AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 5 July 2013

Bamblett v R

[2013] NSWCCA 161

Assault & violenceTheft & property
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE GUILTY PLEA AGGRAVATED BREAK, ENTER AND STEAL OCCUPANTS AT HOME AT TIME OF OFFENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Bamblett v R [2013] NSWCCA 161
Court: Court of Criminal Appeal, NSW
Date: 5 July 2013
Judge(s): Hoeben CJ at CL, Latham J, Barr AJ

Background

The applicant pleaded guilty in the District Court to one count of aggravated break, enter and steal. The aggravating circumstance was that the occupants of the Five Dock home were asleep when he entered through a kitchen window in the early hours of the morning. He searched the house, entered the occupied bedroom, and was discovered by the sleeping couple who detained him before he fled on hearing police sirens.

The applicant was sentenced to 4 years and 6 months imprisonment with a non-parole period of 3 years and 4 months. Critically, the offence was committed just 10 days after he was released on parole for prior offences including aggravated sexual assault and aggravated break and enter. His parole was subsequently revoked, and the new sentence was partially accumulated upon the balance of that parole.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge erred by failing to find special circumstances, and that the sentence was manifestly excessive.

  • Whether the sentencing judge was required to find special circumstances, or at minimum to consider them, given that the sentence was accumulated upon the balance of a parole period.
  • Whether the resulting effective non-parole period (approximately 85% of the total sentence being served) disclosed an error warranting intervention.
  • Whether a starting point of six years for the offence was manifestly excessive in light of the objective gravity and the applicant's personal circumstances.

Decision

Ground 1: Special circumstances and accumulation

The applicant argued that "conventional sentencing practice" required the sentencing judge to find special circumstances where sentences are accumulated upon each other or upon a parole balance. The Court acknowledged the relevant authorities, including Hejazi v R and Haines v R, which recognise that accumulation can produce an effective non-parole period disproportionate to the statutory ratio and that this may warrant adjustment.

However, Latham J found that the sentencing judge had plainly turned his mind to the issue of accumulation, as demonstrated by the careful discussion of the sentence commencement date and the judge's explicit treatment of the applicant's rehabilitation prospects. The judge found those prospects were poor, justifying a supervisory parole period of only one year and two months. The Court confirmed that whether special circumstances are found remains a matter of judicial discretion, and the applicant failed to demonstrate that the decision was not open to the judge.

Ground 2: Manifest excess

The Court rejected the submission that the offence was of low objective gravity. The applicant pointed to the absence of planning, vandalism, elderly or disabled victims, and the fact that there was only one offence. Latham J, citing Mammone v R, held that objective gravity cannot be assessed by reference to what an offender did not do. The submission that the occupants were "clearly not terrorised" was also rejected as contrary to the sentencing judge's finding that the experience would have been frightening and produced a profound sense of violation. A starting point of six years for an offence carrying a maximum of 14 years, committed in breach of parole and against a background of failed conditional liberty, was not manifestly excessive.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Whether special circumstances exist to vary the statutory non-parole period ratio is a matter of discretion for the sentencing judge; an applicant must show the decision was not open to the judge, not merely that a different approach was available.
  • A sentencing court's obligation when accumulating sentences is to consider the effect of accumulation on the overall ratio, but that consideration does not automatically produce a finding of special circumstances, particularly where rehabilitation prospects are poor.
  • Objective gravity cannot be assessed by cataloguing what an offender did not do during an offence; the Court of Criminal Appeal confirmed this principle, citing Mammone v R.
  • In dismissing both grounds, the Court affirmed that a sentence representing a starting point well below the statutory maximum is not rendered manifestly excessive by the combination of parole breach, poor rehabilitation prospects, and prior similar offending.
  • The decision reaffirms the line of authority in Hejazi v R and Haines v R without extending it: those cases require the sentencing court to address accumulation, but do not mandate any particular outcome.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (statutory non-parole period ratio)

Cases
- 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
- R v Simpson (1992) 61 A Crim R 58