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[2013] NSWCCA 161
Court of Criminal Appeal (NSW)
2013-04-26
Hoeben CJ, Latham J, Barr AJ
Original judgment source is linked above.
Judgment 1HOEBEN CJ at CL : I agree with Latham J. 2LATHAM J : The applicant, Graeme Bamblett, seeks leave to appeal a sentence imposed upon him by Colefax SC DCJ, following a plea of guilty, with respect to one count of aggravated break and enter with intent to commit an indictable offence, namely to steal, in circumstances of aggravation. The circumstances of aggravation were that the occupants of the home, entered by the applicant, were asleep in their beds in the early hours of the morning of the offence. 3The applicant received a sentence of 4 years and 6 months, with a non parole period of 3 years and 4 months. The offence carries a maximum penalty of 14 years imprisonment. 4The grounds of appeal are that his Honour erred in failing to find special circumstances and that the sentence is manifestly excessive. The first ground arises in part from the fact that the offence was committed in breach of parole, so that the sentence was partially accumulated upon the sentence that the applicant was serving following the revocation of parole. 5For the reasons which follow, I am of the view that the appeal is wholly without merit and I would refuse leave.
The Offence 6At about 4:30 am on 22 July 2011, the applicant climbed onto the balcony and opened a closed window in the kitchen of a home in Five Dock. The applicant began searching the house. He took a set of spare house keys from the kitchen bench, gained access to the study and took a screwdriver from that room. The applicant then left the study and went to the bedroom, which was occupied by a Mr and Mrs Joyce, who were asleep at the time. 7The applicant took two phone chargers. While the applicant was still in the bedroom, Mrs Joyce went to the adjoining bathroom, causing the applicant to secrete himself in the corner of the room. A short time later Mr Joyce woke and discovered the applicant, who attempted to flee the premises. Both Mr and Mrs Joyce detained the applicant and walked him into the hallway, where he continued to struggle. Mr Joyce called out to his son for assistance. All three attempted to restrain the applicant who was attempting to leave the house by the front door. Ultimately the applicant stop resisting and sat on the lounge while the police were contacted. 8On hearing sirens in the street outside, the applicant requested to be allowed outside for a cigarette. The applicant then fled the premises by climbing down the balcony and running down the street, away from the arriving police vehicles. 9When police arrived at the home they were provided with a description of the applicant. Mr and Mrs Joyce told the police of a distinctive tattoo between the thumb and index finger of the applicant's right hand. The applicant's fingerprints were subsequently obtained from inside the window seal of the premises. 10On 27 July 2011 a search warrant was executed at the applicant's address in Belmore in the absence of the applicant. On 3 August 2011, police attended the applicant's address, and identified themselves to him. After a further attempt at flight, the applicant was arrested.
The Applicant's Criminal History 11The applicant is presently 29 years of age. The applicant reportedly commenced using heroin at the age of 14. His criminal history, which begins in 1999, consists primarily of drug-related offences, assaults, frauds and property related offences. The presentence report before his Honour noted that the applicant had previously breached a community service order (in 2005) and committed an aggravated sexual assault with the infliction of actual bodily harm in 2009, while he was on parole with respect to various property offences. 12The applicant has never been in employment. He told the Probation and Parole officer that he was not interested in completing a residential treatment program and that he had never attended any intervention for drug or alcohol issues. To the extent that the applicant has been on the methadone program for his opiate dependency, that has been provided during his periods of incarceration. However, the applicant said that he did not want to be dependent on methadone because he believed that it caused him to relapse. The applicant acknowledged that he committed the offence in order to obtain money for drugs. 13It was in this context that the judge noted that the applicant was on parole for three serious offences, namely aggravated sexual assault, aggravated enter dwelling and commit serious indictable offence and aggravated break and enter and commit serious indictable offence, at the time of the commission of the instant offence. The applicant was released to parole on 12 July 2011, namely 10 days before the commission of the offence. 14The applicant's parole was revoked on 18 August 2011. The balance of parole is to expire on 23 December 2013. The judge noted that the applicant had spent no part of the last eight months in custody solely referable to the instant offence. 15The judge commenced the sentence that he imposed from 3 August 2012, one year after the applicant's arrest on the present charge. It follows that slightly less than half of the non-parole period imposed runs concurrently with the balance of parole.
Ground 1 : No Finding of Special Circumstances 16The thrust of the applicant's argument on this ground was that special circumstances ought to have been found by his Honour, in line with "conventional sentencing practice" (Hejazi v R [2009] NSWCCA 282 at [36]) where sentences are accumulated, either upon each other or upon the balance of parole. 17The argument was refined somewhat on the hearing of the appeal. The applicant contended that, whilst it was not incumbent on his Honour to find special circumstances, it was nonetheless necessary to consider special circumstances in the context of accumulation. The applicant complains that the effective non-parole period is now 85% of the sentence being served. 18To the extent that the applicant now contends that the error consists of the sentencing judge's failure to turn his attention to the effect of accumulation of the sentence on the balance of parole, the applicant relies upon Howie J's remarks in Hejazi (Hislop J agreeing) and upon Adams J (Basten JA and Barr J agreeing) in Haines v R [2008] NSWCCA 12. Both of those cases recognise that ultimately, a finding of special circumstances is dependent upon the circumstances of each case. 19In Hejazi, the full context of Howie J's remarks are :- 35. ..................In my opinion a judge is required in a case such as the present to consider the relationship between the period to be served before parole eligibility arising from the accumulation of the two sentences and the balance of the term of the sentence for the second offence in order to ensure a sufficient period of parole supervision. 36 It may be necessary to find special circumstances and reduce the non-parole period imposed on the second offence to bring about that result. This has been conventional sentencing practice in this State since at least 1992: see R v Simpson (1992) 61 A Crim R 58. However, the ultimate question to be asked is what is the least period the offender is required to serve before being eligible for parole? The answer to that question will depend upon a consideration of all the purposes of punishment and not simply the rehabilitation of the offender. 20In Haines, the full conext is (at [21]) :- It is clear that, where the effect of accumulating sentences is to increase the proportion of the aggregate sentence to be served before the offender is eligible for parole beyond the s 44(2) ratio, this will be a special circumstance justifying a variation of that proportion in respect of one or more of the sentences to bring the relationship between the effective non-parole period and the overall sentence in conformity with the statutory ratio. For this purpose, consideration should be given not only to the accumulation of the sentences being imposed by the sentencing judge but also any sentence or sentences then being served by the offender. In the ordinary course, it will be appropriate to make such adjustments as will bring the ratio between the effective non-parole period and the overall sentence into conformity with the statutory ratio. This may not be appropriate in every case but, where there is a significant effective departure from the statutory ratio, some explanation should be given for doing so. 21In Clare v R [2008] NSWCCA 30 ; 181 A Crim R 450, the Court intervened to adjust the ratio between the non parole period and the sentence imposed for manslaughter, in circumstances where the accumulation of that sentence upon other sentences imposed in the District Court had not been drawn to the judge's attention. The Court was of the view that "consideration should have been given to this issue." (at [39]) 22There is nothing in Barrett v R [2011] NSWCCA 213 that adds anything to the above decisions. Justice Hidden (Whealy JA and Johnson J agreeing) reiterated at [29] that where the proportion between the aggregate non parole period and the aggregate sentence exceeds 75%, the failure to provide reasons might justify an inference that the effect of accumulation was overlooked. 23I am not persuaded that his Honour failed to turn his attention to the effect of accumulation of the sentence on the balance of parole. In the course of the sentencing proceedings, a report under the hand of John Taylor, psychologist, was tendered on the applicant's behalf. It noted that the applicant had a high to moderate risk of recidivism. This opinion was the subject of comment by his Honour during an exchange with the applicant's legal representative, who said :- All I'm saying to your Honour is that your Honour wouldn't give him a sentence starting 12 December 2013, you'd have to give him some partial accumulation at least. 24The judge stood the matter over for a further nine days because he required time to think about the appropriate sentence. During his remarks on sentence, his Honour noted that "no submission was made that there should be a finding of special circumstances [and that] the facts do not call for such a finding." The judge also found that there was an absence of genuine remorse, no evidence supporting the applicant's assertion that he was "at the crossroads", and that the applicant had a long untreated history of polydrug abuse. His Honour then found that the applicant's prospects of rehabilitation were not good. No issue is taken with these findings. 25In short, the applicant's poor prospects of rehabilitation did not call for a period of conditional liberty any greater than one year and two months. The discussion concerning the commencement date of the sentence necessarily highlighted the issue of accumulation. Clearly, the question of special circumstances was adverted to by the judge. 26In any event, as was observed in Russell v R [2010] NSWCCA 248, by Price J (Campbell JA and myself agreeing) at [43] :- Whether or not special circumstances are found is a matter for the discretion of a sentencing judge. For the applicant to succeed on this ground, he must show that it was not open to the Judge to reach the decision that he did: Musgrove v R per Simpson J at [24]; R v El-Hayek (2004) 144 A Crim R 90. 27The applicant has not demonstrated that the decision of the sentencing judge was not open to him.
Ground 2 : Manifest Excess 28A starting point of six years imprisonment for an offence carrying a maximum penalty of 14 years, in circumstances where the offence was committed in breach of parole (relating to a number of similar offences), where the offender had failed to benefit from conditional liberty on other occasions, and where the prospects of rehabilitation were poor, cannot, in my view, be characterised as manifestly excessive. 29The applicant maintained that the objective gravity of the offence was "low", having regard to the absence of planning or organisation, elderly, sick or disabled residents, and vandalism or significant damage. The applicant also submitted that the fact that there was only one offence and that it was "not a repeat incursion into the property" somehow affected the objective gravity of what the applicant did. 30I do not understand how the objective gravity of an offence can be assessed by what an offender does not do : Mammone v R [2013] NSWCCA 95 at [35]. The submission that "the occupants were clearly not terrorised by the situation" has no foundation in the evidence and is contrary to the judge's finding that "the experience would no doubt have been a frightening one [and] it is likely to have been accompanied by a profound sense of violation and insecurity". 31The order I propose is that leave be refused. 32BARR AJ : I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2013
Bamblett
R