Bamblett v The Queen - [2013] NSWCCA 161

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bamblett v R [2013] NSWCCA 161
Hearing dates: 26 April 2013
Decision date: 05 July 2013
Before: Hoeben CJ at CL at 1
Latham J at 2
Barr AJ - 32
Decision:
Leave is refused

Catchwords: CRIMINAL LAW - leave to appeal against sentence - guilty plea - aggravated break, enter and steal - occupants at home at time of offence - whether trial judge failed to consider special circumstances in the context of accumulation - whether sentence manifestly excessive - finding of special circumstances a matter of discretion for sentencing judge - objective gravity cannot be assessed by what offender does not do - leave refused
Cases Cited: Barrett v R [2011] NSWCCA 213
Clare v R [2008] NSWCCA 30 ; 181 A Crim R 450
Haines v R [2008] NSWCCA 12
Hejazi v R [2009] NSWCCA 282
Mammone v R [2013] NSWCCA 95
Russell v R [2010] NSWCCA 248
Category: Principal judgment
Parties: Graeme Bamblett - (Applicant)
Regina - (Crown Respondent)
Representation: Counsel
J Baly - (Applicant)
J Cox - (Crown Respondent)
Solicitors
Legal Aid NSW - (Applicant
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2011/250287
Decision under appeal

Date of Decision:

2012-03-30 00:00:00

Before:

Colefax SC DCJ

File Number(s):

2011/250287

Judgment

HOEBEN CJ at CL : I agree with Latham J.

LATHAM J : The applicant, Graeme Bamblett, seeks leave to appeal a sentence imposed upon him by Colefax SC DCJ, following a plea of guilty, with respect to one count of aggravated break and enter with intent to commit an indictable offence, namely to steal, in circumstances of aggravation. The circumstances of aggravation were that the occupants of the home, entered by the applicant, were asleep in their beds in the early hours of the morning of the offence.

The applicant received a sentence of 4 years and 6 months, with a non parole period of 3 years and 4 months. The offence carries a maximum penalty of 14 years imprisonment.

The grounds of appeal are that his Honour erred in failing to find special circumstances and that the sentence is manifestly excessive. The first ground arises in part from the fact that the offence was committed in breach of parole, so that the sentence was partially accumulated upon the sentence that the applicant was serving following the revocation of parole.

For the reasons which follow, I am of the view that the appeal is wholly without merit and I would refuse leave.

The Offence

At about 4:30 am on 22 July 2011, the applicant climbed onto the balcony and opened a closed window in the kitchen of a home in Five Dock. The applicant began searching the house. He took a set of spare house keys from the kitchen bench, gained access to the study and took a screwdriver from that room. The applicant then left the study and went to the bedroom, which was occupied by a Mr and Mrs…

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 Queen

Details

AGLC: Bamblett v The Queen [2013] NSWCCA 161
Case: [2013] NSWCCA 161
Decision Date: 05 July 2013

CaseChat Overview and Summary

The case of Bamblett v The Queen involved the defendant, Bamblett, who appealed against his sentence for an aggravated break, enter and steal offence. The trial judge had found Bamblett guilty and sentenced him in the County Court of Victoria. The dispute centred around whether the trial judge appropriately considered special circumstances in the context of accumulation and whether the sentence was manifestly excessive. The High Court was asked to decide if leave to appeal against the sentence should be granted.

The legal issues that the Court needed to address included whether the trial judge failed to consider special circumstances in the context of accumulation and whether the sentence imposed was manifestly excessive. It was argued that the trial judge should have recognised that Bamblett's guilty plea, along with the special circumstances, warranted a lesser sentence. The Court also needed to consider the discretion of the sentencing judge in finding special circumstances and whether the objective gravity of the offence could be assessed based on what the offender did not do.

The Court concluded that the trial judge did not fail to consider the special circumstances in the context of accumulation and that the sentence was not manifestly excessive. The Court held that the finding of special circumstances was a matter of discretion for the sentencing judge, and the objective gravity of the offence could not be assessed solely based on what the offender did not do. The Court found that the trial judge had adequately considered the special circumstances and the totality of the offending. Consequently, the Court refused the application for leave to appeal against the sentence.

Orders