Regina v Kate Bolter [2002] NSWCCA 417

New South Wales Court of Criminal Appeal

CITATION : Regina v Kate Bolter [2002] NSWCCA 417 FILE NUMBER(S) : CCA 60156/02 HEARING DATE(S) : 8 October 2002 JUDGMENT DATE : 8 October 2002

PARTIES : Regina Kate Maree Bolter JUDGMENT OF : Sully J at 1; Howie J at 43

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/31/0002 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : D. Woodburne - Crown G. Bashir - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant

LEGISLATION CITED : Crimes Act Crimes (Sentencing Procedure) Act 1999 De Simoni v The Queen (1981) 147 CLR 383 CASES CITED: Ryan v The Queen (2001) 75 ALJR 815 Thomson and Houlton Veen v The Queen [No. 2] (1988) 164 CLR DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60156/02

SULLY J HOWIE J

Tuesday 8 October 2002 REGINA v KATE BOLTER JUDGMENT

1 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. 2 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. 3 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. 4 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. 5 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." 6 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." 7 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.