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R v Blundell

R v Blundell

Case [2022] ACTSC 379 23 February 2022

Jurisdiction

Sentencing

Attempted Aggravated Burglary

Dishonesty

Motor Vehicle Offenses

Childhood Disadvantage

Drug Addiction

Parity Principle

Drug and Alcohol Treatment Order

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Blundell
Citation:	[2022] ACTSC 379
Hearing Dates:	4 February 2022, 18 February 2022
Decision Date:	23 February 2022
Before:	Refshauge AJ
Decision:	1. Peter Dennis Blundell be convicted of attempted aggravated burglary and sentenced to 12 months imprisonment, commencing on 28 December 2021 and expiring on 27 December 2022. 2. Peter Dennis Blundell be convicted of dishonestly riding in a motor vehicle without the owner’s consent and be sentenced to 3 months imprisonment, commencing on 28 November 2022 and expiring on 27 February 2023. 3. A non-parole period of 4 months be set, commencing on 28 December 2021 and ending on 27 April 2022.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted Aggravated Burglary – Dishonestly Riding in a Motor Vehicle Without the Owner’s Consent – Childhood Disadvantage – Drug Addiction – Parity Principle – Drug and Alcohol Treatment Order Application – Application Withdrawn – Sentence of Imprisonment
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J Criminal Code 2002 (ACT) ss 44, 312, 318
Cases Cited:	Brown v The Queen [2020] VSCA 212; 62 VR 491 Douglas v The Queen (1995) 56 FCR 465 Mill v The Queen (1988) 166 CLR 59 Millard v The Queen [2016] ACTCA 14 R v Antonovic (No 3) [2021] ACTSC 338 R v Bonfield [2021] ACTSC 362 R v Coleman [2021] ACTSC 349 R v Connors [2022] ACTSC 374 R v Crawford (No 1) [2020] ACTSC 245 R v Elphick [2021] ACTSC 9 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v JRN [2019] NSWDC 496 R v McHughes (No 3) [2021] ACTSC 344 R v Slattery [2021] ACTSC 154 R v Snow [2021] ACTSC 342 R v Tonna (No 2) [2020] ACTSC 362 R v Verdins [2007] VSCA 102; 16 VR 269 R v Winters [2019] ACTSC 289 Saipani v The Queen [2021] ACTCA 5 WAP v The Queen [2017] NSWCCA 212 Webb v O’Sullivan [1952] SASR 65
Parties:	ACT Director of Public Prosecutions ( Crown) Peter Dennis Blundell ( Offender)
Representation:	Counsel C Daly (4 February 2022, 18 February 2022), C Muthurajah (23 February 2022) ( Crown) D Berents (4 February 2022), E Bayliss (18 February 2022, 23 February 2022) ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Offender)
File Number:	SCC 187 of 2021

REFSHAUGE AJ

Introduction

As explained in R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[8], the Drug and Alcohol Sentencing List of this Court, the ACT Supreme Court, is part of an international attempt to address the place of drugs in initiating and facilitating crime by providing intensive treatment combined with judicial supervision in an effort to eradicate the cause of the criminogenic behaviour of offenders, by allowing them to become and remain abstinent from the abuse of alcohol and other drugs.
The research shows that these attempts have been successful in…

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 R v Blundell

Details

AGLC: R v Blundell [2022] ACTSC 379
Case: [2022] ACTSC 379
Decision Date: 23 February 2022

CaseChat Overview and Summary

In the matter of R v Blundell, the respondent, Peter Dennis Blundell, faced conviction and sentencing for attempted aggravated burglary and for dishonestly riding in a motor vehicle without the owner's consent. The case was heard in a relevant Australian court where the respondent's background, including childhood disadvantage and drug addiction, was considered alongside the charges. The court was tasked with determining the appropriate sentences for both offences and whether a drug and alcohol treatment order should be considered.

The court needed to decide the appropriate sentences for each offence, considering the principles of parity and the nature of the crimes. The respondent's history of childhood disadvantage and drug addiction was taken into account, along with the need to ensure the sentences were just and appropriate. The court also needed to determine if the application for a drug and alcohol treatment order should proceed, which was subsequently withdrawn.

The court carefully weighed the respondent's background and the nature of the offences, ensuring that the sentences reflected the seriousness of the crimes while considering the mitigating factors. Ultimately, the court found that the appropriate sentence for attempted aggravated burglary was 12 months imprisonment, and for dishonestly riding in a motor vehicle without the owner's consent, 3 months imprisonment. The sentences were to run consecutively, with a non-parole period set at 4 months.

The court ordered that Peter Dennis Blundell be convicted of attempted aggravated burglary and sentenced to 12 months imprisonment, commencing on 28 December 2021 and expiring on 27 December 2022. Additionally, he was convicted of dishonestly riding in a motor vehicle without the owner’s consent and sentenced to 3 months imprisonment, commencing on 28 November 2022 and expiring on 27 February 2023. A non-parole period of 4 months was set, commencing on 28 December 2021 and ending on 27 April 2022.

Orders

Orders of the court

1. Peter Dennis Blundell be convicted of attempted aggravated burglary and sentenced to 12 months imprisonment, commencing on 28 December 2021 and expiring on 27 December 2022.

2. Peter Dennis Blundell be convicted of dishonestly riding in a motor vehicle without the owner’s consent and be sentenced to 3 months imprisonment, commencing on 28 November 2022 and expiring on 27 February 2023.

3. A non-parole period of 4 months be set, commencing on 28 December 2021 and ending on 27 April 2022.

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

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Citations

AGLC Citation

R v Blundell [2022] ACTSC 379

Most Recent Citation

R v Subasic [2022] ACTSC 380

Cases citing this decision · 3 of 3 shown

Director of Public Prosecutions v Muell
[2024] ACTSC 184

…0 Ngata v The Queen [2020] ACTCA 18 O’Brien v The Queen [2015] ACTCA 47 Peter v Brownlie [2023] ACTSC 198 R v Barrett [2015] ACTSC 280 R v Blundell [2022] ACTSC 379 R v BS-X [2021] ACTSC 160; 16 ACTLR 238 R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 R v Elphick (No 2) [2015] ACTSC 23 R v Goodrich (1952) 70 WN (NSW) 4…
R v Rowlands (No 2); Director of Public Prosecutions v Rowlands
[2024] ACTSC 143 Para 1

…ve had regard to the authorities identified by the prosecution, namely, DPP v Woods [2023] ACTSC 380, DPP v Larkham [2023] ACTSC 68, and R v Blundell [2022] ACTSC 379, albeit, as the prosecution submitted, the comparative value of them is limited given the distinction in the circumstances of the offending.…
R v Subasic
[2022] ACTSC 380 Para 3

…being somewhat reduced for that offence was remarked on more recently in R v Winters [2019] ACTSC 289, followed, because of parity, in R v Blundell [2022] ACTSC 379, namely a sentence of three months imprisonment for the offence.…

View all 3 citing cases →

Cases cited in this decision · 23 of 23 shown

R v Tonna (No 2)
[2020] ACTSC 362 Para 4

…e situation is where an otherwise eligible and suitable person cannot be the subject of a Treatment Order. This can, as explained in R v Tonna (No 2) [2020] ACTSC 362 at [65]–[66], [70]–[73] be because a Treatment Order cannot be continued or even made in the first place where there are no rehabilitation facilities…
R v Connors
[2022] ACTSC 374 Para 15

…Again, it can be committed in a variety of circumstances and the relevant ones are set out in detail in R v Connors [2022] ACTSC 374 at [63]. It is only necessary to refer to the relevant ones.…
R v Bonfield
[2021] ACTSC 362 Para 5

…the question of accommodation. See, for example, R v Coleman [2021] ACTSC 349 at [119]; R v Snow [2021] ACTSC 342 at [52], [85]–[88]; R v Bonfield [2021] ACTSC 362 at [125], [185]). Nevertheless, stable and safe accommodation can be essential to success under a Treatment Order. Thus, it does cause challenges, espe…
R v McHughes (No 3)
[2021] ACTSC 344 Para 7

…it can be committed in a variety of ways and the courts have identified relevant factors. The Court set out those for burglary in R v McHughes (No 3) [2021] ACTSC 344 at [28], after an analysis of the relevant cases. As aggravated burglary is a burglary offence committed in specified circumstances of aggravation, t…
R v Snow
[2021] ACTSC 342 Para 5

…has, however, taken a generally liberal view towards the question of accommodation. See, for example, R v Coleman [2021] ACTSC 349 at [119]; R v Snow [2021] ACTSC 342 at [52], [85]–[88]; R v Bonfield [2021] ACTSC 362 at [125], [185]). Nevertheless, stable and safe accommodation can be essential to success under a T…
R v Coleman
[2021] ACTSC 349 Para 5

…This Court has, however, taken a generally liberal view towards the question of accommodation. See, for example, R v Coleman [2021] ACTSC 349 at [119]; R v Snow [2021] ACTSC 342 at [52], [85]–[88]; R v Bonfield [2021] ACTSC 362 at [125], [185]). Nevertheless, stable and safe accommodation can be essential to succes…
R v Antonovic (No 3)
[2021] ACTSC 338 Para 1

…As explained in R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[8], the Drug and Alcohol Sentencing List of this Court, the ACT Supreme Court, is part of an international attempt to address the place of drugs in initiating and facilitating crime by providing intensive treatment combined with judicial supervision in a…
Saipani v The Queen
[2021] ACTCA 5 Para 6

…f the co-offender, that is, the sentence set out in R v Winters . This is because of the parity principle. The Court of Appeal in Saipani v The Queen [2021] ACTCA 5 at [56]–[57] explained that principle as follows: 56. The “parity principle” is a manifestation of the fundamental principle of equality before the l…
R v Slattery
[2021] ACTSC 154

…C 245 R v Elphick [2021] ACTSC 9 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v JRN [2019] NSWDC 496 R v McHughes (No 3) [2021] ACTSC 344 R v Slattery [2021] ACTSC 154 R v Snow [2021] ACTSC 342 R v Tonna (No 2) [2020] ACTSC 362 R v Verdins [2007] VSCA 102; 16 VR 269 R v Winters [2019] ACTSC 289 Saipani v The Queen […
R v Elphick
[2021] ACTSC 9 Para 4

…however, it is also permissible, but with caution, to consider sentencing statistics as set out in the ACT Sentencing Database. Thus, in R v Elphick [2021] ACTSC 9 at [154] the Court said: The limitations of sentencing statistics are well-known. However, for what they are worth, sentencing statistics show that,…
R v Crawford (No 1)
[2020] ACTSC 245 Para 14

…s a maximum penalty of 5 years imprisonment or a fine of $80,000, or both. The seriousness of the offence has been described in R v Crawford (No 1) [2020] ACTSC 245 at [38] and what the Court there said is adopted here.…
Brown v The Queen
[2020] VSCA 212 Para 13

…Further, the Victorian Court of Appeal held in Brown v The Queen [2020] VSCA 212; 62 VR 491 at 509; [68] “that a personality disorder is likely to engage the Verdins principles only in a case of some severity.” As the Crown pointed out, there was no such evidence. Further, it did not establish a “clinically signif…
R v Winters
[2019] ACTSC 289 Para 7

…Facts, Mr Blundell’s Criminal History, a Victim Impact Statement, which Ms Daly read out to the Court so Mr Blundell could hear it, and R v Winters [2019] ACTSC 289, the sentencing remarks in the sentencing of Mr Blundell’s co-offender.…
R v JRN
[2019] NSWDC 496 Para 7

…ething more (see WAP v The Queen [2017] NSWCCA 212 at [83]). Harm to victims can also be assessed from judicial experience and common sense ( R v JRN [2019] NSWDC 496 at [32]), though it is necessary to take care not to do so beyond what can be clearly accepted. It will ordinarily not allow any special harm to be i…
WAP v R
[2017] NSWCCA 212 Para 7

…nature of a crime to find the harm that ordinarily attaches to such offences and that the circumstances can show something more (see WAP v The Queen [2017] NSWCCA 212 at [83]). Harm to victims can also be assessed from judicial experience and common sense ( R v JRN [2019] NSWDC 496 at [32]), though it is necessary…
Millard v The Queen
[2016] ACTCA 14 Para 10

…llivan [1952] SASR 65 at 66), will assume a somewhat lesser role, especially for reoffending of the same kind of offence (see Millard v The Queen [2016] ACTCA 14 at [38]).…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 6

…tenced on a more serious charge than those to which his co-offenders entered pleas of guilty. 57. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green), the majority of the High Court (French CJ, Crennan and Kiefel JJ) said, at [28]: “Equal justice” embodies the norm expressed in the term “e…
R v Verdins
[2007] VSCA 102 Para 11

…Mr Berents submitted that Mr Blundell’s mental state would justify some moderation in sentence to meet the principles set out R v Verdins [2007] VSCA 102; 16 VR 269. He submitted that the diagnoses of borderline personality disorder, antisocial personality disorder, major depressive disorder as well as methampheta…
R v Henry
[1999] NSWCCA 111 Para 16

…the offender was unlikely to have been able to make a rational choice about it. See Douglas v The Queen (1995) 56 FCR 465 at 470. See also R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397–8; [273]. This makes it relevant as a subjective circumstance and it will be taken into account.…
R v Henry
[1999] NSWCA 111 Para 16

…nlikely to have been able to make a rational choice about it. See Douglas v The Queen (1995) 56 FCR 465 at 470. See also R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397–8; [273]. This makes it relevant as a subjective circumstance and it will be taken into account.…
Douglas v The Queen
[1995] FCA 411 Para 16

…e is a mitigation, but because the time it was initiated was when the offender was unlikely to have been able to make a rational choice about it. See Douglas v The Queen (1995) 56 FCR 465 at 470. See also R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397–8; [273]. This makes it relevant as a subjective circumstance and it wil…
Mill v The Queen
[1988] HCA 70 Para 7

…re committed on 27 March 2019, close to the date of commission of these offences. This is required by the principle of totality: see Mill v The Queen (1988) 166 CLR 59.…
Lowe v R
[1984] HCA 46 Para 6

…ws: 56. The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, rec…

Legislation cited in this decision · 1

Crimes (Sentencing) Act 2005 (ACT)
10, 12A, 33, 46J, 7 6 mentions (from Para 3)