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

---

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)

---

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.

---

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

1. 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.

2. 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, s 74.

[8]Contrary to Crimes Act 1958, s 21.

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

[10]Contrary to Firearms Act 1996, s 5.

[11]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 73(1).

[12]Contrary to common law, maximum penalty pursuant to Crimes Act 1958, s 320.

[13]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 73(1).

[14]Contrary to Summary Offences Act 1966, s 23.

[15]Contrary to Road Safety Act 1986, s 30(1).

Grounds of appeal

1. On 23 March 2023, T Forrest JA granted the appellant leave to appeal against sentence on the following grounds:[16]

   [16]Leave to file ground 2 as a new ground of appeal was granted.

   1.The individual sentences imposed on Indictment L11834383.2 and Indictment M12096809.1, the order for cumulation, the total effective sentence, totality and the non-parole period are manifestly excessive.

   2.The learned sentencing judge erred by sentencing on charge 1 on indictment M12096809.1 on an incorrect factual basis.

Circumstances of the Offending — First Indictment[17]

Incident 1

[17]Indictment L11834383.2.

1. At 2:15 am on 10 July 2020, the appellant and an unknown male attended a property in the Coomboona area looking for Shayne Robson, who they thought owed them money and car parts. The appellant had a tyre lever with him and his co-offender had a hammer. They began looking around the property.

2. AB[18] (the victim), who lived in a bungalow on the property, went outside to see what they were doing. When AB told the appellant and the unknown male that Robson was not present, the pair produced the tyre lever and hammer, threatened AB, forced him back into his bungalow and followed him inside. The appellant and the co-offender took AB’s phone, $500 and various keys (Charges 1 and 2). They smashed AB’s phone as they departed (Charge 3).

Incident 2

[18]A pseudonym.

1. After the incident on 10 July 2020, AB spoke to Robson about what had occurred and Robson gave him a link to a Facebook profile for the appellant. AB sent a message to the appellant saying he wanted his money back. The appellant replied that he would come and see him soon and at 1:40 am on 21 July, that is 11 days after the first incident, the appellant and two other men entered the property at Coomboona. They entered the bungalow with their faces covered. AB, who was in bed, was hit on the head with a weapon by one of the men, causing him to bleed (Charge 4 and Summary Charge 10).

2. AB ran from the bungalow but the appellant and one of the other men caught up with him. The appellant, who was a prohibited person, was carrying a handgun and showed it to AB (Charge 8). AB was forced back inside the bungalow where the men took his wallet and mobile phone (Charge 5).

3. The appellant pointed the gun at AB’s face and said ‘If you ever say anything about me again or my family, I’ll come back and shoot you’ (Charge 6).

4. The appellant and the two men stole AB’s motorbike and left the property (Charge 7).

5. After these two incidents were reported to the police, police observed the appellant riding the stolen motorbike on 31 July 2020. His licence was disqualified at the time (Summary Charge 16). The appellant’s house was searched and a small Ziploc bag containing methylamphetamine was found in a backpack belonging to the appellant (Charge 9).

Circumstances of the Offending – Second Indictment: perverting the course of justice[19]

[19]Indictment M12096809.1.

1. AB made a statement to the police about the first two incidents and gave evidence at the appellant’s committal hearing on 11 August 2021.

2. AB was incarcerated in prison at the time and, after the committal hearing, the appellant, who at this stage was at large in the community, spoke on the phone to Jarron Dixon, who was then a prisoner at the same prison as AB. After telling Dixon ‘they’re taking it to trial’, the appellant told Dixon AB’s name and Dixon replied ‘[AB], all right, sweet, yeah, sweet, all right. I’ll go say hello to him, see how he’s going and that’.

3. On either 12 or 13 August 2021, Dixon approached AB in prison and told him to retract his statement against the appellant, or he was going to get hurt. Dixon told AB that the guys would come to his cell with shivs, and they would be ten deep and that if they did not get him in here (prison) they would get him out there (when he got out of jail).

4. Dixon told AB that he needed to make a statutory declaration stating that he had made a false and misleading statement implicating the appellant. Dixon and another prisoner also threatened to harm AB’s partner. After the threats had been made, AB agreed to retract his statement as instructed.

5. AB then walked with Dixon to the telephone, where Dixon called the appellant and confirmed that AB was willing to retract his statement. AB then went to the front desk of the prison and asked for a statutory declaration form which he took back to his prison cell.

6. On 20 August, after a week had passed without AB making the statutory declaration, Dixon and another prisoner approached AB, threatening him once more, and also making threats against AB;s partner. AB was punched in the face. After this, AB completed and signed a statutory declaration to the effect that he gave a false statement against the appellant (Charge 1).

Circumstances of the Offending — third indictment[20]

[20]Indictment M12096809.A.

1. On 5 October 2021, the appellant was arrested at a property in Shepparton. A small quantity of methylamphetamine was located on the kitchen bench (Charge 1). It was an agreed fact that the amount was for personal use.

The judge’s reasons for sentence

1. In his reasons, the judge recorded that the appellant, through his counsel, had accepted each of the prosecution openings as an agreed statement of facts and that the judge would incorporate both openings into his reasons.[21] The judge then set out in summary form the facts that were relevant to each charge.

   [21]DPP v Bamblett (County Court, Judge Chettle, 14 November 2022), [3] (‘Reasons’).

2. The judge referred to the first incident of 10 July 2020. He accurately set out the circumstances of the second incident on 21 July during which the appellant had drawn a firearm and pointed it at AB’s face.

3. The judge then turned to the charge of perverting the course of justice, describing the offending in the following way:

   Between 11 August and 20 August of last year, you and an associate Jarron Dixon prevailed upon [AB] to withdraw his statement to police. You forced him to provide a false statutory declaration and threatened him with violence unless he withdrew his police statement. Subsequent to your aggravated burglary offences, [AB] was incarcerated [in prison]. You had been charged with the offending I outlined for the previous indictment.

   On 11 August 2021, [AB] gave evidence at a committal hearing in respect of those matters at the Shepparton Court. You contacted Molly Joyce and Jarron Dixon providing [AB’s] name. Dixon was also incarcerated at the time at [the same prison]. The various tape recorded conversations between you, Joyce and Dixon are set out in Exhibit B. Dixon approached [AB] in prison and told him he was your mate, that unless he retracted his statement against you, he would be hurt. He was told he would be stabbed in gaol or if not got in prison, he would be gotten when he got out. He was told to prepare a statutory declaration and what to put in it.

   [AB] agreed to the demands and Dixon reported to you by telephone. [AB] obtained a statutory declaration from the prison front desk, he later told Dixon that he would sign the declaration provided you ceased threatening him and his partner. Dixon passed this onto you via telephone.

   On 20 August, Dixon and another prisoner approached [AB]. He was punched in the head, he then completed the declaration before a prison officer on the front desk. Prisoner officers later spoke to him and he told them that he had been threatened to make the declaration. The police were informed and the prison telephone call recordings were obtained.[22]

   [22]Ibid [11]–[14].

4. Having thus set out a description of the offending, the judge then addressed the appellant’s criminal history and personal circumstances. The judge noted that most of the appellant’s prior offending had related to motor vehicle offences, but that he had been convicted of two assault offences in 2015; making a threat to kill and weapons offences in 2017; and possession of an unregistered handgun and being a prohibited person in possession of a firearm in 2020, which the judge treated as relevant prior offending.[23]

   [23]Ibid [17]–[19].

5. As recorded by the judge, the appellant is a Koori man. He had a disjointed upbringing and compromised emotional development associated with domestic violence, neglect and drug use. From his teenage years he abused illicit drugs leading to a daily methylamphetamine habit. An expert psychologist report from Dr Carla Lechner recorded diagnoses of adjustment disorder with depression and symptoms of complex Post-Traumatic Stress Disorder. He has very little history of employment.

6. The judge accepted that the appellant’s plea of guilty had significant utilitarian value and took into account the effect of COVID-19 and that his complex health issues would make incarceration more burdensome and exacerbate his depression. Overall the judge considered the appellant’s prosects of rehabilitation as ‘guarded’.

7. The Reasons continued:

   Your offending was significant and serious. Your aggravated burglary offences were both serious examples of that offence. On both occasions you were in company, weapons were employed and entry occurred in the early hours of the morning. Violence was employed and property stolen and damaged. Your second aggravated burglary was the more serious offence because of the use of a gun and the infliction of actual violence.

   Thereafter you involved yourself in a serious attempt to pervert the course of justice. You sought to escape justice by forcing your victim to falsely exonerate you. You carried and used a handgun to threaten your victim. It's significant that less than five months beforehand you had been imprisoned for possessing firearms as a prohibited person.[24]

   [24]Ibid [30]–[31] (emphasis added).

8. The judge concluded by noting that general deterrence and specific deterrence, denunciation of the appellant’s conduct and just punishment were all ‘applicable’.[25]

   [25]Ibid [32].

Ground 1: manifest excess

The parties’ submissions

1. The appellant submits that the order for cumulation of 2 years’ imprisonment imposed for Charge 1 of the second indictment (‘the attempt to pervert the course of justice charge’) is manifestly excessive. The appellant notes the order for cumulation is for 66 per cent of the 3-year term of imprisonment imposed on that charge.

2. The appellant accepts that some cumulation was required to represent the additional criminality involved in the charge which entailed distinct criminality. However, the appellant submits that the order for cumulation produced a total effective sentence that was disproportionate to his overall criminality, taking into account the exponential effect of lengthy sentences, as well as:

   (a)his plea of guilty;

   (b)his disrupted home life and childhood, particularly in light of his Aboriginality;

   (c)his constellation of psychological disorders, and limbs 5 and 6 of R v Verdins;[26] and

   (d)the effects of COVID-19 on his time in custody.

   [26](2007) 16 VR 269; [2007] VSCA 102.

3. The respondent submits that the aggravated burglaries were serious examples of that offence and the appellant’s attempt to pervert the course of justice was also serious. Any attempt to pervert the course of justice is to be viewed seriously and denounced appropriately,[27] with the circumstances of the appellant’s attempt to pervert the course of justice making it all the more serious and aggravating the offending. The appellant also had a significant criminal history and the judge found his prospects of rehabilitation were ‘guarded’.[28] The seriousness of offending and the appellant’s prior criminal history meant that just punishment, denunciation and deterrence (both general and specific) were important sentencing considerations.[29]

   [27]Citing Carter v The Queen [2020] VSCA 156, [70] (Niall and Weinberg JJA).

   [28]Reasons, [31].

   [29]Ibid [32].

4. The respondent notes that the individual sentences imposed for the aggravated burglaries were 12 per cent and 16 per cent of the maximum sentence, and the individual sentence imposed for the attempt to pervert the course of justice charge was 12 per cent of the maximum sentence.

5. The respondent submits that the orders for cumulation demonstrate the judge had proper regard to the principle of totality. The conduct the subject of the attempt to pervert the course of justice charge was committed over a year after the aggravated burglaries. It was also committed whilst the appellant was on bail, giving rise to a statutory presumption of cumulation.[30] Notwithstanding this presumption of cumulation, the judge only partially cumulated the sentence. The respondent submits this demonstrates clear regard for the principle of totality. Given the distinction both in nature and in time of the attempt to pervert the course of justice charge from the charges the subject of the first indictment, the respondent submits the only explanation for this cumulation is the judge having regard to the principles recognised in Azzopardi v The Queen.[31]

Consideration

[30]Sentencing Act 1991, s 16(3C).

[31](2011) 35 VR 43; [2011] VSCA 372.

1. The appellant mounts his argument on ground 1 on a relatively narrow basis: the order for cumulation meant that the total effective sentence is manifestly excessive. Although the appellant does not contend that any of the individual sentences are manifestly excessive, he does submit that they are stern and at the upper end. Given the mitigating features, we agree with that assessment.

2. Nevertheless, the attempt to pervert the course of justice charge was a serious example of its kind. AB had made a statement to police implicating the appellant in the serious aggravated burglary offending. At the time he was prevailed upon to recant his evidence, he was in prison. He was extremely vulnerable. The threats were nasty and included threats to AB’s partner. AB’s incarceration would have been significantly more stressful and dangerous with the threat of serious violence hanging over his head. The threats were successful at least to the extent of having AB prepare a statutory declaration falsely recanting his allegations.

3. During the course of argument in this Court, the submission was floated that Dixon had gone beyond what the appellant had asked of him. That submission cannot be accepted. It was not run on the plea and is not borne out by the agreed facts. The judge was entitled to sentence on the basis of the agreed facts and on the basis that the appellant was responsible for the conduct of Dixon in furtherance of the arrangement that he should threaten AB.

4. The steps taken to threaten AB were a further, and grave, step for the appellant to take and arose in the context of the earlier serious criminal offending which the appellant was seeking to conceal.

5. Totality was an important matter for the judge to weigh in the balance, and required the judge to arrive at a sentence that was proportionate to the overall criminal offending.[32] By imposing stern sentences on the aggravated burglary and related charges, the issue became especially acute when the judge sentenced on the second indictment. That said, the order for cumulation needed to mark the additional criminality and address the high need for deterrence for this kind of offending, which is difficult to detect and pernicious in effect. The vice in the offending is not just to the security, safety and wellbeing of AB but to the administration of justice more broadly and is reflected in the maximum penalty of 25 years’ imprisonment.

   [32]Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70.

6. The appellant’s complaint that, as a mathematical proportion, the order for cumulation was 66 per cent of the sentence is factually correct but provides no sound basis for upholding his ground of appeal. Judges do not sentence mathematically and there is no single correct ratio. The extent to which a sentence should be ordered to be served cumulatively on the base sentence is context specific and involves an evaluative judgment that is reposed in the sentencing judge. We are not persuaded that the orders for cumulation or the total effective sentence are manifestly excessive in the sense of being wholly outside the permissible range.

1. Ground 1 must be rejected.

Ground 2: sentencing on an incorrect factual basis

The parties’ submissions

1. The appellant submits the judge sentenced him on the attempt to pervert the course of justice charge on the incorrect factual basis that the appellant had threatened AB with a firearm as part of the offending comprehended by that charge.

2. The parts of the Reasons relevant to this ground are set out above at [24]. The critical paragraph (‘paragraph 31’) is repeated below, with the impugned passage highlighted:

   Thereafter you involved yourself in a serious attempt to pervert the course of justice. You sought to escape justice by forcing your victim to falsely exonerate you. You carried and used a handgun to threaten your victim. It’s significant that less than five months beforehand you had been imprisoned for possessing firearms as a prohibited person.[33]

   [33]Reasons, [31] (emphasis added).

3. The appellant submits that, on a plain reading, the judge has mistakenly transposed an aggravating circumstance attaching to the second incident into the factual circumstances surrounding the attempt to pervert the course of justice charge on the second indictment. The appellant submits the sentence, ‘You carried and used a handgun to threaten your victim’ is a natural continuation of the sentence that precedes it and deals with the same topic.

4. The appellant submits this is not a slip or typographical error, but fits naturally in paragraph 31, and explains the severity of the sentence and the order for cumulation that was the subject of ground 1.

5. The respondent accepts that, on its face, it could appear that the judge associated the use of a handgun with the attempt to pervert the course of justice charge, but submits that, read in context, it is plain the judge was referring to the aggravated burglary charges.

Consideration

1. For the reasons that follow, the respondent’s submission must be accepted.

2. In order to succeed on this ground, the appellant must establish that the judge sentenced the appellant on the wrong factual basis.

3. The first point of note is that the judge expressly incorporated the prosecution opening and accurately summarised the facts relevant to the three principal charges, relating to events on 10 July 2020, 21 July 2020 and August 2021. When dealing with the attempt to pervert the course of justice charge, the judge said that the appellant and Dixon had prevailed upon AB to withdraw his statement. The judge then said: ‘You forced him to provide a false statutory declaration and threatened him with violence unless he withdrew his police statement.’[34] Read fairly, the pronoun is plainly directed to both the appellant and Dixon. So much is confirmed when the judge described the threats which occurred in prison where both Dixon and AB were incarcerated. There is nothing in the Reasons that suggest that the judge believed that the appellant was in prison at the time the threats were made. As the judge noted, the appellant arranged for the threats to AB by telephone in calls between the appellant, Dixon and Ms Joyce, the latter of whom acted as an intermediary between Dixon and the appellant. Having correctly set out the facts, it is entirely implausible that the judge misunderstood how the threats were delivered and then proceeded on the false basis that the threats to AB were in fact made by the appellant in person with the use of a gun.

   [34]Ibid [11].

4. It is true if paragraph 31 is read alone, then the impugned passage, which refers to the use of a gun to threaten ‘your victim’, might seem to be connected with the earlier part of the paragraph, which is dealing with the attempt to pervert the course of justice charge. However, it is not appropriate to read paragraph 31 in isolation. Rather, it needs to be read in context and, in particular, by reference to what immediately precedes it in paragraph 30. The two paragraphs (set out at [24] above), when read together, are not difficult to reconcile. At that part of the Reasons the judge had finished dealing with the applicant’s prospects for rehabilitation, and had moved to the objective gravity of the offending. He commenced paragraph 30 with the unremarkable — and general — proposition that the offending was significant and serious. In that paragraph the judge then addressed the first two incidents. In paragraph 31 the judge moved to the attempt to pervert the course of justice charge, noting that it was serious. The judge then offered an additional reason why the use of the firearm (which could only relate to the second incident) was serious: that it happened less than five months after the appellant had been imprisoned for possessing firearms as a prohibited person.

5. As the respondent submitted, the appellant was imprisoned for firearm possession on 27 March 2020 and the second aggravated burglary took place on 21 July 2020. The attempt to pervert the course of justice charge was particularised as taking place between 11 and 20 August 2021, some 16 months after the imprisonment for possession of firearms. Accordingly, the respondent submits the reference to ‘less than five months’ is clearly a reference to the date of the second aggravated burglary. We agree.

6. When these matters are considered, it is plain that in the impugned passage the judge was dealing with the carriage and use of a firearm in relation to the second aggravated burglary, not in relation to the attempt to pervert the course of justice. That is so even though the judge dealt with these matters out of their chronological order.

7. We are not persuaded that the judge sentenced on the wrong basis and we are unable to uphold ground 2.

Conclusion

1. The appeal must be dismissed.

   ---