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 - 32Decision: 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 248Category: 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…
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- AGLC
- Bamblett v The Queen [2013] NSWCCA 161
- Case
- [2013] NSWCCA 161
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ, LATHAM J
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