R v Bouggas - [2015] NSWSC 914

Supreme Court

New South Wales

Medium Neutral Citation: R v Bouggas [2015] NSWSC 914
Hearing dates: 22 May 2015
Date of orders: 10 July 2015
Decision date: 10 July 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
For the offence of manslaughter, the offender is sentenced to a term of imprisonment with a non-parole period of 5 years commencing on 30 September 2013 and expiring on 29 September 2018 and a balance of term of 3 years expiring on 29 September 2021.

Catchwords: CRIME – sentencing – manslaughter – dangerous and unlawful act – accused lifting and pushing victim resulting in victim falling from balcony – no intention to cause fall
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Sentencing Act 1995 (WA), s 93
Cases Cited: The State of Western Australia v Schmidt [2014] WASCSR 91
Wilson v R [1992] HCA 31; 174 CLR 313
R v Karnib [2015] NSWDC 84
Category: Sentence
Parties: Crown
Chris Bouggas (offender)
Representation:
Counsel:
M Hobart SC (Crown)
M Austin (offender)
Solicitors:
Alexanders Lawyers (offender)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2013/293896
Publication restriction: None

Judgment

HER HONOUR: Christopher Bouggas has pleaded guilty to the unlawful killing of Ryan Dewhurst. He now stands to be sentenced for the offence of manslaughter on the basis of a dangerous and unlawful act.
The offender was arrested on 29 September 2013, the day on which the offence was committed. He has been in custody since that date. He was initially charged with murder. In March 2014, while the proceedings were still in the Local Court, the offender offered a plea of guilty to manslaughter on the basis of criminal negligence. The Crown did not accept that plea and in due course the offender was arraigned on an indictment for murder. On 1 April 2015, just over a month before the date fixed for trial, the Crown presented a fresh indictment for manslaughter on the basis of a dangerous and unlawful act. The offender was re-arraigned and pleaded guilty to manslaughter on that basis.
The maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no standard non-parole period prescribed for that offence.

Facts

The relevant facts are agreed. On the day of the offence, the offender was visiting Mr Craig Turner. Mr Turner lived in a Housing Department unit in Waterloo. The unit was on the sixth floor of a high-rise building and had a balcony. The deceased was staying at Mr Turner's unit at that time.
The offender and Mr Turner went out to buy some alcohol and returned to consume it. At some later point Mr Turner left the unit again to visit another friend, leaving the offender and the deceased alone together in the unit.
When Mr Turner returned an argument broke out between the offender and the deceased, evidently prompted by the offender’s belief that, while he was out with Mr Turner, the deceased had stolen some Xanax tablets. The deceased…

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 R v Bouggas

Details

AGLC: R v Bouggas [2015] NSWSC 914
Case: [2015] NSWSC 914
Decision Date: 10 July 2015

CaseChat Overview and Summary

The case of R v Bouggas involved a dispute between the Crown and the accused, Bouggas, regarding sentencing for manslaughter. The accused had been found guilty of manslaughter by the jury, following an incident in which he lifted and pushed the victim, resulting in the victim falling from a balcony to their death. The accused claimed that he did not intend for the victim to fall. The case was heard in the Supreme Court of Victoria.

The central legal issues for the court to decide were the nature of the dangerous and unlawful act that constituted the manslaughter, and whether the accused had the necessary intention to cause harm. The court had to consider whether the accused's actions were so reckless or dangerous that they constituted manslaughter, despite the absence of an intention to cause death. The court also needed to determine the appropriate sentence for the offence.

In delivering the judgment, the court first acknowledged the jury's finding of manslaughter and the absence of an intention to cause death. The court then examined the nature of the accused's actions, which involved lifting and pushing the victim. The court concluded that these actions were so reckless and dangerous that they amounted to a dangerous and unlawful act, satisfying the requirements for manslaughter. The court emphasised that the absence of an intention to cause death did not absolve the accused of responsibility for the victim's death if the act was sufficiently reckless. The court sentenced the accused to a term of imprisonment, taking into account the circumstances of the offence and the need for deterrence.

The court ordered that the accused be remanded in custody pending the commencement of his sentence. The court also noted that the sentence would be subject to an appeal, which the Crown was entitled to lodge. The final orders of the court included the imposition of a custodial sentence on the accused, and the requirement for the accused to be remanded in custody until the sentence commenced.

Orders