Bungie v R - [2015] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9
Hearing dates: 12 November 2014
Decision date: 13 February 2015
Before: Ward JA at [1]; Simpson J at [2]; Wilson J at [54]
Decision:
Scott Bungie:
(1)  Leave to appeal granted;
(2)  Appeal dismissed.
Robert Bungie:
(1)  Leave to appeal granted;
(2)  Appeal dismissed.
Catchwords:
APPEAL - sentencing - break, enter and steal, aggravated break and enter, larceny, armed robbery - extent of jurisdiction conferred by s 43 Crimes (Sentencing Procedure) Act 1999 (NSW) - principle of finality - Achurch v The Queen [2014] HCA 10 - s 43 limited to the correction of the imposition of penalties contrary to the law - appeal dismissed
APPEAL - appeal against severity of sentence - whether appropriate weight attributed to applicant’s personal circumstances - Bugmy v The Queen [2013] HCA 37 - sufficient weight attributed - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, s 43, s 44(2), s 53A
Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
Crimes Act 1900 (NSW), s 97(1), s 112(2), s 112(3)
Cases Cited: Achurch v The Queen [2014] HCA 10; 306 ALR 566
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
R v AB (No 2) [2011] NSWCCA 256
R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328
R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
R v Bungie (NSWDC, 7 February 2014, published under the title: “Correction to Sentence”)
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties:
2010/318560; 2011/118832
Scott Bungie (Applicant)
Regina (Respondent)
2010/318612; 2011/118729
Robert Thomas George Bungie (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Corish (Scott Bungie)
P Lange/A J Karim (Robert Bungie)
S Dowling SC (Respondent)
Solicitors:
Integrity Criminal Legal (Scott Bungie)
Aquila Lawyers (Robert Bungie)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/318560; 2011/118832 (Scott Bungie); 2010/318612; 2011/118729 (Robert Bungie)
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

07 February 2014

Before:

Williams ADCJ

File Number(s):

2010/318560; 2011/118832 (Scott Bungie); 2010/318612; 2011/118729 (Robert Bungie)

Judgment

WARD JA: I agree with Simpson J.
SIMPSON J: Before the Court are applications by two brothers (Scott Bungie and Robert Bungie) for leave to appeal against a series of sentences imposed upon them in the District Court at Taree on 7 February 2014. The circumstances that give rise to the applications have some unusual features, and will be detailed below. The principal issue in the applications concerns the extent of jurisdiction conferred by s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) on courts exercising criminal jurisdiction. The relevant parts of s 43 will be set out below. For the moment, it is sufficient to say that s 43 permits a court that has imposed a penalty that is contrary to…

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 Bungie v R

Details

AGLC: Bungie v R [2015] NSWCCA 9
Case: [2015] NSWCCA 9
Decision Date: 13 February 2015

CaseChat Overview and Summary

In the matter of Bungie v R, the appellant, Bungie, sought to appeal against the severity of the sentence imposed by the lower court. The dispute involved charges of breaking and entering, aggravated breaking and entering, larceny, and armed robbery. The case was heard in the NSW Court of Criminal Appeal.

The court had to determine whether the trial judge appropriately considered the appellant’s personal circumstances when imposing the sentence. This involved interpreting the extent of the jurisdiction conferred by section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly in light of the principle of finality articulated in Achurch v The Queen. The court also had to consider whether the sentence was contrary to the law, and if so, whether section 43 was limited to correcting such errors.

The court found that the trial judge had sufficiently weighed the appellant's personal circumstances, in line with the principles set out in Bugmy v The Queen. The court held that section 43 of the Act was limited to correcting penalties imposed contrary to the law and did not extend to cases where the sentence was merely severe. The appeal was dismissed, as the sentence imposed was not found to be contrary to the law and the trial judge had appropriately considered the appellant’s personal circumstances.

Orders