Director of Public Prosecutions v Bamblett

[2021] VCC 1374

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-01262

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON BAMBLETT

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	MILDURA
DATE OF PLEA HEARING:	20 September 2021
DATE OF SENTENCE:	20 September 2021
CASE MAY BE CITED AS:	DPP v Bamblett
MEDIUM NEUTRAL CITATION:	[2021] VCC 1374

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Common Law Assault; Aggravated Burglary; Criminal Damage

Legislation Cited:      Sentencing Act 1991

Cases Cited:Hogarth v R (2012) 37 VR 658; Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169

Sentence:                  Community Correction Order of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O'Doherty	Solicitor for the Office of Public Prosecutions
For the Accused	Ms J. Dodd	Victorian Aboriginal Legal Service

HIS HONOUR:

Introduction

1Aaron Bamblett, you have pleaded guilty to one charge of common law assault, which carries a maximum penalty of five years’ imprisonment, one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment, and one charge of criminal damage, which carries a maximum penalty of 10 years’ imprisonment.

Circumstances of the Offending

2The circumstances of your offending were set out in the Summary of Prosecution Opening dated 6 August 2021, tendered at your plea hearing and marked Exhibit 1.  That document sets out the agreed factual basis for the offending in relation to which you now fall to be sentenced.  Your offending can be briefly summarised.

3At the time of your offending, you resided at a property in Ashton Street, Swan Hill, with your wife and two children.  Your victim in this matter, Jamie Lee Casey, resided nearby in Murlong Street, Swan Hill, with her partner.  The two properties are in fact diagonally opposite each other.

4In the 12 months preceding the offending, there had been two drug-related search warrants executed at Ms Casey’s property, where she had lived for approximately 16 years.  There was a vacant carpark in front of your property, that was frequently occupied by visitors to Ms Casey’s property.  This had been an ongoing source of tension between you and Ms Casey.

5At approximately 6.30pm on 30 November 2020, Ms Casey was at her home when she observed, through her bedroom window, you crossing the road towards her house.  You walked up to the front door, which was open, however the flywire screen door was closed and locked.  Ms Casey could see that you were standing at her front door, holding an axe in your right hand.  You said, “if cunts keep parking over there and I will go off my fucking head cunt”.  Ms Casey, who was terrified and petrified you would come into the house and assault her, filmed this interaction on her phone.  You left Ms Casey’s address and returned home.  Your conduct in this regard forms the basis of Charge 1 on the indictment, common law assault.

6

Some months later, on 13 February 2021, Ms Casey was at her home at approximately 11.00pm with her partner.  She was in the kitchen when she heard the front wooden gate squeak open and heard a male’s voice shouting aggressively.  Ms Casey recognised the voice as belonging to you.  She walked to the kitchen towards the front door, which was open, with the flywire screen door closed.  Ms Casey observed you standing at the front door, holding the same axe that you had in your possession on the previous occasion, and you were yelling at her.  You opened the flywire screen door, still holding the axe.  Ms Casey ran to the other end of the house into a bedroom, where she shut the door.  She then heard approximately two to three loud smashes.  You had entered her house, and remained inside the property for about a minute and a half before leaving. 

Ms Casey heard the front door close as you left, at which point she called the police.  Ms Casey and her partner walked out of the bedroom and observed that their television, which had been mounted on the wall, had been smashed.  Your conduct in this regard forms the basis of Charge 2 on the indictment, aggravated burglary, by entering the property as a trespasser, with intent to commit an offence involving criminal damage without lawful excuse, while armed with the axe.  Your conduct in relation to damage of the television forms the basis of Charge 3 on the indictment, criminal damage.

7You were arrested by police the following day, when police attended at your property and seized various items, including the axe.  You were subsequently interviewed by police and provided a no-comment Record of Interview.

Impact on Victim

8Whilst no Victim Impact Statement was filed in this case, I have no doubt that the details of your offending, on both occasions, as described by the Prosecution in the Plea Opening, would have caused your female victim to be terrified with regards to your aggressive and inherently threatening behaviour on both occasions.

Nature and Gravity of the Offending

9Self-evidently, your conduct on both occasions was both serious and concerning.  A common feature of your behaviour on both occasions was your aggressive behaviour which, no doubt, would have caused Ms Casey to be in fear.  As conceded by your counsel, your violent offending infringed on Ms Casey’s ability to feel safe in her own home.

10With regards to the common law assault, I agree with your counsel that this offending falls in the lower range of seriousness for that particular crime.  Whilst your behaviour was clearly menacing, standing at the front door of Ms Casey’s property while holding an axe and making veiled threats, I accept it was of a short duration and did not involve any physical confrontation or actual force on your part.  Nevertheless, your behaviour on this evening represents a shameful example of threatening behaviour against a woman in the sanctity of her home.

11With regards to the subsequent incident on 13 February 2021, clearly you entered as a trespasser while holding an inherently dangerous weapon in aggressive circumstances.  Again, you invaded the sanctity of your victim’s home.  As she ran into a bedroom with her partner, no doubt she was terrified.  Whilst your conduct with regards to the aggravated burglary is serious in my view, I agree that it lacks many of the hallmarks of more serious examples of aggravated burglary.  There is no evidence before me to suggest your offending was anything other than spontaneous, with little evidence of any premeditation.  It is not alleged by the prosecution that you entered the property with an intention to assault.  You entered alone, and your offending was of short duration overall.  As conceded by the prosecution, the circumstances of your aggravated burglary do not reach the height of offending considered in Hogarth v R,[1] often described as a confrontational aggravated burglary species. 

[1] (2021) 37 VR 658.

12Finally with regards to the criminal damage, I accept that your conduct was limited to two or three smashes, as described by your victim, and the damage was limited to just the one item.

13Nevertheless, the gravity of your offending on this evening must be seen, in my view, in the context of your earlier uninvited attendance at your victim’s property on 30 November 2020.  No doubt your subsequent attendance in the circumstances that I have described accentuated the fear and apprehension experienced by your victim. 

Personal Circumstances

14You are currently 29 years of age. You are of Aboriginal heritage, with your father being a Yorta Yorta man, and your mother being a Gunditjmara woman. You are the second eldest of seven siblings, with four sisters and two brothers.

15You were born and raised on Country in Shepparton, spending a period from the ages of 12 to 17 in Portland before returning to Shepparton. Your formative years involved your exposure to protracted family violence between your parents, and exposure to substance abuse. Both of your parents struggled with substance abuse – your mother with alcohol and your father with drugs. You have explained that from an early age, you took on a caretaker role with regards to your younger siblings, shielding them both literally and metaphorically from the dysfunctional home environment that you endured. I accept that, as is sadly often the case, your trauma is intergenerational – both of your parents had difficult upbringings, and themselves endured hardships. I note in particular that one of your grandparents died whilst in custody. According to forensic psychologist David Ball, who assessed you for the purposes of writing a psychological report which was tendered at your plea hearing and marked Exhibit B, that you have reported behaviours among family members commonly associated with transgenerational trauma such as substance abuse, family violence and a degree of mistrust of societal institutions.

16You have reported some previous problematic alcohol consumption, and some experimentation with illicit substances, but otherwise you do not really seem to have had a history of problematic substance use, or indeed any behavioural dysfunction. Significantly, at the age of 29, you come before the Court with no prior criminal history.

17In terms of education, you attended school at Shepparton High School and completed Year 12, obtaining a VCAL certificate of completion.  You then worked in various low paid temporary positions in the labouring industry, often on a contractual or casual basis. You continue to work in this industry, reporting that you work between 10 to 12 hours a day, five days a week, earning a modest wage. Clearly you are a man who values hard work, and as I stated at your plea hearing, your solid employment history and current status is a highly protective factor in your case.

18As detailed by you in the Sentencing Conversation, you are heavily involved in your Aboriginal community, by way of example, establishing an Aboriginal Men’s Group in Swan Hill to foster cultural connections, and create a safe space for Aboriginal men.

19

You are also a keen and passionate football player, having played for some

15 years.

20You are in a long term, stable and loving relationship with your partner, Ieesha, whom you share three daughters with, aged seven years, five years and six months respectively. Ieesha contributed meaningfully to the Sentencing Conversation today, indicating that you are a family man, and that your behaviour represented by the offending was completely out of character.

21You have moved away from the address where you lived at the time of the offending, and I am satisfied that this in itself is a significant factor reducing the likelihood of further offending on your part, given what appears to have been the simmering tensions that bubbled to the surface on the days of your offending, with regards to your neighbouring victim.

Sentencing Factors

22The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence.  I have already referred to the maximum penalties for your offending, the nature and gravity of your offending and the impact of your offending on your victim.  I have also referred to your previous character.

23I turn now to a consideration of your culpability and degree of responsibility for the offending. Your counsel did not submit that your moral culpability was in any way diluted by virtue of any mental impairment, pursuant to the well-known Verdins[2] principles. Having considered your background, I am satisfied in your case that to some degree, your moral culpability is lessened in a general sense, in accordance with the Bugmy[3] principles. Pursuant to those principles, an offender's background of deprivation is relevant because his moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

[2]        R v Verdins & Ors (2007) 16 VR 269.

[3]            Bugmy v R (2013) 249 CLR 571.

24Whilst to your credit you have obtained an education and solid employment, managed to largely avoid problematic substance use, and have no criminal history, I am satisfied that your background of trauma and early exposure to violence and substance abuse as I have described it, warrants an amelioration of your level of culpability. However, your culpability still remains significant in my view. Anger and frustration, irrespective of how it is that you came to be in this state, does not and cannot absolve you of responsibility for your conduct. Likewise, many people endure significant life stressors such as work issues and family issues, without recourse to such serious criminality.

25In my view, a sentencing discount is warranted due to your early plea of guilty. This matter resolved at Committal Mention stage, and it can rightfully therefore be described as a plea at the earliest opportunity.  Through your plea of guilty, you have accepted responsibility for your wrongdoing and you have facilitated the administration of justice.   Your plea of guilty has saved the community the cost of a trial and of witnesses from giving evidence in contested proceedings.

26Your plea of guilty, therefore, has a significant utilitarian benefit.  Significantly, you entered your plea during the COVID‑19 pandemic.  Given the current unprecedented challenges to the administration of criminal justice in this State due to the scourge of COVID‑19, and the consequential delays to criminal trials in this State, your plea of guilty has a significantly enhanced utilitarian benefit having regard to the significant backlog of cases currently before the courts.  As the Court of Appeal has recently emphasised, the courts must encourage those who are guilty to so plead, and such encouragement must come from an “actual and palpable” amelioration of sentence.[4]

[4]Worboyes v R [2021] VSCA 169 at [35].

27I am also satisfied that a further sentencing discount is warranted on the basis of your genuine remorse.  I accept in the circumstances of this case that your plea of guilty is reflective of your remorse.  Furthermore, according to forensic psychologist David Ball, you ‘expressed regret and remorse for your actions’.[5]

[5]        Psychological Report of David Ball dated 3 September 2021 p.6.

28Furthermore, earlier today you participated in a Sentencing Conversation, in the presence of two Aboriginal Elders, as part of the Koori Court plea hearing procedure.

29As is often the case, that Sentencing Conversation was substantial, direct and at times confronting for you.  I formed the view that you were conscientiously participating and taking responsibility for your actions. As I indicated in the course of that conversation, you impressed me as being extremely thoughtful, articulate and most importantly remorseful. At times you were emotional when describing your behaviour and how you felt about it.

30Part of the Sentencing Conversation to which I referred involves a shaming aspect, which in my view you genuinely embraced.

31As acknowledged in recent authority,[6] meaningful engagement in the Koori Court Sentencing Conversation may operate as a mitigating circumstance.  You faced the shaming that is an integral part of those proceedings and you were prepared to be accountable for your offending.  Participation in the process of a Koori Court is more burdensome than appearing at a traditional plea hearing, and participation therefore may of itself be rehabilitative. 

[6]Director of Public Prosecutions (DPP) v Heyfron [2019] VSCA 130 at [66] - [69].

32Your plea of guilty and genuine remorse are significant mitigatory matters in my view. They decrease the need for any penalty to reflect the purposes of specific deterrence and community protection, and collectively they indicate positive prospects of rehabilitation.

33On the topic of your rehabilitation, I find your prospects to be very good. You fall to be sentenced as a man with an absence of criminal history. To your credit, you have overcome early adversity and developed a solid work history. You are clearly a family man, with a loving partner and three young children. The character references, from both family and members of your community, speak glowingly of you. I was particularly impressed with your voluntary efforts with regards to the establishment of a local Men's Group in the Swan Hill area, with the aim of creating a positive and safe space for Aboriginal Men. That you would have the foresight and willingness to contribute to your community in such a pro social way speaks volumes as to your positive character.

34As I stated in the Sentencing Conversation, your behaviour on these two occasions was abhorrent, and calls for punishment of you, and a message to be sent to other like-minded people that you simply cannot take the law into your own hands, and let your anger and frustration get the better of you in such a serious and threatening way. However, I am satisfied in the circumstances of your case that all of the sentencing factors and principles can be accommodated through an appropriately tailored Community Correction Order.

Sentence to be Imposed

35On all three charges on the indictment, common law assault, aggravated burglary and criminal damage, you are convicted and ordered to undergo and complete a Community Correction Order.

36The duration of the Order will be 18 months.  There are, as is the case with regards to any Community Correction Order, a number of mandatory core conditions and they are as follows.

37You must not commit another offence for which you could be imprisoned during the time that the Order is enforced.  Thus, for the next 18 months, any offence punishable by jail, of which there are many, that you commit, would make you in breach of this Order.

38You must comply with any obligation or requirement prescribed under the relevant regulations.  You must report to and receive visits from an appropriate delegate.  You must report to the community correctional centre within two clear working days of the Order starting, being Swan Hill Community Correctional Centre.

39You must let a community correctional officer know within two clear working days of you changing your address or your job.  You must not leave Victoria without first getting permission to do so.  You must obey all lawful instructions from and directions of a delegate from Corrections Victoria.

40In addition to those core mandatory conditions, there are a number of additional conditions which I am imposing on this Order and they are as follows.  I will not impose a supervision condition.  I will impose the following conditions.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.  That is essentially a treatment and rehabilitation condition with regards to your mental health.

41Likewise, I will impose a treatment and rehabilitation condition with regards to programs to reduce reoffending.  You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.

42You must complete, within the 18 months, 80 hours of unpaid work.  I will indicate this to you, Mr Bamblett, that I have reduced the amount of hours that I otherwise would have imposed in light of your work commitments and the other conditions that I have imposed on this Order.

43As I say, Mr Bamblett, the Order runs for 18 months, those conditions apply for the duration of the Order.

44In the event that you breach the Order by non-compliance or by reoffending, you can be brought back before the Court for breach proceedings.  The penalties include sentences of imprisonment in relation to breaching the Order but also in relation to re-sentencing.  If you breach the Order, I can, in certain circumstances, re-sentence you from scratch on the original charges and obviously that can involve a sentence of imprisonment.

45Knowing what is involved in this Community Correction Order and what the consequences for a breach would be, do you consent to undertaking and completing this Community Correction Order?

46OFFENDER:  Yes.

47HIS HONOUR:  The other order that I make, Mr O'Doherty, I think there is a forfeiture application that was made?

48MR O'DOHERTY:  Yes, there was one, Your Honour, yes.

49MS DODD:  It's unopposed, Your Honour.

50HIS HONOUR:  Yes, I will make the forfeiture Order with regard to the axe.  Ms Dodd, have I missed anything?

51MS DODD:  No, Your Honour.

52HIS HONOUR:  Mr O'Doherty?

53MR O'DOHERTY:  No.

54

HIS HONOUR:  All right, the Order will be generated hopefully as we speak.  It will just be a couple of minutes, Mr Bamblett, for the printing of the report.  You have until Thursday to report to Swan Hill corrections, given the time of the day. 

Mr Bellini, no issues from your end if Mr Bamblett was to report on Thursday with regards to the commencement of the Order?

55MR BELLINI:  No issue, Your Honour, at the moment the first report should be by phone.

56HIS HONOUR:  Yes, well obviously, Mr Bamblett, you can report prior to Thursday and I will leave you with Ms Dodd in due course to speak about that but the sooner the better, obviously.

57Ms Dodd, I will ask you to accompany my associate down to your client so that he can sign the Order and then I will sign it.  Yes, you will get a copy of that Order before you leave, Mr Bamblett.  I think Mr O'Doherty said it best at the end of the sentencing conversation - I don't think we will see you again.  I certainly hope that we don't because if I do that will mean there is probably a problem.  So all right?  I wish you all the best of luck with regards to this order.

58Thanks, Ms Dodd, for your assistance.  Thank you everyone else for your assistance.  Please adjourn.

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