R v Bolin [2019] NSWDC 744

District Court New South Wales

Medium Neutral Citation: R v Bolin [2019] NSWDC 744 Hearing dates: 8 November 2019 Decision date: 08 November 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 4 years 6 months; with a non parole period of 2 years 3 months. Catchwords: CRIME - SENTENCE - enter dwelling with intent to commit a serious indictable offence - intimidation - contravene apprehended domestic violence order - special circumstances to vary ratio of non parole period to head sentence. Legislation Cited: Crimes Act 1900 (NSW), S112(2); Crimes (Domestic and Personal Violence) Act 2007 (NSW). Category: Sentence Parties: Regina (Crown)

Wade Bolin (Offender) Representation: Mr Sutherland (ODPP)

Mr Opper (Counsel for the offender) File Number(s): 2018/298916 Publication restriction: Nil

Judgment 1. Wade Bolin, you appear for sentence today in relation to three offences. 2. First, the offence of aggravated enter dwelling with intent to commit a serious indictable offence, that indictable offence being intimidation. This involves a contravention of s 112(2) of the Crimes Act. The maximum penalty for that offence is 14 years' imprisonment. There is no standard non‑parole period. 3. Secondly, the offence of intimidation. This involves a contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The maximum penalty for that offence is 5 years' imprisonment. Again there is no standard non‑parole period. 4. Thirdly, the offence of contravening an apprehended domestic violence order. This involves a contravention of s 14(1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty in relation to that offence is 2 years' imprisonment. 5. The facts surrounding your offending are substantially contained in a document entitled "Agreed Facts." Slightly recast by me as to style but not substance, the relevant facts are as follows. 6. For some years before January 2017, you had been in a domestic defacto relationship with the victim of your offending conduct. 7. On 24 January 2017 that relationship had deteriorated to the point that the victim found it necessary to go to the police and seek an apprehended domestic violence order in which she was named as the person in need of protection and you were named as the defendant. 8. By 14 June 2018 your relationship with the victim had come to an end, although there was some continuing interaction between the two of you. 9. On the morning of 14 June 2018, although the relationship had come to an end, you and she were still living at an address in Miller. There was a third person on those premises on that morning. You were asleep and the victim went to wake you because it was your birthday. You did not want to be woken and an argument broke out between the two of you. Ultimately she left the room to go to the rear of the premises where the argument continued. 10. The third adult person in the house went to look after the children who were present. 11. The argument got worse and you then punched the victim to the eye with a closed fist. Her eye immediately began to swell and turn purple from the bruising. The police were called. You were arrested and you were granted bail. 12. It was whilst you were on that bail for that offence that you committed the three offences for which you are to be sentenced by me today. You have already been sentenced by another Court in relation to the offence you committed on 14 June 2018. 13. On the evening of 30 September 2018, the apprehended violence order was still in place and, amongst other things, it should have prevented you from going to the premises at which the victim was living. 14. On that night she was in her own home lying on the floor on a mattress with her daughter. 15. During the course of the evening, you and she had had a heated argument on the phone and, not long after that argument, you arrived at those premises. You entered the premises through the back door and ran up to her. She screamed because she was afraid of you. 16. Your response? You told her to stop screaming – and then you spat at her. 17. You told her that you would cut all of her hair off if she did not do that herself. You told her that you were going to make sure, by the time you were done with her, that she would look ugly and that no one would want her. 18. The victim then got a knife and cut her own hair off in order to stop you doing that. 19. You told her that you hated her; that you wished she were dead. 20. She was so scared of you that she went into the bathroom and started cutting herself on the arm with a knife in an attempt to make you feel sorry for her and not to hurt her anymore. 21. When she came out of the bathroom, what was your reaction? You spat at her again. 22. She asked you to leave, but you refused. 23. Eventually each of you fell asleep in different parts of the premises. 24. The next morning, the argument between the two of you continued. You were very angry that the relationship between the two of you was over. You again told her that you wished she were dead and that you would not care if she were dead. You also told her (somewhat frighteningly) that if you could not have her, no one else would. Although the agreed facts do not expressly say so, the only rational inference is that she would have understood that to be a threat to kill. So afraid of you was the victim, that she then got a knife and stabbed the back of her own head three times so that you would stop. It is a bit unclear to me from the agreed facts what that last statement was intended to mean. But I have understood it to mean it was an attempt by her to stop you from harming her by making you feel sorry for her again. 25. After she had stabbed herself, you began to calm down and became apologetic. You took the victim to the shower because she was bleeding. You told her that you were sorry - but you also told her it was her fault. 26. After the victim got out of the shower, she asked you to go down to the road to get something for her - and you did. You left the house and, whilst you were gone, she took her daughter and ran from her house to a neighbour. The police were called. 27. It is these facts that constitute the three offences for which you are to be sentenced today. 28. In terms of their objective seriousness for offences of their kind: the offence of aggravated enter dwelling falls somewhere equidistant between the middle of the range and the bottom of the range; the offence of intimidation is above the midrange offence; and the contravene domestic violence order is also somewhere equidistant between the middle and the bottom of the range. 29. Each offence is additionally aggravated by the following three considerations. First, you were on bail. Secondly, the offences occurred in the home of the victim. Thirdly, your prior history of similar offending gives rise to the application of Veen (No 2), i.e. your criminal history is an additional aggravating factor. 30. You are now 25 years old. 31. You had a most unfortunate childhood. Domestic violence not only from your father to your mother, but from your mother to your father, was the overwhelming factor of that childhood. You and your brother saw pretty confronting domestic violence between your parents when you were young. 32. The nature and quality of the abuse to which you were exposed can properly be described as dysfunctional background - giving rise to the reduced moral culpability which the High Court has directed sentencing judges to take into account in appropriate circumstances. 33. As a child you were diagnosed and treated for ADHD as well as oppositional defiance disorder and conduct disorder. 34. Possibly in response to the mental illness that I have just referred to, possibly in response to the violence that you saw and which you wished to escape, or maybe a combination of both, you started using illegal drugs from a very young age. You started using cannabis when you were 12. It was a drug with which you were very familiar at that age because some of your aunties used to smoke that drug in your parents' house. You started drinking alcohol when you were 13. You started consuming ice when you were 14. You started using ecstasy when you were 17. You started using cocaine when you were 18. And until you recently went into custody in connection with the offence of June 2018 and the ones with which I am concerned, you have pretty well been using drugs consistently. 35. Since you have been in custody, you have been diagnosed as suffering from bipolar disorder - and undoubtedly you were suffering from that disorder during the time of your relationship with the victim. 36. You had received no treatment of any kind for that serious mental disorder - that is to say, no legitimate treatment because you sought to self‑medicate with the drugs I have referred to. 37. To date you have only been diagnosed with bipolar disorder. In this regard, I have not overlooked how old you were when you started consuming cannabis. It is on the cards, Mr Bolin, that there may be another condition awaiting you further down the track because there is an undoubted connection between teenagers consuming cannabis and the subsequent development of schizophrenia at a later stage in life. I hope it does not happen to you, but it is on the cards. Anybody who says that cannabis is not a dangerous drug has not the faintest idea what they are talking about. 38. Unsurprisingly with that history, you have committed numerous offences of violence - almost all of them in the context of domestic violence situations. 39. You left school at the end of year 11. 40. After you left school, you had a series of jobs. You tried to work hard in the automotive panel beating industry, as a carpenter, and as a glazier - and indeed it was as a glazier that you enjoyed real work. But the drugs have got in the way of your work history. 41. You left home when you were 16 and you have had to fend for yourself ever since. 42. It was not until you went to prison because of the offence in 2018 that your life changed for the better. It seems an odd thing to say, Mr Bolin, that the best thing that ever happened to you in your life to date was to go to gaol because in gaol your bipolar disorder was diagnosed and you have been given legitimate medication for it. Furthermore, you have been exercising and, most significantly of all, you have undergone a series of remand programs to address your drug issues. You have engaged with the prison psychologist. All of this means that your life has turned around. You told the psychologist that you feel the healthiest you have ever felt in your life. And significantly there are no infractions since you have been in custody - including no drug offences whilst in gaol and it is a notorious fact that illegal drugs are easily accessible in the custodial setting. You have not succumbed to the temptation. 43. You have expressed genuine remorse - both in the witness box and to the psychologist - and I found you to be an impressive witness. 44. The victim of your offending wishes to "re-engage" with you. She and your mother have seen the changes. 45. You have 3 children with that lady. 46. I have concluded that your prospects of rehabilitation are indeed quite good. 47. Notwithstanding the offending conduct that is recorded on your history, I believe you when you say you have changed. 48. Because of your mental illness, you are not a suitable vehicle for the full application of what lawyers call general deterrence but it still has some relevance. General deterrence is fixing a sentence that will discourage others from doing what you have done. 49. But because of your history, specific deterrence (that is fixing a sentence that will deter you from re-offending) is fully engaged - as is an equally important sentencing consideration - your rehabilitation. The community has an interest in you getting better. 50. You entered a plea of guilty at the first available opportunity and you will receive a discount of 25%. 51. I am going to impose an aggregate sentence. It is necessary for me to state the indicative sentences which underpin that aggregate sentence. 52. Insofar as the aggravated entry is concerned, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years'. With the discount of 25%, the indicative sentence is 3 years'. 53. In relation to the intimidation, except for your plea of guilty, the indicative sentence would have been 3 years' imprisonment. Because of the plea, the indicative sentence is 2 years', 3 months. 54. In relation to the breach of the AVO, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 8 months. Because of the plea, the indicative sentence is 6 months. 55. In the result, there is an aggregate sentence to be imposed of 4 years and 6 months. 56. That sentence will date from 2 April 2019 so as to partially accumulate with the sentence for the offence you committed on 14 June 2018. 57. I have decided to find special circumstances to vary the ratio of the head sentence to the non‑parole period. I have done so because of the finding I have made concerning your prospects of rehabilitation - I think those prospects would be enhanced by a longer period on parole. 58. Accordingly, I fix a non‑parole period of 2 years and 3 months to date from 2 April 2019 and which will expire on 1 July 2021. 59. I fix a balance of 2 years and 3 months to date from 2 July 2021 and which will expire on 1 October 2023. 60. Whether you are admitted to parole Mr Bolin is entirely a matter for the parole authority, but should you behave and improve as you have done so far, I can see no reason why you would not be granted parole. You will now go with the officers, thank you.