Citation: R v Nikia Bamblett; R v Hunter Green [2019] NSWDC 29
Court: District Court of New South Wales
Date: 28 February 2019
Judge: His Honour Judge Lerve
Background
Two offenders who shared a residence in Henty, New South Wales became suspicious that their housemate, a 48-year-old unemployed man who paid weekly rent, had stolen valuable model cars and household items. On 18 September 2017, they confronted him, then forcibly detained him, binding him to a chair with masking tape and ratchet straps, and assaulted him repeatedly over the course of the day. Oral threats were made demanding information about the stolen property.
That evening, still bound and gagged, the victim was moved to a bathroom where both offenders threatened to drown him if he made noise. When police attended the following morning in response to triple-0 calls, one offender untied and repositioned the victim to conceal his injuries, and both offenders threatened to kill him if he spoke to police. The victim declined to tell police what had occurred, and they left without further investigation.
The victim was later transported to hospital by one of the offenders and her brother. He underwent multiple surgeries, spent five days in intensive care, and suffered permanent paralysis of the left side of his face, including an inability to fully close his left eye. Medical evidence described the injuries as potentially lethal due to haemorrhage and airway compression.
Legal Issues
- What were the appropriate sentences for two offenders jointly convicted of aggravated kidnapping (s 86(3), Crimes Act 1900) and inflicting grievous bodily harm with intent to cause grievous bodily harm (s 33(1)(b), Crimes Act 1900)?
- Whether one offender was less morally culpable than the other within the joint criminal enterprise, and how any difference should be reflected in sentencing.
- Whether special circumstances existed for either offender justifying a departure from the standard non-parole period ratio.
- How the 25% utilitarian discount for early guilty pleas should apply to each offender.
Decision
Judge Lerve was satisfied beyond reasonable doubt of the facts as set out in the agreed facts document. Both offences carry a maximum penalty of 25 years imprisonment, and the grievous bodily harm charge carries a standard non-parole period of 7 years. His Honour applied the one-step instinctive synthesis approach to sentencing, treating the maximum penalty and standard non-parole period as principal guideposts rather than as a rigid formula.
On the question of relative moral culpability, Bamblett's counsel argued that Green was the prime mover and had manipulated Bamblett, making him less culpable. His Honour rejected this. The agreed facts did not support a finding that Green was the prime mover, and while individual circumstances were considered, both offenders were found to be substantially equally responsible for the initial detention and the sustained assaults.
Both offenders received the full 25% discount for the utilitarian value of their guilty pleas, entered at the Local Court and maintained at the District Court. His Honour found special circumstances for both offenders, reducing the non-parole period as a proportion of the total sentence below the statutory default of 75%. The reasons for special circumstances are identified in the reasons for sentence but are not fully reproduced in the available extract. For Green, partial accumulation of sentences was an additional reason.
Green received a longer aggregate sentence than Bamblett, reflecting the additional conduct attributed to her: she was responsible for the deception when police first attended, including further threats to kill, and for concealing the victim's condition from attending officers.
Orders Made
- Both offenders convicted on each charge.
- Bamblett: Aggregate sentence of 8 years 3 months; non-parole period of 5 years 3 months (approximately 63% of total), commencing 15 November 2017 and expiring 14 February 2023; balance of term expiring 14 February 2026. Release to parole recommended at expiry of non-parole period.
- Green: Aggregate sentence of 9 years 6 months; non-parole period of 6 years 6 months (approximately 68% of total), commencing 15 January 2018 and expiring 14 July 2024; balance of term expiring 14 July 2027. Release to parole recommended at expiry of non-parole period.
Key Takeaways
- In a joint criminal enterprise, the District Court will examine the agreed facts carefully before accepting that one participant was the dominant actor or manipulated another; such a finding requires a factual basis that is clearly established.
- Moral culpability within a joint enterprise can still vary between co-offenders, and the sentencing court will calibrate sentences accordingly, even where the primary conduct is equally shared.
- A full 25% utilitarian discount for guilty pleas is available where pleas are entered at the Local Court and maintained at the District Court, consistent with the principles in Muldrock v The Queen [2011] HCA 39 and related authorities.
- Special circumstances can be found for both offenders in a joint sentencing, and the reasons may differ between them; for one offender here, partial accumulation of sentences provided an independent basis for the finding.
- The grievous bodily harm with intent charge (s 33(1)(b)) carries a 7-year standard non-parole period and a 25-year maximum, both of which operate as principal guideposts in the instinctive synthesis process rather than as determinative benchmarks.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 86(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Muldrock v The Queen [2011] HCA 39
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) NSWLR 1
- Mitchell & Gallagher (2007) 177 A Crim R 94
- R v Daetz (2003) 139 A Crim R 398
- Barlow v R [2008] NSWCCA 96
- Whybrow v R [2008] NSWCCA 96
- McCullough v R [2009] NSWCCA 94
- Butters v R [2010] NSWCCA 1
- Kennedy v R [2010] NSWCCA 260
- R v Dole & Nguyen [2010] NSWCCA 101
- R v Rayment [2010] NSWCCA 85
- Khanwaiz v R [2012] NSWCCA 168
- R v Speechley [2012] NSWCCA 130
- R v Youseff [2012] NSWDC 252
- Ngati v The Queen [2014] NSWCCA 125
- Tuala v R [2015] NSWCCA 8
- Sorensen v R [2016] NSWCCA 54
- R v ES (No. 2) [2018] NSWCCA 1708
- Aslan v R