the factual conclusion that he had not been psychotic at the time of the assault but he may have lacked judgment as a result of his illness, and may have been more prone to excitation and temptation when he was off medication, as he had been at the relevant time. 16 He accepted that, when drug free and in a structured environment, he did well, but that things went wrong when he returned home and resumed the use of alcohol and cannabis. Indeed, the medical reports would seem to suggest that he was not well accustomed, or prepared, to cooperate with medication, and that this had led to him committing repetitive criminal offences. 17 His Honour found that special circumstances had been established, referable to his chronic mental illness, and the need for a longer period of supervision, while on parole than that contemplated by s 44(2) of the Act. 18 In fixing the effective non-parole period of four years against the overall head sentence of six years, leaving aside the pre-sentence custody, of one year and eighteen days, the ratio between the non-parole period and the head sentence was 66.66 per cent. When the effect of the partial accumulation, on the prior sentence, is taken into account the ratio of the effective non-parole period, of just over five years, to the overall head sentence of just over seven years, each calculated from 26 November 2000, is one slightly in excess of seventy-one per cent. 19 It is submitted, on behalf of the applicant, that his Honour erred in not making sufficient allowance for the pre-sentence custody, or for the fact of accumulation, and by not reducing the effective overall non-parole period, so as to accord with the finding, which he made, of special circumstances. 20 By the time that his Honour came to sentence the applicant he had not been released back on parole. Although, theoretically, that could have occurred, the fact of the pending charges made it inevitable, in a practical sense, that the Parole Board would not have allowed his release. 21 In those circumstances, it was not obligatory for his Honour to back date the sentencing order. The fact of his pre-sentence custody was, however, a relevant matter for consideration for the reasons identified in R v McHugh (1985) 1 NSWLR 588, and R v Deeble NSWCCA 19 September 1991. 22 It was submitted that his Honour had not been appropriately informed of the date on which the applicant had been taken into custody as a result of the revocation of parole, and on that basis may have fallen into error. I am not however persuaded that such argument has been made good since, amongst the exhibits tendered, were the records from the Probation and Parole Service which made it crystal clear that he had been returned into custody, following revocation of his parole, on 26 November 2000. 23 It was next submitted that his Honour may have been misled by the applicant's solicitor, so far as he suggested, during the course of the sentencing proceedings, that the sentence imposed in the Local Court constituted a sentence of six months, whereas in fact it was a sentence of only three months. 24 Whether his Honour noted that error is not at all clear from the reasons for sentence, however had there been a reference back to the sentencing record, then no doubt that error would have been apparent. It is a matter appropriately to be taken into account, since I am of the view that the course which his Honour took erred to some extent, although only to a limited extent. 25 In my view, in the light of the serious nature of the two offences, and the sentencing pattern for offences of robbery in company when committed upon banks, there could be no possible quarrel with the individual head sentences. Indeed, counsel for the applicant accepted that to be the case. 26 Nor, in my view, could there be any legitimate complaint for them having been made partially concurrent and partially cumulative, not only upon one another, but also in relation to the prior offence of robbery in company, since they were committed while the applicant was on parole in relation to it. The principle of totality justified that course, the fact that these offences were committed while the applicant was on parole being a matter of significant aggravation: R v Readman (1990) 47 A Crim R 181. 27 I have however reached the conclusion, notwithstanding those considerations, that his Honour erred in relation to the non-parole period. The fact of accumulation, and the fact of revocation of parole, as a result of an offence for which a relatively short sentence was later imposed, and which had expired well before the commencement date of the new sentences, qualified as a special circumstance, which should have been taken into account, in addition to the mental illness of the applicant. 28 The effect of his Honour's sentencing order which, in substance, discounted the statutory ratio by only four per cent, and when considered against the total period of continuous custody, in my view, did not properly carry into effect the finding of special circumstances. 29 Error having thus been shown, I would grant leave to appeal. I propose that this Court intervene but only so as to reduce the non-parole period for the offence of robbery in company by six months, that is to one of two and a half years, to date from 14 December 2002, and to expire on 13 June 2005. The effect would be that the existing overall head sentence would still be one that expires on 13 December 2007. The effective non-parole period would be one that expires on 13 June 2005. Subject to that adjustment, I would otherwise dismiss the appeal. 30 DOWD J: I agree. 31 BELL J: I also agree. 32 WOOD CJ AT CL: The order of the Court will be as I proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.