Director of Public Prosecutions v Bamblett

[2019] VCC 478

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01244

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY BAMBLETT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2018
DATE OF SENTENCE:	4 April 2019
CASE MAY BE CITED AS:	DPP v Bamblett
MEDIUM NEUTRAL CITATION:	[2019] VCC 478

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Cecil	Office of Public Prosecutions
For the Accused	Ms A. Skinner	Docherty Legal

HIS HONOUR:

1Rodney Bamblett, you have pleaded guilty to one charge of aggravated burglary.  That crime carries a maximum penalty of 25 years' imprisonment.

2There is also before me, at the same time, an appeal from the Magistrates' Court in Shepparton, where you were sentenced to be imprisoned for a period of 15 months, with an eight months minimum.

3Can I say from the outset, insofar as that appeal is concerned, the circumstances were one of endangerment by the way you were driving.  It was clear upon reading the materials that the person who was involved in the driving with you, that is an equal participant in driving the other vehicle, received an adjourned disposition and he had prior matters for violence.

4In those circumstances, parity dictates that sentence simply cannot stand.  What I am going to do in all the circumstances is direct that the Magistrates' Court orders be set aside lieu thereof an aggregate sentence of six months, and I will direct that 180 days be reckoned as having been served under that sentence.  And on that, for a s.6AAA, I will say that but for the plea of guilty, I will sentenced you to be imprisoned for a period of nine months.  So that
180 days has now been served and I do not propose to go back to that matter again.

5You are 28 years of age, you pleaded guilty at an early opportunity and I accept that your plea of guilty is now accompanied by appropriate remorse and a degree of victim empathy.  You must also, of course, get the utilitarian benefit of that plea of guilty as the milieu of this matter displays, very clearly, had this matter run as a trial the Crown would have had enormous difficulties getting the complainants to court and to give evidence.  You plea has saved, I think, the community a significant amount of money.

6You do have prior convictions.  In this situation, bearing in mind the position that the Crown have taken, I will need to go into far greater detail than I might otherwise have.

7Before I go into the summary of this offending, it is important to understand your background.  You are 28 years of age.  You are a still young Aboriginal man; your mother and father both being Aboriginal.  Indeed, as I pointed out to you during the course of these proceedings, I sentenced your father to imprisonment, something approaching 20 years ago.

8You were brought up in a violent family and you have suffered all the disadvantages of that.  However, when one looks at your criminal history, it is surprising that it is not far greater than what it appears.

9You were born in 1991.  Your first appearance in a court is when you are
18 years of age for crossing a railway line and failing to provide a valid ticket, as well as criminal damage.  That is in the Children's Court.

10You then have the Magistrates' Court in Echuca, in April 2013, some four years later, where you, as a young Aboriginal man with probably no employment, were fined a total of $1,400 for possessing a controlled weapon and unregistered motor vehicle, property suspected of crime and forging some document relating to the Road Traffic Authority.  That was the extent of your criminal history up until the middle of 2014.  You had never been given a community disposition and had simply been given a bond and a fine.

11In July 2014, you were convicted in the Shepparton Magistrates' Court of three charges of drive whilst authorisation suspended, one of fail to answer bail and one of drive whilst disqualified.  There was also an unregistered vehicle, on which you were convicted and discharged.  You, at that point in time, in your early 20s, with a very limited criminal were incarcerated for three months.  There was no, apparently, suggestion of any form of community based order or any form of assistance.  There was no time declared, so I am assuming that that sentence started on 7 July 2014.

12On 17 September 2014, a number of other matters were dealt with in the Shepparton Magistrates' Court.  They involved serious violence, and I am aware of the nature of that, and it was serious; fail to answer bail and the use of amphetamine; also driving offences and a threat to kill.  The end result of all of that was that you were sentenced to be imprisoned for a period of two years and three months and a non-parole period was fixed at 18 months.

13A month or two or three weeks later on charges of robbery and intentionally cause injury, in the Echuca Magistrates' Court, you were sentenced to be imprisoned for a period of six months to be served concurrently.

14So that sentence of two years and three months, commencing in September 2014, had within it the opportunity of parole.  You never accepted that parole.  You, on the material before me, found gaol a safe place to be; possibly for the first time in your life.  You declined parole and were ultimately released after completing the entire sentence without any form of assistance or any form of community order.

15You were able to then, as I understand the situation, basically stay out of trouble until the matter relating to the appeal, which I have just dealt with, which occurred on 1 December 2017.  It is clear during that period of time that you were able to work and had various employments of different sorts and were using amphetamines heavily.  It was during that period of time that, obviously, this incident occurred.

16So your criminal history, for a young Aboriginal man, in the circumstances in which you have been brought up, bearing in mind your early introduction to hard drugs; it shows there is certainly promise for you.

17What occurred in late December 2017 is what gives rise to the indictment before me, of aggravated burglary.  The Crown opening, in my view, does not really describe how all this came about and is somewhat unbalanced.  Accordingly, I propose to go into more detail as to what really did occur.

18You, at that point in time, were clearly using drugs and there is no argument about that.  You were going out with a lady known as Haley Sherron.  She had, as I understand it, children.  On 21 December 2017, she was at home when a Kelly Harbrow, who of course is the complainant in this matter, of the aggravated burglary, came over to the house.  She said that she just popped into say hello and then left.  About 20 minutes after she left, a Commodore arrived and skidded up the driveway of Ms Sherron and a couple of other women got out and started screaming at her, "Are you fucking Rodney".  It was said a couple of time and Ms Sherron was punched and struck again and could not believe, effectively, what was going on.  She had been punched in the face, was wearing sunglasses, she had a bruised nose and cheekbones. It was a visible bruise.  You, Mr Bamblett, were present and held the door closed and nothing much occurred of that other than the damage that had been done to your partner.

19On 29 December, in the morning, a Thomas Briggs inboxed her about you.  The message was replied to and she realised during the course of that day she was being followed by two cars.  The cars were full and they were driving around revving their engines to catch her attention and clearly over the whole period of time endeavouring to intimidate her.  She said that she saw those cars pretty much everywhere she went.

20At about midday on that day Kelly Harbrow, that is the complainant, and her sister, as I understand it, came to Ms Sherron's house.  Kelly was wearing plastic gloves and carrying a cricket bat.  Kelly said,

"I don't want to be involved in Thomas and Rodney arguing.  I told her I didn't want to be either.  They got me to drive them to the roundabout", she said and when they got there Daniel was waiting.

21Later on the morning of the 30th, she came home to find the front loungeroom window of her house smashed.  Someone had been inside and took DVDs and she believed that had been done just to indicate that someone had been inside the house.

22At about 6 am, on 30 December, she answered the door and there was a car in the driveway. Again, people were present and said to her, "You're stupid if you think you're safe".  They told her that people hate her because she was with you, that is you, Mr Bamblett, and ultimately they left.

23She said in her statement to the police, which was made on 4 January,

"Ever since 29 December I've been stalked, followed, intimidated and harassed by Daniel Briggs, Thomas Briggs and fuck knows who else, all over Rodney.  They keep coming to the house".

24She said she could not sleep.  She said she was literally physically and emotionally exhausted and said,

"I cannot do this anymore".

25That was the lead up to how all this occurred.

26You, I accept, were aware of what had been occurring, insofar as your partner was concerned and had, in your mind, to do something about it.

27You had known Kelly Harbrow for some ten years, as I understand it, and knew what was going on in the background.  I have already been through what
Ms Sherron had to say, but insofar as the Crown opening is concerned, at approximately 6 am, on 30 December 2017, Harbrow was walking to the McDonald's restaurant.  A car pulled up, and I will not go into the details.  It will tie in with what matters that are in the statement of Hayley Sherron that I have no read out.

28Those people indicated they wanted to see Hayley Sherron.  Ms Habra believed that you were living with Sherron and Rachael, who I believe is her sister, met with Sherron, Will and Ms Harbrow and went to McDonald's.  A short time later they left McDonald's and returned to Ms Sherron's house.  Once there, Ms Habra rang Ms Sherron to tell Rachael to come outside, but she did not.

29At approximately 6.30 am, Mcleigh and Mcleigh's four children were at their residence in McKean Street, Mooroopna, and at some point in time Ms Harbrow received a phone call from Ms Sherron.  Ms Sherron asked Ms Harbrow whether she was home and what was going on with Rachael and that conversation I do not need to go into.

30Shortly after that the Harbrow then heard the sound of a car skidding and the sound of a really loud bang, the result of a car hitting a fence.  She walked to the kitchen and saw you standing at the backdoor.  You were seen to have a large red baseball bat.  There is some argument about an axe, but I am not sentencing on that basis, it is not part of that charge.  At the time the backdoor was shut and it was unlocked.  You hit the glass sliding door with the baseball bat, which caused it to shatter.  You entered the residence while armed with the baseball bat in your hand and that is the charge of aggravated burglary.

31Habra then observed you to be "going off", but did not know what you were talking about, she claims.  There were children nearby and Harbrow said, "Hey, my kids".  You then ushered Habra into one of the bedrooms and she said to you, "What's this about, I have kids here", effectively.  Once inside you walked towards her, so she claims she backed up and sat on a bed and you started screaming at her, "Shut the fuck up, were you trying to set me up?"  McClay said, "We're doing nothing".  You told her to stay out of it and threatened basically.  Stood over Habra and said, "I had a lot of respect for you".  You then turned around and proceeded to walk out of the bedroom.  One of the children then screamed and you told her, "Don't worry, they're just being naughty", and you then went out through the back sliding door and left.  Harbrow said she then heard a car start up and take off.

32When you were interviewed by police, you basically pointed out that your partner had been terrorised by all these people and you just had simply had enough.

33You believed that there were probably more people there than there actually were and you pointed out you did not cause injuries to anybody, you did not actually attack anybody and it was in a situation of what you perceived as provocation in the overall circumstances.  Being aware of the nature of some of the people involved in this from my circuits in Shepparton, I am fully aware of the milieu in which all of this occurred.

34You were taken into custody and, as I will explain later, remained in custody for some 306 days.  What I am told, there are no matters pending and totally understandably in this situation, there are no victim impact statements that have been filed. That does not surprise me in the slightest.

35Your circumstances are that you were ultimately bailed after 306 days and you went into residential accommodation.

36Your childhood history can be outlined in fairly brief compass.  As I said, you were born in 1991, you grew up in Shepparton.  You family life was characterised by significant family violence.  Your father and mother separated when you were nine years old.  You are the second oldest of 19 children.  Family violence was a major part of the relationship ending and your mother went to Melbourne with a number of the siblings, you remained with your father.  He abused substances and was regularly violent towards you, and as I have indicated, I have had previous experience of your dad.

37Your childhood was characterised by disadvantage, insufficient food, lack of access, your father went from time to time, and virtually no medical care.  You, at one stage, went to stay with your mother but experienced verbal and emotional abuse there too.

38You began running away from home at a very early age and spent periods of timing sleeping rough and engaging in minor theft just to live and just to purchase food.  As you became older, as a teenager, you moved back to live with your father in Shepparton as he had changed his living circumstances.  From that point on, he was no longer as violent towards you, but you attribute that to being a much bigger boy and able to, effectively, defend yourself.

39You got into strife at school.  You were suspended for fighting and eventually expelled.  To your credit, you went to TAFE, got a certificate in Land Management and Conservation.  You worked for local councils for periods of time, but your difficulties were always that you were affected by drug use, you have lack of funding and clearly relationship issues.  By your mid-20s, so only a few years ago, you were heavily addicted, I believe, and were shifting towards ice.  You have an eight year old son, who you have lost contact with.

40As I have said, you have now spent that original sentence, which you did the lot of, in prison and you now have another 306 days.  You reported "feeling safe" in prison.  You have used the time in gaol to be as productive as possible.  It is clear that the last time you were released, you were drug free for a period of time and indeed worked with Moama Land Council, but ultimately, and so far as the peer group was concerned, you returned to drugs and here we all are.

41On 23 August of last year, you participated in Koori Court in Shepparton.  You will recall clearly, I have no doubt, that the elders that were present in that Koori Court were Uncle Len and Auntie Pam.  These matters of your background and the fear of being released from prison and your fear of being on parole were all canvassed.  Your mother was present at that hearing as well.

42You engaged with the elders and expressed your desire to try and turn your life around.  If anybody ever wanted to understand just how powerful and how effective Koori Court can be they should have been there that day.  I genuinely believe that the conversation that took place between your elder, Uncle Len, and yourself, in terms of you turning your life around was one of the most powerful interactions I think I have ever seen between two human beings.  I really believe that at that moment in time, of talking to him and understanding and the respect that he showed you, the things he told you, which I won't repeat here, which he said he had never told any other person before, was a circumstance where you became determined that you were going to become a strong, young, Aboriginal man.

43We discussed matters that could occur, you would remain in custody because everyone was concerned about where you would go and what would happen if you got out.  At that point in time there was discussion at the table, and with your counsel about going to Wulgunggo Ngalu Learning Place up in the hills in Gippsland.  That would have involved a residential program and whilst they are reluctant to take people directly from gaol it would have involved you being in their care and endeavouring to do programs.  You were ultimately found to be acceptable by Mr Braybrook up there and, as all counsel in this matter are aware of, had conversations with the various people involved in the background that I have known for years through my involvement with Aboriginal justice.

44What was felt to be better though and, again, this was all discussed in open court and pointed out, was that you go into the program, which is run by Mr Alan Thorpe and others known as Dardi Munwurro.  After a period of time, it was organised that you were to be bailed by me to their 16 week residential program, which is in the northern suburbs.  You went there on 5 November, and I think it is fair to say that people basically had their fingers crossed.

45The fact of the matter is that the reports that I have from them, from Mr Moore and the oral evidence that we have had from Mr Thorpe and Byrne, I think.  Certainly, Mr Thorpe's father, were that you participated well.  They said that you began to feel empathy for victims in these situations, you dealt very strongly with aspects of domestic violence, seeing things from other people's points of view and taking responsibility for what you say and what you do, and what responsibility for what happens around you. 

46You got through that program and they said that in one of the reports, one of the attitudes or one of their attempts at Dardi Munwurro is,

"We support these men to step into their roles and responsibilities as they go forward into the future and draw on their cultural heritage and knowledge to be proud Aboriginal men as providers and protectors in their family and community.  We support them to think about their impact and the legacy they want to leave."

47Oral evidence before me from Mr Alan Thorpe was that that was exactly what you did and that is exactly what you participated in and that is exactly what has been achieved.  It is a remarkable turnaround and that program has now been completed.

48Also what I received what a report from Mr Kulkens, a psychologist.  He initially met you through your engagement in the Dardi Munwurro program and talked about the aspects of your dealing with him.  He talked about, at that stage, you still residing there and he believed that you were doing very well, that you were expressing remorse for previous lifestyle choices and that you demonstrated increasing clarity regarding acceptable and unacceptable behaviour.

49You attended sessions with the writer and they lasted between 50 and
90 minutes and you acknowledged possibly for the first time I suspect, your history of childhood trauma.  You repeatedly expressed to him a desire to improve your ability to cope with life stressors and you have also indicated to him your intention to ask respectfully and non-violently.

50You have continued to have regular appointments with him and you continue to do so if you were able.  He said at the end,

"During the period Mr Bamblett's been known to the writer, Mr Bamblett's continued to his desire to be a positive role model for his children, his family and his community.  Mr Bamblett has demonstrated increasing awareness for the consequence of his actions, including the inevitability of legal consequences for illegal behaviour.  The negative impact of socially inappropriate behaviours have on himself, his future and on the well-being on those around him.  Mr Bamblett's expressed his further note to continue growing more responsible and respectful so far as all that concerned."

51I think I might have just said the evidence and Uncle Ross Morgan was here on one of those occasions when we were in open court and all of those strong Aboriginal Elders and leaders have expressed in open court that they are very proud of what you have been able to achieve in the last few months.  Being a devotee and very experienced in Koori Court, I can say to you quite frankly, so am I.

52You now are back in Echuca.  You have support.  You have been referred to various programs in Echuca and I have had you assessed for a community corrections order.  What has been put in place is that you will continue to have Aboriginal organisations assist you for support and also so far as your family is concerned, that support of them.  You are not using and have now not used for something in the order of a year, bit over a year.  If there is ever going to be a time for your life to be completely turned around or finally turned around, I think this is it and I think it is a set of circumstances that should be grasped.

53I am well aware of various authorities in regard to aggravated burglaries.  To a large extent, these matters all seem to be in the eye of the beholder.

54Since you have been in gaol, you have been acting as an adviser or mentor to young Aboriginal men in custody and it is quite clear talking to you, you have done over an extended period of time that you are an intelligent young man, a very articulate young man and obviously I never have to deal with you when you are intoxicated.  A young man with a warmth.  I think there is no reason why you cannot continue this wonderful rehabilitation that you have undertaken.

55The prospect of your continued rehabilitation is not just up to you.  It is going to be up to the Aboriginal community groups in support of you and your family.  But your relationship would appear to be being restored with a level of respect.  You have the programs to do with the community corrections people and the assistance from them, and you will be working and you will not be using drugs.

56You have been found acceptable for a CCO.

57I am not going to go through all the cases relating to the sentencing of Aboriginal people.  They are well known.  I am aware of all those matters. Very, very much aware of them.  I, in this situation, believe that it would be a disaster to send you back to gaol in all these circumstances after all you have done and I believe that such a sentence would gain no useful purpose whatsoever and would potentially destroy one of the most significant acts of rehabilitation I have come across as a judge or as a barrister for that matter.

58I will refer to the comments of Her Honour Neave JA in the case of Toumngeun.  She said this and referred back to the Court of Appeal in the matter of the DPP v Leech.

"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case which seems to the judge to be an instance where an opportunity for reformation of an offender ought to be grasped.  That afterall may be a decision which would bounce very much to the benefit of the community."

59She went on to quote Maxwell P from DPP v Tocava,

"The sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred in a case of a serious offence if in the long term the community interests will be best served by that course.  This court should seek to promote public understanding of the fact that apart from the interest of the individual and it is sought to rehabilitate, an important interest in itself is the vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."

60It is not to be forgotten that in this situation, before you were released to continue your rehabilitation, you served 306 days in gaol.  It is clear that you handled gaol pretty comfortably.  There is a real risk I would have thought of you being institutionalised.  This is a situation where I think the nettle has to be grasped.

61I think that the matters referred to in the decision of Toumngeun are particularly apt in your situation.  I believe that the sentence I am imposing does not involve mercy.  I think it is a just sentence, objectively and subjectively in all the circumstances.  If it did require the involvement of mercy, I would not hesitate to do so.

62I will direct that the reports and other matters remain on the court file because of course, I have only referred to them in brief.

63The sentence is, if you agree, that on the charge of aggravated burglary, you will be sentenced to be imprisoned for a period of 306 days.

64I direct that 306 days be reckoned as having been served under this sentence.

65You will also, if you agree, be placed on a community corrections order, which is a significant punishment in itself and requires a level of cooperation which is not easy for people in your circumstances.  I understand that.  It is no soft touch to give such a disposition.

66That order will not include work hours where you have done so much gaol time.  I think that will be gratuitous.  But it will include the condition that you will be for treatment and rehabilitation of drugs, treatment and rehabilitation of programs to reduce reoffending and supervision.  If I have not already said so, it will be conviction and will be for a period of three years.

67There is clearly a significant ongoing punitive aspect to all of that and I do not need to go into decisions such as Boulton and the like to establish those principles.

68In this particular matter, if you agree to enter that community corrections order, three years is an extensive period of time.  In a situation such as this, the concept of s.6AAA is an impossibility.  Had this matter been conducted, as one does not know what the end consequences of that might have been, bearing in mind the difficulties, I have no doubt the Crown would have very early in the proceeding run into.

69However, had you gone to trial and ultimately been convicted insofar as the matter is concerned, I would have imposed the same sort of penalty that I have and bearing in mind the case of Younger, I would have simply had a more significant period of custody prior to your going onto the community corrections order, but the basic disposition other than a more extensive period of time in prison.  It would have been pretty much the same.

70Now apart from him signing it, there is no other orders I have to make?

71MR CECIL:  There has been discussion about a 464.  We did
not ‑ ‑ ‑

72HIS HONOUR:  We went through that once before.  He has done it before.

73MR CECIL:  Can I suggest this compromise?  I will ask for the order.  I will go back to the office.  I can double check.  If he is already on the register, I will not take it any further and if he is, then I will just send the order in.

74HIS HONOUR:  All right.

75MR CECIL:  I discussed it with Ms Skinner and there is consent.

76HIS HONOUR:  You follow that, Ms Skinner?  If there is a 464?

77MS SKINNER:  Yes, yes, Your Honour.

78HIS HONOUR:  So what I will just explain to Mr Bamblett is that if that comes through and there is a 464, he will have to go down to the Echuca Police Station and give them a saliva sample for DNA purposes.  That order, I will have it sent to you or your instructing solicitors and if I get an undertaking that, Mr Bamblett will be made aware of it, all right?

79MS SKINNER:  Yes, Your Honour.

80MR CECIL:  And a warning too, Your Honour, just to be on the safe side.

81HIS HONOUR:  That is right.  Yes, if you refuse to provide such a sample, police can use reasonable force to take it from you and I am sure from your experience of life, Mr Bamblett, you know what reasonable force means to a policeman.  I do not think we need to go there.  All right, so that document should be there.  If that can be handed and signed by Mr Bamblett now.

82MS SKINNER:  Yes, Your Honour.  I am not exactly sure how illiterate if at all Mr Bamblett is.  So what that involves if it is three years.  It is with conviction.  It has got supervisor.  It has got the drug program and it has got the program to reduce reoffending, all right?

83Can I just say this to you?  Stressors are going to occur.  You have got lots of people to talk to you.  You have got your Uncle Ross.  You have got Thorpey, Uncle Boots, all great men.  If things start to go astray or stressors start to get on top of you, you have got a lot of people you can go straight to straight away, all right?

84ACCUSED:  Yes.

85HIS HONOUR:  Not to mugs down the jetty using ice, all right?

86ACCUSED:  Yep.

87HIS HONOUR:  People at Corrections understand the circumstances of all this and again, if things start to go a bit astray, you can always bring this back before me to either readjust it or work out another way of going around it.  Do not let it get to a stage where you are using.  It just get too late then.  That is no good to anybody.

88ACCUSED:  Yep.

89HIS HONOUR:  All right.  Good luck with the kids and we will just see how it all pans out.  So I will not need to do anything.  If that is sent back to me signed, I will then sign it and we will then regard the order as made.

90ACCUSED:  Yep.

91HIS HONOUR:  All right, that is fine then.  All right, so what will happen is it gets sent back to me.  I sign it and then a copy gets sent back to you with my signature on it.

92ACCUSED:  Yep.

93HIS HONOUR:  So it is all a bit roundabout, but that is about the best way of doing it.

94ACCUSED:  Okay.

95HIS HONOUR:  All right.  Yes, thanks.

96MS SKINNER:  As Your Honour pleases.

97HIS HONOUR:  Yes, thanks, Mr Cecil for your participation this whole process.  It has been great assistance.  Thanks, Ms Skinner.  Good luck, Rodney.

98ACCUSED:  Thank you.

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