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R v Bugmy

R v Bugmy

Case [2004] NSWCCA 258 3 August 2004

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CITATION: R v S W Bugmy [2004] NSWCCA 258

HEARING DATE(S): 18/06/04

JUDGMENT DATE:
3 August 2004

JUDGMENT OF: Bryson JA at 1; James J at 2; Kirby J at 3

DECISION: 1. Leave to appeal is granted; 2. The appeal is allowed in respect of condition (4) of the bond which is hereby quashed. The sentence imposed by Finnane DCJ on 21 February 2003 is otherwise confirmed.

CATCHWORDS: Criminal Practice & Procedure - appeal against sentence - whether excessive - bond - condition of bond that not enter Willicania except with Judge's permission - whether valid - test to be applied in determining validity of conditions of a bond.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985 (NSW)

CASES CITED: R v Fernando (1992) 76 A Crim R 58
Veen v The Queen (No 2) (1988) 164 CLR 465
R v Shankley [2003] NSWCCA 253
Gamgee (2001) 124 A Crim R 469
R v Hammoud (2000) 118 A Crim R 66
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
Macpherson v Beath (1975) 12 SASR 174
Williams v Marsh (1985) 38 SASR 313
R v Harvey (1989) 40 A Crim R 102
R v Sanerive (CCA (Vic), unreported, 23.6.95)
Lapa (No 2) (1995) 80 A Crim R 398
Miroslav Jovanovic (1999) 106 A Crim R 548

PARTIES :

Regina
Steven Wayne Bugmy

FILE NUMBER(S): CCA 60403/03

COUNSEL: G Rowling (Crown)
A Joseph (Appl)

SOLICITORS: S Kavanagh (Crown)
P Katsoolis (Appl)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0154

LOWER COURT
JUDICIAL OFFICER : Finnane DCJ

60403/03

BRYSON JA
JAMES J
KIRBY J
Tuesday 3 August 2004

REGINA v Steven Wayne BUGMY

Judgment

1 BRYSON JA: I agree with Kirby J.

2 JAMES J: I agree with Kirby J.

3 KIRBY J: Steven Wayne Bugmy ("the applicant") seeks leave to appeal against a sentence imposed by Finnane DCJ on 21 February 2003. Mr Bugmy pleaded guilty to two counts as follows:

Count 1:

Crimes Act

Count 2:

Crimes Act

4 The maximum penalty for each offence was five years imprisonment. The offences were committed on 7 April 2002. Mr Bugmy had been in custody since 16 April 2002, a period of a little over ten months. Taking account of that time, his Honour imposed the following sentences:

Count 2

Count 1 (assault occasioning actual bodily harm): Imprisonment for two years from 16 January 2003 to 15 January 2005, such term to be suspended from 21 February 2003, upon Mr Bugmy entering a bond under s12 of the Crimes (Sentencing Procedure) Act 1999, such bond to be subject to a number of conditions.

The grounds of appeal.

5 The written submissions of counsel for Mr Bugmy raise a number of issues. Paraphrasing those submissions, the complaints against the…

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 [2004] NSWCCA 258
Case: [2004] NSWCCA 258
Decision Date: 3 August 2004

CaseChat Overview and Summary

In the case of R v Bugmy, the appellant was convicted of several offences and was subsequently sentenced. The appellant appealed against the sentence, arguing that it was excessive, and also contested the validity of certain conditions attached to a bond. The matter was heard in the relevant court of appeal. The primary issues before the court were whether the sentence imposed was excessive and whether the specific condition in the bond that restricted the appellant from entering Willicania except with the permission of a Judge was valid.

The court examined the severity of the sentence in relation to the nature and circumstances of the offences committed. It considered whether the sentence was disproportionate and if it was excessive under the applicable legal standards. In relation to the bond condition, the court applied the established test to determine its validity. It assessed whether the condition was reasonable and necessary for the protection of the community or for the purpose of ensuring the appellant's appearance in court. The court also considered whether the condition imposed an undue hardship on the appellant.

Upon reviewing the sentence and the bond condition, the court concluded that the sentence was not excessive given the nature of the offences and the circumstances surrounding them. However, the court found that the condition restricting the appellant from entering Willicania was not valid. The condition was deemed to be unreasonable and unnecessarily restrictive, lacking a clear connection to the purposes for which conditions on a bond could be imposed. The court determined that the condition imposed an undue hardship on the appellant without serving a justifiable purpose. The appeal against the sentence was dismissed, but the condition of the bond was found to be invalid.

Orders