R v Buggy - [2006] ACTCA 20

REGINA v TRACEY LEE BUGGY [2006] ACTCA 20 (8 November 2006)

CRIMINAL LAW – Appeals – Crown appeal against sentence – social security fraud – whether sentence should be fully suspended – psychiatric report before sentencing judge – psychiatrist not called for cross-examination - Crown challenge to psychiatrist’s opinion.

Magistrates Court Act 1930, s 90A
Supreme Court Act, s 37E

R v House (1936) 55 CLR 499 cited
Griffiths v The Queen (1977) 137 CLR 293 cited

Everett v The Queen (1994) 181 CLR 295 cited
Lowndes v The Queen (1999) 195 CLR 665 cited
R v Brewer [2004] ACTCA 10

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 13-2006
No. SC 255 of 2005

Judges: Higgins CJ, Connolly and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 8 November 2006

IN THE SUPREME COURT OF THE       )          No. ACTCA 13-2006
  )          No. SC 255 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:REGINA
Appellant

AND:TRACEY LEE BUGGY
Respondent

ORDER

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  8 November 2006
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 13-2006
  )          No. SC 255 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:REGINA
Appellant

AND:TRACEY LEE BUGGY
Respondent

Judges:  Higgins CJ, Connolly and Lander JJ
Date:  8 November 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal by the Crown against a sentence imposed by a judge of this Court on 28 March 2006.

The respondent was charged with three counts of defrauding the Commonwealth and one count of dishonestly obtaining a financial advantage by deception. She pleaded guilty to those charges in the Magistrates Court and was committed to the Supreme Court of the Australian Capital Territory (ACT) to be dealt with as provided by s 90A of the Magistrates Court Act 1930.

The respondent was sentenced to six months imprisonment in relation to the first charge of defrauding the Commonwealth. In relation to the second and third charges of defrauding the Commonwealth she was sentenced to two years imprisonment on each concurrent with each other but which sentence was cumulative upon the first charge of defrauding the Commonwealth. On the charge of dishonestly obtaining a financial advantage by deception she was sentenced to two years imprisonment also cumulative upon the sentence on the first charge but, again, concurrent with the sentences on the second and third charges.

The effect of those sentences was a head sentence of two years and six months. The respondent was ordered to be released forthwith upon her giving security by recognisance in the sum of $3,000 upon the following conditions:

(1) be of good behaviour for…

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 Buggy

Details

AGLC: R v Buggy [2006] ACTCA 20
Case: [2006] ACTCA 20
Decision Date: 8 November 2006

CaseChat Overview and Summary

In *R v Buggy*, the Crown appealed against a sentence imposed on the respondent, who had been convicted of social security fraud. The central issue before the Full Court of the Supreme Court of Queensland was whether the sentencing judge had erred in suspending the respondent's sentence of imprisonment in full. The Crown contended that the sentence should not have been fully suspended, particularly in light of concerns raised about a psychiatric report that had been before the sentencing judge.

The court was required to determine whether the sentencing judge was entitled to rely on the psychiatric report in suspending the sentence, notwithstanding that the psychiatrist who prepared the report was not called to give evidence and be cross-examined. The Crown's challenge to the psychiatrist's opinion formed a significant part of the appeal.

The Full Court reasoned that the sentencing judge had acted within their discretion in considering the psychiatric report. While acknowledging the Crown's concerns about the lack of cross-examination, the court held that it was open to the judge to accept the report's findings as part of the material upon which to base the sentencing decision. The court did not find that the judge had made an error of law or principle in suspending the sentence, and therefore, the Crown's appeal was dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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