R v Nikia BAMBLETT; R v Hunter GREEN

Assessment

1. Both the kidnapping and inflict grievous bodily harm charges are serious offences as they both carry maximum penalties of 25 years imprisonment. Clearly the matter is one of joint criminal enterprise but there is also the issue of the moral culpability of each of the two offenders.
2. On the agreed facts as I have set out, both offenders appear to be equally responsible for the initial detention of the victim and both are equally responsible for the sustained assaults on him. Both were involved in making the threats and both were involved with what occurred in the bathroom. Green was responsible for the subterfuge when the police initially attended, including further threats to kill, but it was Green and her brother that took the victim to hospital while the offender Bamblett stayed at home.
3. Mr Rolfe on behalf of Bamblett maintains in his written submissions, which were amplified in oral submissions at the sentence hearing, that his client is less morally culpable than Green in that Bamblett was not the prime mover but that Green was, given the perceived theft of items. In oral submissions Mr Rofe also referred to what was described as the dynamics of the relationship between his client and the co-offender Green.
4. To my mind, the agreed facts do not permit a finding that Green was the prime mover. Mr Rolfe further submits that there was an element of Green manipulating his client. In this regard Mr Rolfe relies upon paragraph 35 of the Psychological report and the contents of the pre-sentence report. The pre-sentence report also indicates that Bamblett does not agree with the agreed facts. In the absence of evidence the court is obliged to proceed on the agreed facts (see for e.g. Khanwaiz v R [2012] NSWCCA 168 at [96] per Beech-Jones J), which again, in my opinion do not permit a finding that Green was the prime mover. Rather, the agreed facts on any fair reading indicate that both were involved from the outset.
5. The assertions in paragraph 35 of the psychologist's report and the pre-sentence report are untested assertions by the offender Bamblett. There is no other material or evidence on which a finding that Green was the prime-mover can be made. There is also the issue that Bamblett was intoxicated during the period relating to the commission of the offences.
6. The victim sustained severe life-threatening and permanent injuries. The permanent injuries include nerve damage to his face, the results of which are that his mouth droops, he drools and cannot fully close one eye. Given what Dr Langcake opines about it being difficult for the victim to keep a food bolus in his left cheek, there are going to be ongoing issues in that regard as well. Clearly enough, again given the opinion of Dr Langcake, the assault involved a very severe application of force.
7. It is uncontroversial that the offence of Inflict Grievous Bodily Harm with Intent to do so contrary to s 33(1)(b) of the Crimes Act is a result offence. Conformably with decisions such as Mitchell & Gallagher (2007) 177 A Crim R 94 at [27] and McCullough v R [2009] NSWCCA 94 at [37] generally the more serious the injuries the more objectively serious the matter will be. It is clear however from McCullough that the circumstances of the assault or the attack are relevant. In the matter presently under consideration the injuries were sustained as a result of repeated assaults on the victim over a very considerable period of time.
8. Paragraph 12 of the Agreed Facts sets out that the discharge notes of the St George Hospital indicate that it was unclear whether the facial nerve palsy was caused as a result of the offending or caused by the initial draining of the haematoma and intubation of the victim conducted at the Wagga Base Hospital. This is of no assistance to either of the offenders. The reality is that but for the offending the victim would not be suffering from that injury.
9. In making a determination of the seriousness of the kidnapping charge it is instructive to consider the judgment of Johnson J (McClellan CJ at CL, Hammerschlag J agreeing) in R v Speechley [2012] NSWCCA 130 especially at [105]-[110].
10. The detention was for something in excess of 24 hours but less than 36 hours. However for about two-thirds of that time the victim was bound and gagged and indeed at one point threatened with drowning. The level of intimidation of the victim was very considerable and it escalated. The violence was continual. The extent to which fear was engendered in the victim was significant. The purpose of the detention was not ransom. The advantage pleaded or set out on the amended Court Attendance Notice is to obtain information about stolen property. However, in the course of the detention the victim was assaulted and intimidated. As in Speechly it went beyond merely scaring the victim, and in the matter presently under consideration beyond merely scaring the victim to a very significant extent. As Mr Rofe correctly concedes in his written submissions there is an element of vigilantism. The victim was taken to hospital but through no efforts of the offender Bamblett.
11. There is a real danger of double counting the violence in this matter as the factor relied upon to elevate the kidnapping charge to the Specially Aggravated form is the infliction of actual bodily harm and the offenders also appear for sentence in respect of the charge of Inflict Grievous Bodily Harm with Intent to do so. However, as I observed in the course of the sentence hearing the Aggravated Kidnapping charge relates to the detention and the Inflict Grievous Bodily Harm relates to the significant injuries sustained. There is of course, some overlap, but the criminality in respect of each of the offences is quite distinct.
12. Mr Rofe on behalf of Bamblett submitted in his written submissions (MFI 1 on sentence) that both offences are moderately below mid-range. This position was maintained in the course of oral submissions.
13. Mr Keller on behalf of Green maintained in oral submissions that both offences were clearly within the mid-range. In the course of his oral submissions the Crown Prosecutor argued that both matters were towards the upper end of the range, i.e. well above mid-range.
14. I have already set out the factors relative to the assessment of the criminality of both charges. I have a memory of saying at the sentence hearing that both matters are at least at the upper end of the mid-range. Upon reflection I conclude that both matters are above mid-range but neither to a slight nor significant extent.

Criminal History of Bamblett

1. The offender Bamblett has a minimal criminal history. He has two convictions for Damage to Property, one of which was dealt with by way of very modest fine and the other pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. He was born on 3 November 1994 and is entitled to leniency because of his very limited record.

Criminal History of Green

1. The offender Green was born on 20 March 1989 and has been convicted of Cultivation of a Prohibited Plant, Contravene Domestic Violence Order, Dishonestly Obtain Financial Advantage by Deception, Stalk/Intimidate, Common Assault and serious driving offences including Drive while Suspended. She has breached a number of orders of conditional liberty and was called up on a number of those breaches. Reasonable minds might differ on this finding but in all of the circumstances noting the number of convictions and the disparate nature of those matters I am of the opinion that the offender Green is not entitled to any particular leniency because of her record.

Issues of general deterrence

1. I have already observed that Mr Rofe correctly concedes that there is an element of vigilantism in this matter. He also submitted that by reason of issues raised in the psychological report the role of general deterrence is lessened. I will deal with this issue in more detail when dealing with the subjective case. However, I am not persuaded that the issues raised in the report are such that they impact on the role of general deterrence in this matter.
2. General deterrence is a matter that the Crown, correctly in my view, emphasised in the course of oral submissions, particularly on the issue of vigilantism. Rothman J (Tobias JA agreeing) in R v Rayment [2010] NSWCCA 85 at [162]-[163] said on the issue: Some comment should be made on the other general issues relating to the sentencing of Mr Rayment. I confirm my comments (with whom Howie J agreed and with whom, relevantly, Campbell JA agreed) in HAN, Zhi Qiang v R [2009] NSWCCA 300 at [30]: "It is not for individuals in society to enforce their own debts by the making of threats of physical harm. It is fundamental, to the rule of law and the nature of civilised society, that any allegation that debts are owed, when contested, is resolved independently and by the judicial process." [163] A fortiori, it is not for individuals to undertake vigilante activities, purportedly in pursuit of justice, as such activity is inconsistent with the rule of law and the nature of civilised society regulated by it. In that regard, I agree with Johnson J.
3. Further on the issue of vigilantism Howie J (McClellan CJ at CL agreeing) in R v Dole & Nguyen [2010] NSWCCA 101 said at [3]-[4]: I cannot agree with the sentencing judge's conclusion that "in this case the motive is not aggravating as it usually is". Why is it less aggravating to break into a person's house intending to inflict violence upon him for the sake of vigilante-type revenge than it is to break into a person's house to steal property? This was an offence where the whole purpose of the crime was to inflict injury upon the occupant in his own home. That is a serious offence regardless of the motive that led to that conduct. [4] Nor do I appreciate how the motive was "perfectly understandable", to quote the sentencing Judge. The courts should give no countenance to such conduct whatever the motivation for it. It is an anathema to the rule of law, which the courts seek to enforce, to have persons like the respondents deciding guilt and punishment upon a member of the community. The sentence needed to be a significant one for the purpose of general deterrence regardless of the subjective cases of the two respondents. There was not the slightest evidence to suggest that either of the respondents did not appreciate the consequences of their conduct. Nothing in the psychological reports could lead to that conclusion and the nature of the offending itself contradicts his Honour's finding.
4. It almost beggars belief that human beings would treat another as the two offenders treated the victim in this matter. The violence was extreme and continued for a considerable period of time. What happened to the victim bordered on torture. What occurred is contrary to the rule of law and moreover contrary to the manner in which persons within a civilised society should and are expected to conduct themselves. There are also very real issues of general deterrence to be addressed in the sentences to be imposed, not only because of the issue of vigilantism.

Victim Impact Statement

1. Wayne Hall, the victim, has provided a victim impact statement. The second (unnumbered) paragraph of that statement reads: The biggest issue I face since this incident happened is lack of trust with people and facing the outside world. I struggle in crowds of people, I feel on edge and grumpy. I don't like people coming up behind me, it scares me the most, and I worry I might lash out and hit the person behind me.
2. Mr Rofe on behalf of the offender Bamblett made a submission relying on the first part of that paragraph to the effect that the effects on the victim are no less than one would expect given the nature of the charges. The Crown, quite properly, did not rely on the contents of the victim impact statement to submit any factor of aggravation. In this regard I note the effect of the decision of the Court of Criminal Appeal in Tuala v R [2015] NSWCCA 8. Mr Rofe went on to submit that the victim has shown considerable resilience. This is so, but that speaks well of the victim and cannot be a matter in mitigation.
3. The victim impact statement speaks eloquently of the harm and the effects on the victim. The severity and significance of the injuries including the ongoing effects and sequelae are very clearly set out in the s 177 Certificate of Dr Langcake.

Factors of Statutory Aggravation

1. The offences were committed in the home of the victim and technically the factor of aggravation provided for by s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act is made out. However, as it was also the home of the two offenders this has no real practical impact on the sentence to be imposed.
2. However, in respect of the offender Green she was subject to conditional liberty in the form of a Bond to be of Good Behaviour pursuant to (the then) s 9 of the Crimes (Sentencing Procedure) Act. The bond was revoked and she was in custody in respect of matters unrelated to the offending with which this matter is concerned from 15 November 2017 to 13 March 2018. There is an issue of totality and partial accumulation. I indicated at the sentence hearing that I would commence the sentence for the offender Green from 15 January 2018. I did not understand either counsel to dissent from that suggestion. The breach of conditional liberty is one of several matters that differentiates the case of the offender Green and the offender Bamblett so far as the issue of parity is concerned.

Parity

1. That is a convenient point to deal with the issue of parity. For the reasons set out when dealing with the assessment of the criminality, the criminality cannot really be distinguished between the two offenders save and except for the fact that Green took the victim to the Wagga Wagga Base Hospital. Green is older, has a more serious record and was on conditional liberty at the time of the offence. Bamblett has a stronger subjective case, which will become clear when I deal with the cases for each of the offenders.
2. Mr Keller on behalf of Green appropriately emphasised paragraph 9 of the facts which deals with Green taking the victim to hospital. Although not expressed in those terms I understood the submission to be that that amounted to ameliorative conduct that mitigates the sentence.
3. In Thewlis [2008] NSWCCA 176 Simpson J (as her Honour then was) said at [42]-[43]: My researches have yielded no explicit statement of principle to the effect that voluntary rectification can operate in mitigation of sentence. Indeed, in respect of property crimes, it has been held that voluntary repayment of the proceeds of the criminality cannot be used to "purchase mitigation": R v Phelan (1993) 66 A Crim R 446 at 448, per Hunt CJ at CL. But that very circumstance was accepted on a relevant sentencing factor in R v Conway [2001] NSWCCA 51; 121 A Crim R 177, per Heydon JA, in R v Berlinsky [2005] SASC 316, and in Dowling v Phillips, Supreme Court of WA, 15 August 1995 per Heenan J. (And these were, in contrast to the present, cases where the ameliorative conduct occurred after the offender was charged, or when aware that he or she was to be charged. (That is not here of great importance: there could have been no doubt that the applicant would have been identified as the perpetrator of the attacks, and charged.) [43] In my opinion it ought now be accepted that, in an appropriate case - and, it may be said, there are few examples of appropriate cases, at least that came before this Court - conduct of the kind engaged in by the applicant warrants some consideration in mitigation of sentence. (I stress that I have twice referenced to "mitigation of sentence". That is different from, and not to be confused with, mitigation of the offence: the latter concept is concerned with the evaluation of objective gravity.)
4. However Spigelman CJ (Price J agreeing with the additional comments of the Chief Justice) said at [4]-[5]: The reasons in Phelan were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough. [5] In the present case that special additional element is to be found in the fact that it does appear that the applicant's immediate recognition of his wrongful act played a significant, and quite possibly decisive role, in saving the victim's life.
5. There is no opinion expressed by Dr Langcake as to the significance of the victim being taken to hospital when he was. However, he was taken to a regional base hospital where treatment could commence immediately and further the transfer to the St. George Hospital could be arranged. I cannot conclude that Green taking the victim to hospital when she did saved his life however I am also of the opinion that there should be some mitigation extended to her in respect of that conduct. That mitigation is also part of the consideration on the issue of parity as between the two offenders.

Subjective case for Bamblett

1. No oral evidence was called by or on behalf of the offender Bamblett. He was 22 years of age at the date of the offending and is now 24, his date of birth being 3 November 1994.
2. Much of the subjective material for Bamblett comes from the report of Lucie Swafield of Duffy Robilliard, Psychologists. The background of the offender Bamblett is set out at paragraphs 3 to 8 inclusive and then at 11 to 14 inclusive. There are also issues set out within paragraphs 16 to 22 inclusive. The offender was subjected to drug abuse and domestic violence in his formative years. It seems he changed schools a number of times. He was living with various members of his extended family from time to time. He was bullied at school as I read the report essentially because he is Aboriginal.
3. When he was 13 his father committed suicide. The offender himself has issues of suicidal ideation and has had a feeling of depression since he was 12. He has been prescribed and continues to take while in custody medication for anxiety and depression. There is a substantial volume of handwritten medical notes to justify the contents of the psychologist's report.
4. Clearly, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 and decisions of the Court of Criminal Appeal such as Kennedy v R [2010] NSWCCA 260 are enlivened, reducing the moral culpability of the offender.
5. Bamblett was introduced to alcohol when he was 12 and abused alcohol heavily in his teenage years. He commenced smoking cannabis at 13 and began to use that substance very heavily. He also used illicit suboxone. He was regularly using methyl amphetamine and cannabis as well as binge drinking alcohol before entering custody.
6. The author of the report (exhibit 1) conducted a number of tests with Bamblett. Intelligence testing results (paragraph 24 of the report) suggested that he is likely to have average ability for solving visual problems and perceiving patterns with his verbal skills not as strong yet still within the average range.
7. At paragraph 30 the author opines that the offender Bamblett's profile suggests that he is experiencing a severe mental health disorder. The author continues: The profile is indicative of symptoms consistent with major depression likely prompted by actual changes in his fortunes. Substance Use Disorder and Alcohol Use Disorder were evidenced in the profile. Substance use has likely functioned for stimulus-seeking and socialising in youth camaraderie at the same time intoxicated periods likely provide outlet for resentments and oppositional attitudes. His drug use likely functions to assert independence from the restraints of others. There is indication of Generalised Anxiety disorder, feeing agitated and tense, chest palpitations feeling jumpy which may be prompted by a recent unexpected failure and are causing him a significant level of stress.
8. At paragraph 29 Ms Swafield records: …Mr Bamblett's profile was suggestive of a person who is likely to be excitable, zealous although equally hot headed with periods of being unrestrained in his emotional reactions. Results suggest he could be prone to being aggressive. There is the likelihood of tumultuous moods, including anger and boredom with a tendency to be highly emotionally responsive with negative affect rapidly displayed…
9. Mr Rofe on behalf of the offender Bamblett argued that these opinions expressed by Ms Swafield enliven the principles enunciated by the Court of Criminal Appeal in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, in particular that part of the judgment of McClellan CJ at CL at [177]-[178], namely: Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].
10. In Muldrock v The Queen [2011] HCA 39 the court said at [54]: The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
11. In Aslan v R [2014] NSWCCA 114 Simpson J (as her Honour then was) in giving the judgment of the court at [33] said: This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177].
12. Her Honour then extracted that part of the judgment of McClellan CJ at CL at [177] in De La Rosa that I have extracted above. Her Honour went on to say: [34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
13. Beech-Jones J in giving the leading judgment in Ngati v R [2014] NSWCCA 125 said at [46] said: Nevertheless the approach stated in Muldrock is only expressed to be apposite to "most cases" of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the application was "fully aware" that his conduct was "seriously wrong". Considered in this context the finding that he was "fully aware" was clearly a reference to the applicant having a deep understanding of its wrongful nature and consequences.
14. Beech-Jones J was of course, dealing with issues of the offender being intellectually impaired rather than suffering a mental illness. However, his Honour's comments in my view are still instructive in this case.
15. At paragraph 35 of her report Ms Swafield says: Mr Bamblett said in the time precipitating the offences he had a confrontation with his mother which left him feeling intensely angry. Regarding the victim in the property he recalled Hunter (co-offender) saying, "why don't you go and hurt him", "he shouldn't be stealing from a dead person". At the time he said he was using the above-mentioned quantities of ice, cannabis, illicit suboxone and drinking alcohol heavily daily. He reported Hunter threatened to find another man to abuse the victim which made him jealous and angry. He said he engaged in the offending to 'teach him a lesson' yet knew his actions were wrong at the time and feared apprehension.
16. To my mind, there are a number of issues with the submission that the moral culpability of the offender is reduced because of his mental health conditions. The opinions expressed talk of the present and it is not completely clear that those conditions existed at the time of the offending. In this regard I note that the author of the report at paragraph 30 uses the expression that, "Mr Bamblett profile suggests that he is experiencing a severe mental health disorder". However, a number of the personality traits to which the author of the report refers would have been present at the time of the offending.
17. Further, even proceeding on the basis that there was that severe mental health disorder at the time of the offending there is nothing in the report that indicates any causal connection between the offending and the mental health condition. This is why I extracted from the decision of Muldrock, Aslan and Ngati. I have a specific recollection of raising this with Mr Rofe at the sentence hearing and he maintained that he relied on the contents of paragraphs 29 and 30 of Ms Swafield's report.
18. Then of course, there is the issue of intoxication. The offender was abusing a cocktail of illicit substances and alcohol at the time of the offending. Not only did the offender disclose this to Ms Swafield in the preparation of her report but I note that the author of the pre-sentence report also notes under the heading "attitude to offending" that the offender admitted that he was under the influence of alcohol, methamphetamines and buprenorphine at the time of the offences.
19. For these reasons I am not prepared to make a finding that Bamblett's moral culpability is reduced because of the mental health condition. However, the issues raised in the report are a very significant part of the overall subjective mix to be taken into account in the instinctive synthesis process of determining the appropriate sentence to be imposed.
20. Mr Rofe on behalf of Bamblett also relies on the report of Ms Swafield and the pre-sentence report to ground a finding that the offender is remorseful. This court is becoming increasingly tired of such submissions in circumstances where reliance is placed on untested assertions in a report.
21. Ms Swafield in her report at paragraph 36 notes, When asked to comment on his feelings about the offending and violence for the victim Mr Bamblett said he recognised he has "wrecked their life" and knows there is permanent injuries to the victim's face which he feels bad about…In terms of what he could have done differently, Mr Bamblett identified he should have evicted the victim or called police. He said he frequently ruminates about the offences for which he feels regretful and remorseful.
22. Under the heading "Attitude to offending" the author of the pre-sentence report notes: When discussing his behaviour he explained that his partner had encouraged him to assault the victim and instructed him to engage in his detention and to this end, felt that she had made him commit the offences. (I) just reacted in the heat of the moment, he said (It) just happened…I'm really sorry…(I) didn't mean for it to happen.
23. When I raised this issue of the expressions of remorse being untested with Mr Rofe he raised the decision of R v ES (No. 2) [2018] NSWSC 1708, where McCallum J (as her Honour then was) said at [18]-[19]: The Crown questioned the weight that could properly be placed on those reports, citing authorities emphasising the caution with which courts should treat material that has not been tested by cross-examination or that is not otherwise capable of verification. [5] The decision in Qutami is commonly cited as authority for the "principle" that very considerable caution must be exercised in relying on hearsay evidence of statements made by offenders to doctors, psychologists and psychiatrists when the offender does not give evidence. [6] The proposition that caution must be exercised before accepting untested hearsay statements is unexceptionable as far as it goes; whether the qualifying words "very considerable" add anything may be doubted. But care must be taken not to elevate such remarks to a principle requiring the rejection of such evidence. In the present case, the Court has been presented with two thorough reports from professionals with considerable experience necessarily including experience in taking a careful patient history. The accounts from the offender set out in each report are coherent, largely consistent and not inherently implausible. Neither expert was requested for cross-examination by the Crown. I am satisfied that I should proceed on the basis that the premises for their opinions may largely be accepted.
24. I have no difficulty accepting the opinions and conclusions by Ms Swafield in her report, given in particular that there is a considerable volume of medical material. However, there is a very clear difference between accepting an opinion or conclusion in a report and accepting the untested hearsay statement of what was said by an offender to the author of the report.
25. In Butters v R [2010] NSWCCA 1 at [17] Fullerton J, giving the leading judgment, made it clear that an offender does not have to give evidence in order for a finding of remorse to be made. With some hesitation I am prepared to make a finding on balance that the offender Bamblett is remorseful, but I am not prepared to give that finding significant weight. The hesitation is principally because of the issue of the offender blaming the co-offender and not fully accepting responsibility.
26. The author of the pre-sentence report assesses the offender as being at medium/high risk of re-offending. Ms Swafield in her report (paragraph 46) opines that the offender's overall score on a measure of violence risk was in the low risk range. The offender is now 24 with a very limited record. I am prepared to find that the offender Bamblett is unlikely to re-offend.
27. For similar reasons, but also with some hesitation, I am prepared to find that the offender Bamblett has good prospects of rehabilitation. The hesitation is because to some extend the chances of rehabilitation will depend on the manner and the extent to which the offender engages with the appropriate agencies on his eventual release.
28. I note from exhibit 4, a reference from the offender's aunt, that the offender would have some family support in Narrandera upon his release.
29. Ms Swafield also opines that the offender's mental state could worsen without timely and targeted treatment. She also recommends supervision once the offender is released into the community. There should be a reasonably generous finding of special circumstances for the offender Bamblett. This is his first time in custody and there is a need for an extended period of supervision not only because of the issues relating to alcohol and substance abuse but also the need to ensure that he is properly reintegrated into the community.
30. Mr Rofe submitted on behalf of Bamblett that I would also mitigate sentence because of extra-curial punishment. This submission is based on one sentence at paragraph 15 of Ms Swafield's report namely, "The Justice Health record supplied indicated Mr Bamblett was admitted to Nepean Hospital on 29 December 2017 as an inmate after allegedly being assaulted in custody with wounds to his face".
31. The court was not taken to the relevant entry. However, the entry reads: Bilateral black eyes, swollen nose - can breathe normally through left nostril but difficulty with r(ight) side. States pain when biting down - able to eat soft small amounts at a time - Pt (patient) states was assaulted due to a family incident in Junee.
32. The clear inference is that the assault was because of a family incident at Junee rather than the offending that brings him before the court. When the issue of extra curial punishment was raised at the sentence hearing I raised with the parties the decision of the Court of Criminal Appeal in Whybrow v R [2008] NSWCCA 270, in particular the review of a number of authorities by Hislop J at [21]-[25]. One such authority reviewed was R v Daetz (2003) 139 A Crim R 398 where it was made tolerably plain that extra-curial punishment can be taken into account, "where the offender has already suffered some serious loss or detriment as a result of having committed the offence".
33. The submission that the court should make some allowance for extra-curial punishment has no substance and with respect to Mr Rofe, is a submission that should not have been made given what appears in the clinical notes.
34. Mr Rofe also relied on his written submissions are MFI 1. It is put (para 9; p 4 of MFI 1) that there is an element of the co-offender manipulating Bamblett. It is also put (in oral submissions) that Bamlett's moral culpability is lower. I have dealt with the issue of the criminality earlier in these remarks. There was also a submission made as to the dynamics of the relationship between the co-offender and Bamblett. I am unable to make the distinction that Mr Rofe submits on the agreed facts before me. Even if the criminality could be distinguished there is the issue that Green took the victim to the Wagga Wagga Base Hospital.
35. Ultimately Mr Rofe submits (in his written submissions, MFI 1 on sentence) that the offender would receive a more lenient sentence than that imposed in the matter of R v Youseff [2012] NSWDC 252. That offender appeared for sentence in respect of the same charges as are presently before the court. A total sentence of 7 years 3 months with a non-parole period of 4 years 6 months was imposed. I note that co-incidentally Dr Langcake also provided the medical evidence as to the injuries in that matter. The matter went to the Court of Criminal Appeal - see Youseff v R [2013] NSWCCA 308. I am of the opinion that the criminality in the present matter is more serious than that in Youselff despite the issues of the very low level of intellectual functioning of the victim in that matter. The injuries in Youseff were not as serious, they were not permanent and the detention was for a shorter period of time. In Youseff the finding by the learned judge at first instance that the offences were "in that mid-range of seriousness of crimes of this nature" was not challenged at the appeal. I have found the offences in the matter before the court to be above mid-range.

Subjective case for Green

1. No oral evidence was called by or on behalf of the offender Green. A psychological report prepared by Mr John Sheppard, exhibit 7, sets out a number of matters relevant to Green's background and subjective case.
2. Green's father apparently had anger issues. The Department of Community Services became involved and she was taken into care at an early age. She was sexually assaulted by a male carer when she was 6 years of age. She was moved into the care of members of her extended family in the Newcastle area when she was 8. She was physically and emotionally abused by her aunt. There are some factors that lead me to the conclusion that the principles enunciated by the High Court in Bugmy v R are enlivened reducing her moral culpability. I note however while not deprecating the deprivations endured by the offender Green those deprivations are not to the extreme extent often encountered by this court in western and far western New South Wales.
3. The offender Green began using cannabis at 15 and progressed to ice or methyl amphetamine. On one occasion she was admitted to a facility with a drug-induced psychosis. She was treated with anti-psychotic medication. She had been using illicit substances leading up to the commission of the offences.
4. Under the heading Background and Attitude to the Index Offences the author sets out that the offender Green stated that the "victim gradually over time destroyed her property and stole items. She added that leading up to the offence she had been using ice and was affected by alcohol and felt psychotic". There is no expansion on what property was taken. Only the suspected theft of items is referred to within the facts. A little later in the report (p 6) the author opines that it was possible that the offender was experiencing some psychotic symptoms.
5. Further, the author of the report sets out that the offender Green indicated that she was remorseful for what had happened and understood that the matter had a severe impact on the victim.
6. This is yet again a bland expression of remorse uttered to the author of a report. I dealt with the authorities on this issue in dealing with the co-offender. Exhibit 8 is a letter from the offender who writes that: I wasn't in the right mind frame when I broke the law and committed my terrible crime. I've had 15 months to think about what I did. Every day I feel like a piece of crap for what happened to poor Wayne. I am very remorseful. I regret what happened to him.
7. I am usually very circumspect about the content and sincerity of the "sorry letters" that the court sees all too frequently. Given the manner in which the offender expresses herself I am satisfied that the words are hers rather than words that she learnt by rote. However, the expressions of remorse are untested and again I have some hesitation in accepting that she is remorseful. It was also submitted on her behalf that she accepts responsibility in full for what she was involved in. However, I am prepared to accept that the offender is remorseful, but as with the co-offender I am not prepared to give those expressions of remorse significant weight.
8. Exhibit 7 is a letter from the offender's mother. She speaks well of offender's mothering skills with her (offender's) daughter. Exhibit 6 is a reference from a business proprietor in Henty who says that what occurred was out of character.
9. Returning to the psychological report, Mr Sheppard opines that the offender Green may benefit from participation in the EQIPS programs and that she may also need access to psychological counselling. Further, the offender will struggle with the separation from her young child and family.
10. I note that Mr Sheppard at the top of p 7 of his report says that if the offender is released into the community she will need access to supportive counselling around her historical illicit drug use. With respect the author who is known to this court as an experienced psychologist who has prepared many of these reports should realise that the reported criminality will result in a lengthy custodial sentence.
11. There is the issue of the offender Green taking the victim to the hospital. I have dealt with this issue earlier in these remarks when dealing with the issue of parity.
12. The offender Green has a criminal history that does not entitle her to any leniency. She was subject to conditional liberty at the time of this offending. I am not prepared to find on balance that she is unlikely to re-offend and nor am I prepared to find on balance that there are good prospects of rehabilitation. While I do not resile from that finding I note that the offender enjoys some family support and that her mother was in court supporting her. Clearly, the offender will have some support within the community upon her eventual release.
13. I am of the opinion that there should be a finding of special circumstances so far as the offender Green is concerned. There is a need for an extended period of supervision going to the issues of substance abuse but also given what will be a very lengthy period of imprisonment assistance with reintegration into the community. The only other sentence of custody is related to a call-up to which I will later refer. However, the extent of the finding of special circumstances will not be as much as for the co-offender Bamblett.
14. Mr Keller commenced his submissions by recognising that there must be a substantial sentence of imprisonment. The offender is now 30 years of age and this is her first time in custody. She was sentenced to imprisonment following a call-up for sentence in respect of matters for which she was subject to conditional liberty. She has been in custody solely referable to these matters since 13 March 2018 but was in custody from 15 November 2017. I indicated that to give effect to the issue of totality I would commence the sentence for these matters on 15 January 2018. I did not understand either counsel to dissent from that indication.
15. Submissions were made that both matters are mid-range. I have dealt extensively with the issue of the objective seriousness of the matters earlier in these remarks.
16. Mr Keller appropriately emphasised that his client drove the victim to the hospital. I have also dealt extensively with that. Mr Keller also submitted that for a couple weeks after discharge from hospital the victim stayed at the Railway Street, Henty premises. The Crown took no apparent issue with that and the victim was present in court so I proceed on the basis that he did stay at the premises for a couple of weeks.

Crown's submissions

1. The Crown Prosecutor commenced by conceding that each offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. Further, that the sentence for Bamblett should commence on 15 November 2017.
2. Further, the Crown submitted on the issue of vigilantism and referred to the decision of Speechley. The submission was made that both matters are well above mid-range on the scale of seriousness. I have already dealt with that issue. The Crown also referred the court to Sorensen v R [2016] NSWCCA 54. Ward JA (as her Honour then was), Adams & Bellew JJ agreeing said at [110]-[111]: For Mr Sorensen it is submitted, in effect, that it was an error of principle for his Honour to treat quasi-vigilantism as an aggravating feature and that what authorities such as Speechley and Barlow v R [2008] NSWCCA 96; (2008) 184 A Crim R 187 contemplate is that, depending on the circumstances of the case, quasi-vigilantism may not be a mitigating feature but that they do not go further to say that it is or can be an aggravating feature. It is submitted that retribution or vigilantism provides an explanation for the conduct but cannot make it more serious than an offence committed, say, for financial gain or sexual gratification. [111] That submission cannot be accepted. In Speechley (at [110]), Johnson J expressly recognised the need to condemn actions of a vigilante nature and the relevance of this to reflecting general deterrence on sentence. The passages in Barlow (at [40] and [67]-[68]) referred to at [112] and [113] in Speechley make clear that not only may quasi-vigilantism mitigate to some degree the objective seriousness of an offence in particular cases but also it may indicate in particular cases the need for a more severe sentence to address issues of deterrence.
3. To make it abundantly clear, I have taken the issue of the vigilantism into account going to objective seriousness of the matter and I have not taken it into account as a separate factor of aggravation. In the matter presently under consideration it is also a matter that goes to the issue of general deterrence.

General Remarks

1. Mr Keller invited me to impose an aggregate sentence, which I indicated I would be doing. If separate sentences were imposed much care would need to be taken on the issue of partial accumulation. While there is an overlap between the two offences and while care must be taken not to fall into the error of double counting, as I mentioned earlier in these remarks the two offences take into account separate but quite serious offending. Be that as it may, the extent of the concurrency of the sentences would not be insubstantial but there would need to be some meaningful degree of partial accumulation to take into account the separate offending recognised by the two offences. For reasons that should be clear from dealing with the issues of parity and the different subjective cases for each of the offenders the sentences will be slightly different with the offender Bamblett receiving a slightly lesser sentence.
2. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
3. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided, the standard non-parole period for the offence contrary to s 33(1)(b) of the Crimes Act and the criminality involved there must be substantial full-time custodial sentences imposed in respect of these matters.
4. As I am proposing to deal with this matter by way of aggregate sentence it will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. These remarks have been reduced to writing and a copy of these remarks will be provided to the parties immediately following the pronouncement of sentence.
5. In respect of the offender Bamblett if separate sentences were imposed: 1. In respect of the Aggravated Kidnapping charge contrary to s 86(3) of the Crimes Act, a total sentence of 7 years indicating a starting point of 9.5 years with some minor mathematical rounding down; 2. In respect of the charge of Inflict Grievous Bodily Harm with Intent to cause Grievous Bodily Harm contrary to s 33(1)(b) of the Crimes Act, a non-parole period of 4 years and 4 months with a period on parole of 2 years 8 months making a total sentence of 7 with a starting point of 9.5 years with some minor mathematical rounding down.
6. In respect of the offender Green if separate sentences were imposed: 1. In respect of the Aggravated Kidnapping charge contrary to s 86(3) of the Crimes Act a total sentence of 8 years 3 months, indicating a starting point of 11 years; and 2. In respect of the charge of Inflict Grievous Bodily Harm with Intent to cause Grievous Bodily Harm contrary to s 33(1)(b) of the Crimes Act a non-parole period of 5 years 7 months with a period on parole of 2 years 8 months, making a total sentence of 8 years 3 months indicating a starting point of 11 years.

Formal Orders

1. In respect of each of the matters to which each of the offender have pleaded guilty they are convicted.
2. The offender Bamblett is sentenced to an aggregate sentence of 8 years 3 months with a non-parole period of 5 years and 3 months with a balance of term of 3 years. The non-parole period will commence on 15 November 2017 and will expire on 14 February 2023. The balance of term will commence on 15 February 2023 and will expire on 14 February 2026. The offender Bamblett will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
3. The non-parole period is approximately 63% of the total sentence which recognises a finding of special circumstances the reasons for which have been enunciated within these reasons.
4. The offender Green is sentenced to an aggregate sentence of 9 years 6 months with a non-parole period of 6 years and 6 months with a balance of term of 3 years. The non-parole period will commence on 15 January 2018 and will expire on 14 July 2024. The balance of term will commence on 15 July 2024 and expire on 14 July 2027. The offender Green will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
5. The non-parole period is approximately 68% of the total sentence which recognises a finding of special circumstances the reasons for which have been enunciated in these reasons. For the offender Green those reasons should also include the issue of partial accumulation of sentence.

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: 28 February 2019