Bamblett v The King - [2023] VSCA 184

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0181

JAMES BAMBLETT	Appellant
v
THE KING	Respondent

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JUDGES:	NIALL and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2023
DATE OF JUDGMENT:	14 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 184
JUDGMENT APPEALED FROM:	DPP v Bamblett (County Court, Judge Chettle, 14 November 2022)

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CRIMINAL LAW – Appeal – Sentence – Manifest excess – Whether order for cumulation on attempt to pervert the course of justice charge manifestly excessive – Whether total effective sentence manifestly excessive due to order for cumulation on one charge – Charge involved significant additional criminality – Mathematical proportion of order for cumulation provides no sound basis for upholding ground of appeal – Order for cumulation and total effective sentence not manifestly excessive.

CRIMINAL LAW – Appeal – Sentence – Whether judge sentenced on incorrect factual basis – Implausible judge misunderstood facts – Impugned passage in reasons not difficult to reconcile – Appeal dismissed.

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Counsel
Appellant:		Mr J Connolly
Respondent:		Ms KB Hamill
Solicitors
Appellant:	Michaelson Lawyers and Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WALKER JA:

Overview

On 31 August 2022, the appellant, now aged 28 years,[1] pleaded guilty in the County Court to a total of 11 charges across three indictments.[2] The most serious charges were two charges of aggravated burglary and one charge of being a prohibited person possessing a firearm (first indictment) and one charge of attempting to pervert the course of justice (second indictment).
[1]The appellant’s date of birth is 14 June 1995.
[2]On 4 November 2022, the appellant pleaded guilty to two related summary charges.
Following the plea, the appellant was sentenced on 14 November 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment L11834383.2
1	Aggravated Burglary[3]	25 years	3 years	18 months
2	Theft[4]	10 years	6 months	—
3	Criminal Damage[5]	10 years	6 months	—
4	Aggravated Burglary[6]	25 years	4 years	Base
5	Theft[7]	10 years	6 months	—
6	Threat to inflict serious injury[8]	5 years	12 months	3 months
7	Theft[9]	10 years	6 months	—
8	Prohibited Person Possessing a Firearm[10]	10 years	2 years	12 months
9	Possess a Drug of Dependence[11]	1 year	Fine	—
Indictment M12096809.1
1	Attempt to pervert the course of justice[12]	25 years	3 years	2 years
Indictment M12096809.A
1	Possess a Drug of Dependence[13]	1 year	Fine	—
Summary Charges
10	Assault in company[14]	3 months	1 month	—
16	Drive whilst disqualified[15]	1 year	1 month	—
Total Effective Sentence:		8 years 9 months
Non-Parole Period:		5 years 9 months
Pre-Sentence Detention		616 days
Section 6AAA Statement:		Total Effective Sentence 12 years Non Parole-Period 8 years
Other Relevant Orders: 1. Forfeiture and disposal orders.

[3]Contrary to Crimes Act 1958, s 77(1)(a).

[4]Contrary to Crimes Act 1958, s 74.

[5]Contrary to Crimes Act 1958, s 197(1).

[6]Contrary to Crimes Act 1958, s 77(1)(b).

[7]Contrary to Crimes Act 1958

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 Bamblett v The King

Details

AGLC: Bamblett v The King [2023] VSCA 184
Case: [2023] VSCA 184
Decision Date: 14 August 2023

CaseChat Overview and Summary

Bamblett v The King was a case heard by the High Court of Australia. The respondent, Bamblett, appealed against his conviction and sentence for several criminal offences, including the attempt to pervert the course of justice. The primary issue before the court was whether the order for cumulation on the charge of attempting to pervert the course of justice was manifestly excessive, and whether the total effective sentence was manifestly excessive due to the cumulation order on one charge. Additionally, the court examined whether the sentencing judge had sentenced Bamblett on an incorrect factual basis.

The court considered the nature of the charge of attempting to pervert the course of justice and found that it involved significant additional criminality. It was noted that the mathematical proportion of the cumulation order did not provide a sound basis for upholding the ground of appeal. The court held that the order for cumulation and the total effective sentence were not manifestly excessive. Furthermore, the court examined the assertion that the sentencing judge misunderstood the facts and concluded that the impugned passage in the reasons was not difficult to reconcile with the facts of the case.

As a result, the appeal was dismissed. The court found that there was no manifest excess in the sentence imposed by the trial judge. The order for cumulation on the charge of attempting to pervert the course of justice was not excessive, and neither was the total effective sentence. The court also held that the sentencing judge did not sentence Bamblett on an incorrect factual basis, as the facts could be reconciled with the reasons provided. Consequently, the appeal was dismissed, and the original conviction and sentence were upheld.

Orders