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R v Bugmy

R v Bugmy

Case [2012] NSWCCA 223 18 October 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v BUGMY [2012] NSWCCA 223
Hearing dates: 8 October 2012
Decision date: 18 October 2012
Before: Hoeben JA: at [1]
Johnson J: at [57]
Schmidt J: at [58]
Decision:
(1) Crown appeal allowed.
(2) Confirm the sentence imposed in the District Court on 16 February 2012 in respect of counts 1 and 2.
(3) Quash the sentence imposed in the District Court on 16 February 2012 in respect of count 3.
(4) In substitution for the sentence imposed in respect of count 3, sentence the respondent as follows:
Count 3 - Imprisonment with a non-parole period of 5 years to commence 8 April 2011 and to expire 7 April 2016 with a balance of term of 2 years and 6 months to commence 8 April 2016 and to expire 7 October 2018.

Catchwords: CRIMINAL LAW - sentence appeal - causing grievous bodily harm with intent to cause grievous bodily harm - prison officer struck in eye with pool ball losing sight of that eye - failure to have adequate regard to category of victim when assessing objective seriousness of offence - error in treatment of respondent's mental illness - whether Court should continue to have regard to respondent's background of social deprivation - need to re-sentence - sentence should be increased.
Legislation Cited: Crimes Act 1900 - s33(1)(b), s60A(1)
Criminal Appeal Act 1912 - s5D
Crimes (Sentencing Procedure) Act 1999 - s21A(2)(a), s21A(2)(c), s21A(2)(d), s21A(2)(g)
Cases Cited: Beldon v R [2012] NSWCCA 194
Butters v R [2010] NSWCCA 1
Ciaron McCullough v R [2009] NSWCCA 94
Director of Public Prosecutions (DPP) Cth v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Kennedy v R [2010] NSWCCA 260
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Peter Schneidas (No 1) (1980) 4 A Crim R 96 at 100
R v Ah-See [2004] NSWCCA 202
R v Engert (1995) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v Hemsley [2004] NSWCCA 228
R v McNaughton [2006] NSWCCA 55; 66 NSWLR 48
Regina v Davis (NSW CCA, unreported, 4.2.1994)
Regina v Fernando [2002] NSWCCA 28
Category: Principal judgment
Parties: Regina - Appellant Crown
William Bugmy - Respondent
Representation: Counsel:
Mr R Herps - Appellant Crown
Ms D Yehia SC - Respondent
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions - Appellant Crown
SE O'Connor, Legal Aid Commission - Respondent

File Number(s): 2011/16041
Decision under appeal

Date of Decision:

2012-02-16 00:00:00

Before:

Lerve ADCJ

File Number(s):

2011/16041

Judgment

HOEBEN JA:

Offences and sentence

On 17 May 2011 the respondent pleaded guilty to the following charges:

(i) That on 8 January 2011 at Broken Hill did assault Steven Pitt, a Corrective Services Officer, while in the execution of his duty, contrary to s60A(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years.

(ii) That on 8 January 2011 at Broken Hill did assault John Donnelly, a…

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 Bugmy

Details

AGLC: R v Bugmy [2012] NSWCCA 223
Case: [2012] NSWCCA 223
Decision Date: 18 October 2012

CaseChat Overview and Summary

The appellant, Bugmy, was convicted of causing grievous bodily harm with intent to cause grievous bodily harm to a prison officer by striking him in the eye with a pool ball, causing him to lose sight in that eye. The appellant was sentenced to a term of imprisonment, and the case was brought to the Court of Criminal Appeal for an appeal against the sentence. The appellant contended that the sentence was manifestly inadequate due to the primary judge's failure to have adequate regard to the category of the victim when assessing the objective seriousness of the offence, and that the primary judge erred in the treatment of the appellant's mental illness and in continuing to have regard to the appellant's background of social deprivation.

The court found that the primary judge erred in failing to have adequate regard to the category of the victim when assessing the objective seriousness of the offence. The court held that the appellant's actions were directed at a prison officer performing their duty and that the primary judge should have given greater weight to the fact that the appellant's actions were directed at a prison officer. The court also found that the primary judge erred in the treatment of the appellant's mental illness, as the appellant's mental illness did not mitigate the objective seriousness of the offence. However, the court found that the primary judge did not err in continuing to have regard to the appellant's background of social deprivation, as it was relevant to the appellant's culpability. The court held that the sentence should be increased due to the errors identified.

The Court of Criminal Appeal allowed the appeal against sentence, quashed the original sentence, and re-sentenced the appellant to a term of imprisonment with a minimum non-parole period. The court held that the sentence should reflect the objective seriousness of the offence, taking into account the category of the victim, and that the appellant's mental illness and background of social deprivation did not mitigate the objective seriousness of the offence. The court increased the sentence to reflect the errors identified in the original sentence assessment.

Orders