R v Bugmy (No 2)

Case •

[2014] NSWCCA 322

•

19 December 2014

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v Bugmy (No 2) [2014] NSWCCA 322
Hearing dates:1 October 2014
Decision date: 19 December 2014
Before: Bathurst CJ at [1]
Rothman J at [23]
RA Hulme J at [106]
Decision:

Appeal dismissed.

Catchwords:

CRIMINAL LAW - Appeal - Prosecution appeal against sentence - Remittal from High Court - Manifest inadequacy - Objective seriousness - Whether factor aggravating or mitigating - Subjective circumstances - Social deprivation -Aboriginal offender - Manifestly lenient - Error of law

CRIMINAL LAW - Appeal - Sentencing principles - Residual discretion not to intervene - Delay after plea - Imminent release on parole - Change in Crown position - Residual discretion exercised - Appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Bugmy v The Queen [2013] HCA 37; (2012) 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (DPP) (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14
Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Marbury v Madison (1803) 5 US 137
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Nowak v R [2008] NSWCCA 89; (2008) 183 A Crim R 526
R v Bugmy [2012] NSWCCA 223
R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45
R v CMB [2014] NSWCCA 33
R v Engert (1995) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
R v Hayes (1987) 29 A Crim R 452
R v Kennedy [2013] NSWSC 1940
R v Lewis [2014] NSWSC 1127
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Rae [2013] NSWCCA 9
Veen v R (No 2) [1998] HCA 14; (1998) 164 CLR 465
Weininger v R [2003] HCA 14; (2003) 212 CLR 629
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category:Principal judgment
Parties: Regina (Applicant)
William Bugmy (Respondent)
Representation: Counsel:
NJ Adams (Applicant)
P Strickland SC/with T Quilter (Respondent)
Solicitors:
Solicitor for Director of Public Prosecutions (Applicant)
Aboriginal Legal Service (NSW/ACT) (Respondent)
File Number(s):2011/16041
Publication restriction:None
 Decision under appeal 
Date of Decision:
2012-02-16 00:00:00
Before:
Lerve ADCJ
File Number(s):
2011/16041

Judgment

  1. BATHURST CJ: William David Bugmy (the respondent), pleaded guilty on 17 May 2011 to two counts of assaulting a law enforcement officer whilst in the execution of duty contrary to s 60A(1) of the Crimes Act 1900 (NSW) (the Act) and one count of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Act.

  1. The facts and circumstances giving rise to the offence are set out in the judgment of Rothman J, which I have had the benefit of reading in draft, and it is unnecessary to repeat them. His Honour also has set out the aggravating circumstances surrounding the offence as found by the sentencing judge and the sentencing judge's findings of the subjective circumstances of the respondent.

  1. The sentencing judge imposed a sentence of a fixed term of imprisonment of 8 months commencing on 8 January 2011 in respect of the first two counts and a sentence of 6 years imprisonment with a non-parole period of 4 years to date from 8 April 2011 in respect of the third count. In imposing these sentences, his Honour allowed a discount of 25% for an early plea.

  1. The Crown appealed to this Court, initially upon the ground that the sentence imposed was manifestly inadequate. Subsequently, three further grounds were added: His Honour failed to properly determine the objective seriousness of the offence; His Honour failed to properly acknowledge the category of the victim as a serving prison officer in the lawful performance of his duties; and the weight his Honour afforded the respondent's subjective case impermissibly ameliorated the appropriate sentence.

  1. On 18 October 2012 this Court allowed the appeal in respect of the sentence imposed on the third count and resentenced the respondent on that count to a term of imprisonment with a non-parole period of 5 years commencing on 8 April 2011 and to expire on 7 April 2016, with a balance of term of 2 years and 6 months to commence on 8 April 2016 and to expire on 7 October 2018: R v Bugmy [2012] NSWCCA 223 (the first appeal)

  1. In reaching this conclusion the Court determined that the three additional grounds of appeal were made out. In relation to the first and second grounds, the Court concluded that the primary judge erred in finding that the offence was at or about the mid-range of seriousness for the type of offence in question and should have concluded that the offence was somewhere between mid-range and somewhat above mid-range: the first appeal at [31]-[33].

  1. In relation to the third ground, the Court concluded that the sentencing judge had failed to give adequate weight to the respondent's bad criminal record and that he erred in taking into account the respondent's mental illness so as to reduce the weight to be given to general deterrence in circumstances where it was conceded that his mental illness had nothing to do with the offence: the first appeal at [41]-[43].

  1. The Court also expressed the view that with the passage of time the extent to which social deprivation in a person's youth and background can be taken into account must diminish: the first appeal at [50].

  1. The High Court allowed an appeal from this decision: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (the High Court decision). The Court described the additional three grounds as particulars of manifest inadequacy and indicated that this Court, in those circumstances, erred in resentencing without deciding whether the sentence was manifestly inadequate: the High Court decision at [22]-[24] and [55]. The plurality also held that this Court erred in stating that the evidence of the respondent's deprived background lost much of its force when viewed against the background of his previous offences: the High Court decision at [42] and [43].

  1. In these circumstances, the matter was remitted to this Court.

  1. Two issues thus arise. First, was the sentence imposed by the sentencing judge manifestly inadequate, second, if so, should this Court in the exercise of its residual discretion decline to resentence the respondent?

Manifest inadequacy

  1. For manifest inadequacy to be made out it must be established that the sentence is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]. Put another way, it is necessary to establish that the sentence was outside the range of sentences that could have been imposed, such that the appellate court concludes there must have been some misapplication of principle even though when or how is not apparent from the statement of reasons: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59] and Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58].

  1. The submissions of each of the parties in the present case tended to focus upon individual errors rather than on the question of whether the sentence was manifestly inadequate. This was to some extent to repeat the approach criticised in the High Court decision.

  1. In the present case I am of the view that the sentence was manifestly inadequate. It was a serious assault done with intent to cause grievous bodily harm to a law enforcement officer going about his duties. The assault was unprovoked and had tragic consequences for the victim. Further, although it could not be described as premeditated, it was a culmination of a course of conduct which indicated a clear intention to inflict serious harm.

  1. In that context it must be remembered that the maximum penalty for the third count was 25 years imprisonment with a standard non-parole period of 7 years.

  1. It is of course necessary to take the respondent's subjective circumstances into account. Further, weight must be given to the respondent's deprived background, taking into account, while his inability to control his violent approach to frustration reduces his moral culpability, it also emphasises the need to take into account the protection of the community and the need for personal deterrence: the High Court decision at [44] and [45], R v Engert (1995) 84 A Crim R 67 at 68 and Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 (Munda) at [54]-[58]. In this regard the respondent's lengthy criminal record for violent offences is particularly relevant.

  1. Taking these factors into account I am of the opinion that the sentence imposed on the respondent was manifestly inadequate.

The residual discretion

  1. The residual discretion is to be exercised having regard to the fact that the principal purpose of a Crown sentence appeal is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 (Green) at [1]. In that case the plurality described the purpose as a limiting purpose, not extending to the general correction of errors made by sentencing judges: Green at [36]. In Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634 the Victorian Court of Appeal at [104] stated that factors which might be relevant include delay, parity, the totality principle, rehabilitation and fault on the part of the Crown. To that may be added, the imminence of the release of the respondent on parole: Munda at [72].

  1. The respondent pleaded guilty to the offence in question on 17 May 2011. He was not sentenced for a period of nine months, the Court of Appeal setting aside his sentence five months later. The judgment of the High Court was delivered approximately 12 months thereafter and a further year elapsed before the remitted proceedings were heard. Without ascribing fault at all, the delay in this case has been significant.

  1. It should further be noted that the respondent is eligible for parole on 8 April 2015.

  1. Further, any guidance as to the relevant sentencing principles will have been given in the High Court decision. No further guidance will be given by this Court resentencing.

  1. In these circumstances the residual discretion should be exercised in favour of the respondent and the appeal dismissed.

  1. ROTHMAN J: The Court has before it an appeal by the Crown against the sentence imposed by the District Court on the respondent, William David Bugmy. The respondent entered a plea of guilty to three offences: two counts of assaulting a law enforcement officer while in the execution of officer's duty, although no actual bodily harm is occasioned, contrary to s 60A(1) of the Crimes Act 1900; and one count of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900.

  1. The High Court of Australia, after a successful appeal from an earlier judgment of this Court, remitted the Crown's appeal to the Court (Bugmy v The Queen [2013] HCA 37; (2012) 249 CLR 571) and the Court is required to deal with the appeal afresh.

Facts

  1. It is, as a matter of completeness, necessary to re-state the facts relevant to the sentencing exercise. Those facts have been summarised a number of times: first, by the sentencing judge; by an earlier judgment of this Court (R v Bugmy [2012] NSWCCA 223); and in the High Court. Necessarily, each summary depends upon Agreed Facts that were before the sentencing judge.

  1. Before re-stating those facts, it is appropriate to set out the history of the charges and proceedings.

  1. On 8 January 2011, the respondent was a remand prisoner in the Broken Hill area and assaulted Corrective Services Officers. He was charged with three offences:

(i) On 8 January 2011 at Broken Hill [the respondent] did assault Steven Pitt, a Corrective Services Officer, while in the execution of his duty, contrary to s 60A(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years;

(ii) On 8 January 2011, at Broken Hill [the respondent] did assault John Donnelly, a Corrective Services Officer, while in the execution of his duty, contrary to s 60A(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years;

(iii) On 8 January 2011, at Broken Hill [the respondent] did cause grievous bodily to Jason Gould with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 25 years and which has a standard non-parole period of 7 years.

  1. The respondent pleaded guilty at the earliest opportunity and on 16 February 2012 he was sentenced in the District Court as follows:

Counts 1 and 2: Imprisonment for a fixed term of 8 months to commence on 8 January 2011 and expire on 7 September 2011;
Court 3: Imprisonment for a non-parole period of 4 years to commence on 8 April 2011 and expire on 7 April 2015 with a balance of term of 2 years to expire on 7 April 2017.

  1. The total effective sentence was non-parole period of 4 years and three months with a balance of term of a further 2 years.

  1. Pursuant to the provisions of s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions appealed against that sentence. The ground of appeal, in that appeal, was that:

"The sentence imposed was manifestly inadequate".

Certain particulars were advanced, in the following terms:

(i)   His Honour failed properly to determine the objective seriousness of the offence;

(ii)   His Honour failed properly to acknowledge the category of the victim as a serving Prison Officer in the lawful performance of his duty;

(iii)   The weight his Honour afforded the respondent's subjective case impermissibly ameliorated the appropriate sentence;

  1. On 18 October 2012, this Court allowed the Crown appeal in relation to Count 3, quashed the sentence imposed in the District Court on that count, substituting a more severe sentence, and dismissed the appeal against Counts 1 and 2.

  1. From the orders of the Court, the respondent to this appeal sought leave to appeal and, once leave was granted, appealed to the High Court of Australia. On 2 October 2013, the High Court allowed the appeal, set aside orders 1, 3 and 4 of the Court of Criminal Appeal on 18 October 2012, and remitted the matter to the Court to deal with in accordance with law. The Court now deals with the Crown appeal in accordance with the orders of the High Court of Australia.

  1. As earlier stated, there was an Agreed Facts Statement tendered by the Crown, which was marked as Exhibit A in the sentencing proceedings. Even though the appeal now before the Court concerns only Count 3 (the appeals in counts 1 and 2 having been dismissed by the earlier judgment of the Court of Criminal Appeal and not disturbed in the High Court), the facts will include those matters that gave rise to the charges in Counts 1 and 2, otherwise the context of the offence in Count 3 would be lacking.

  1. On 8 January 2011, the respondent was on remand at Broken Hill Correctional Centre. Jason Gould, a Senior Correctional Officer, was on duty and heard the respondent arguing with another correctional officer, Correctional Officer Caldwell. SCO Gould approached the respondent and made an enquiry, the contents of which are not set out in the Agreed Facts.

  1. The respondent was upset that a proposed visitor to him may not be able to arrive before the expiry of visiting hours. SCO Gould offered to find out if visiting hours could be extended to accommodate the visitor's later arrival from Senior Officer Merton.

  1. The respondent followed SCO Gould into the wing in which the office was located and where Officers Gould and Caldwell were standing. The respondent was prohibited from entering the office.

  1. The respondent said he would fight SCO Gould and made various threats, including "I'll split you open".

  1. SCO Gould called his superior, Assistant Superintendent Pitt and advised him that the emergency team might be required to attend his location. The respondent then walked away. Some minutes later Assistant Superintendent Pitt attended the office.

  1. A few minutes later, the respondent was involved in a telephone conversation with his girlfriend, during which the respondent threatened to "split Gould open". At or about that time, Officers Pitt and Donnelly entered the yard to speak with the respondent. At the end of the phone call, Officer Pitt asked the respondent "how did you go?". The respondent replied:

"That cocksucker, I'll get him".

  1. Officer Pitt explained that he meant the phone call and the respondent replied "come on, you want a piece of me, I'll split you c_ _t"

  1. The respondent ran to a nearby pool table and held up a number of pool balls as if threatening to throw them at Officers Pitt and Donnelly. Officers Pitt and Donnelly retreated as two balls were thrown, one narrowly missing Officer Pitt. While throwing the pool balls the respondent yelled:

"Come on c_ _ ts, come on I'll split youse".

  1. The foregoing assaults are Counts 1 and 2 in the original charges.

  1. Officers Pitt and Donnelly called for assistance. Senior Correctional Officer Gould came into the yard. When the respondent saw SCO Gould he began throwing pool balls in his direction and said:

"Gould you c _ _ t, I told you I am going to split you open".

  1. The respondent then threw two pool balls at SCO Gould, which struck him in the back. The respondent ran into the yard while SCO Gould went into the office. When SCO Gould was attempting to close the office door, the respondent threw one or two pool balls at SCO Gould, one of which struck him in the left eye. This last assault was that which was charged in Count 3 and is the offence with which the Court must deal.

  1. The ball was subsequently found to have broken into three pieces, which his Honour accepted occurred during the assault (ROS, 7) and was not broken before it was thrown.

  1. The respondent continued to throw pool balls at the correctional officers before climbing onto the gym roof, carrying a number of pool balls. The respondent threw some of these towards the officers, however none struck anybody. Later, the respondent descended from the roof and surrendered to officers.

Remarks on Sentence

  1. The sentencing judge noted that SCO Gould's eye injury was serious and included retinal detachment and orbital fractures, including a ruptured globe and total iris disruption (ROS, 5). His Honour also noted that SCO Gould was required to undergo a number of operations, including a bone graft from his hip to repair the bone around the eye, and the insertion of metal plates in the orbital floor and cheek. These procedures left SCO Gould in considerable pain and the mental plates were removed 8 months later (ROS, 5). SCO Gould was, at the time of sentencing, on the waiting list for a donor corneal tissue transplant as his left cornea was completely decompensated (ROS, 5).

  1. The sentencing judge noted that SCO Gould was a Correctional Services Officer, which, in the correct view of the sentencing judge, was an aggravating factor: s 21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (ROS, 6). His Honour considered that the nature of this aggravating factor made general deterrence more relevant but noted, correctly, that the respondent's mental health issues must be considered in relation to those aspects (ROS, 16).

  1. The sentencing judge noted that SCO Gould has, as a result of the injuries to him, suffered post-traumatic stress disorder, has essentially lost his career, and has significant ongoing psychological issues. During the sentencing proceedings, the respondent's counsel conceded that significant psychological harm was inflicted on SCO Gould, justifying the finding of aggravation in accordance with s 21A(2)(g) Crimes (Sentencing Procedure) Act. His Honour made it clear that, in sentencing the respondent, he took into account the psychological harm, but not the physical injury as that was an essential element of the maliciously inflict grievous bodily harm for which he was sentencing (ROS, 6).

  1. His Honour took account of the use of the pool ball as a weapon as an aggravating factor to which s 21A(2)(c) refers and agreed with the Crown that the respondent used the weapon available to him at the time (ROS, 6-7): Nowak v R [2008] NSWCCA 89; (2008) 183 A Crim R 526 at [15]-[17].

  1. The sentencing judge also noted the respondent's substantial criminal record, particularly for matters of violence, both as an adult and as a juvenile and the fact that the respondent was on remand for charges of assault police (and other associated charges), for which the respondent had not yet been sentenced. His Honour utilised the prior convictions as an aggravating feature, particularly with reference to the attitude of disobedience of the law and the increased weight to be given to retribution, deterrence (relevantly personal deterrence) and the protection of society and, in so doing, expressly referred to the judgment of the Court in R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566, applying Veen v R (No 2) [1998] HCA 14; (1998) 164 CLR 465 and Weininger v R [2003] HCA 14; (2003) 212 CLR 629.

  1. His Honour considered the subjective circumstances of the offender in depth. While the Crown takes issue with the weight his Honour gave to the subjective circumstances, no issue has been taken by either party to the accuracy of his Honour's statement of those circumstances.

  1. The respondent was 29 years of age at the time of the offending (ROS, 3) and his early life exposed him to significant violence and alcohol abuse and limited his education to year 7. As a consequence, the respondent's literacy and numeracy skills were poor (ROS, 10).

  1. The respondent's childhood also saw him utilise substances of addiction and he commenced using cannabis and alcohol at the age of 12 years and has developed a high degree of dependency on both of these substances (ROS, 11).

  1. Rehabilitation has not occurred, although the respondent had previously indicated a willingness to enter into residential rehabilitation (ROS, 11).

  1. There were two forensic psychiatrist reports upon which his Honour relied, being reports of Dr Westmore. While the respondent is a poor historian in terms of his own life, the psychiatric reports disclose that the respondent has experienced auditory hallucinations of uncertain origin, probably as a result of alcohol abuse (ROS, 11-12). The reports note that the respondent was on anti-psychotic medication at the time of review, which appeared to assist him. No particular diagnosis was given, however it was noted that the respondent has a Conduct Disorder, Alcohol Abuse Disorder, Alcohol Amnesic Disorder, Substance Abuse Disorder and probable episodes of depression, together with brain damage likely caused by early alcohol consumption or an early head injury (ROS, 12). Neither report establishes a link between the mental disorders or illness and the offending behaviour (ROS, 12).

  1. His Honour, in his Sentencing Remarks, referred expressly to the judgments in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 and R v Engert (1995) 84 A Crim R 67 and allowed some moderation to the weight to be given to general deterrence because of the issues associated with the psychiatric and/or brain injury from which the respondent suffered (ROS, 13). The respondent has spent a considerable amount of time in custody.

  1. The sentencing judge noted that the respondent was of Aboriginal descent and grew up in circumstances of social deprivation and in a dysfunctional environment associated with alcohol and abuse. His Honour held that the principles in R v Fernando (1992) 76 A Crim R 58 and R v Kennedy [2013] NSWSC 1940 were required to be considered (ROS, 14).

  1. His Honour examined the statistics for offences of like-kind and expressly referred to the need to impose a sentence that is proportionate to the criminality of the offence (ROS, 14-15).

  1. The respondent had, at the time of sentencing, been held in segregation due to the finding of a syringe in his bag. His Honour took the view that such a factor would not reduce the sentence significantly, but was prepared to take it into account in the finding of special circumstances (ROS, 14). His Honour also noted that the respondent was in danger of being institutionalised and had a great need for intensive residential full-time rehabilitation, which factors operated in favour of a finding of special circumstances, despite the respondent's extensive criminal history (ROS, 16-17).

  1. His Honour allowed a 25% discount for the utilitarian value of the plea of guilty (ROS, 2) and noted that the degree of accumulation should not be significant (ROS, 16). His Honour recommended release at the expiration of the non-parole period, subject to supervision that may require treatment for alcohol and substance abuse in a residential program (ROS, 18).

Principles on Sentencing and Appeal

  1. To a large extent the principles applied by this Court in dealing with a Crown appeal are well-known and do not need restating in full. Nevertheless, given the history of this litigation, it is appropriate to summarise, albeit very briefly, the relevant principles to be applied on this appeal.

  1. An appeal is a creature of statute, otherwise unknown to the common law (except to the extent included within the writs of certiorari: see Marbury v Madison (1803) 5 US 137). A Crown appeal, even within the provisions for statutory appeals, is a recent and relatively rare enactment. Once there is provision for a Crown appeal as of right (see s 5D of the Criminal Appeal Act 1912), the appeal must be dealt with in accordance with law.

  1. Until the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 there existed a discretion, unqualified by statute, to dismiss a Crown appeal against sentence or refuse to impose a less severe sentence in any such appeal on the basis of "double jeopardy", being the difficulty, distress and anxiety caused by the prospect that the offender will be sentenced twice for the same offence.

  1. Notwithstanding the provisions of s 68A of the Crimes (Appeal and Review) Act, there remains a residual discretion to be exercised by this Court to dismiss a Crown appeal against sentence: R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7; Bugmy v R (HC) at [24]; Green R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [26] and [131]; Director of Public Prosecutions (DPP) (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14 at [99]-[105]; R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45.

  1. It is unnecessary and inappropriate to set out exhaustively or to define precisely the many reasons that, as a matter of discretion, might form a basis upon which the Court may dismiss an appeal utilising the residual discretion. Some have been mentioned in the foregoing authorities. In Green & Quinn, Bell J referred to an appellant's progress to reform and the closeness to the date of their eligibility for parole as two such bases for exercise of the residual discretion. In Karazisis, Ashley, Redlich and Weinberg JJA referred to delay, parity, the totality principle, rehabilitation, fault on the part of the Crown, and lack of fault on the part of the appellant as factors, each of which is far removed from double jeopardy, yet would be easily seen as factors justifying the exercise of the residual discretion in any given case.

  1. The principles on the exercise of the residual discretion to dismiss an appeal regardless of the view of the Court that there may be error, either identifiable or manifest, are an important starting point not only because they govern the exercise of the Court's discretion in this case, but also because they were the subject of comment in Bugmy in the High Court. The High Court, at [24], commented that the Court was "required to consider whether the Director's Appeal should nonetheless be dismissed in the exercise of the residual discretion". As such, it is necessary in this appeal to consider the issue.

  1. Otherwise the principles on appeal, and on a Crown appeal, are well-known and established. So too, are the principles in sentencing.

  1. Sentencing is a process of intuitive synthesis, in which the sentencing judge imposes a sentence appropriate to the offence that was committed and the offender who committed it. A process of intuitive synthesis is, in part, involved because the purposes of sentencing are overlapping, cannot be considered in isolation from each other and often point in different directions.

  1. Those purposes are prescribed by s 3A of the Crimes (Sentencing Procedure) Act 1999 and include the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. Obviously, in an ideal world, a guarantee as to the rehabilitation of an offender would be the best personal deterrent and prevent reoffending. Yet, rehabilitation is not a guaranteed outcome. Moreover, such an approach would necessarily ignore the need for adequate punishment for an offence already committed and the need for general deterrence of others who may be tempted to offend.

  1. The fixing of an appropriate sentence must take into account each of those factors and seek to impose a sentence that accords with each of those purposes in a manner appropriate for the offence and the offender. Often the particular issues faced by an offender will dictate the nature of the sentence and its structure. The fixing of a sentence and its structure is not a mechanical or mathematical exercise and, within the range of sentences that are available for the offence and the offender in question, different judges may structure a sentence differently. There is no one correct sentence that may be imposed.

  1. As a consequence of the foregoing principles, and the nature of the exercise undertaken in sentencing, there are established principles limiting the basis upon which this Court will interfere with the imposition of a sentence on appeal. The Court will not merely substitute its own opinion for that of the sentencing judge and the mere fact, if it be the fact, that one or more judges of this Court would have sentenced on a different basis or with a different structure will not, of itself, allow the Court to intervene.

  1. The Court will intervene when error, either identifiable or manifest, has been disclosed. That error must involve a mistake of law, acting on a mistake of fact, the misapplication of principle, taking into account irrelevant factors or not taking into account all relevant factors. Where an error of the foregoing kind cannot be identified, the Court will intervene only where the result is such that it is unreasonable or plainly unjust and the Court can therefore infer that there has been a failure to exercise the discretion properly.

Ground of Appeal: Manifest Inadequacy

  1. The Court will deal with the particulars of inadequacy as part of dealing with the one and only ground on which the Crown relies. As earlier stated, in order for the Crown to establish that the sentence imposed in the District Court was manifestly inadequate, the Crown must establish that the sentence with which the Court is now dealing was unreasonable or plainly unjust. There is no single correct sentence and a sentencing judge "should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected": Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at [26], cited with approval in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [58].

  1. In Hili & Jones, the plurality discussed manifest inadequacy and referred to the judgments of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325 and Wong v R [2001] HCA 64; (2001) 207 CLR 584 to the effect that manifest inadequacy is a conclusion and not justified simply because the result arrived at below is markedly different from sentences that have been imposed in other cases. It is justified when the sentence imposed is outside the range of available sentences in all of the circumstances of the case: Bugmy (HC) at [52] per Gageler J, citing Hili & Jones at [58]-[60].

  1. As was made clear by the High Court in Bugmy, the Court of Criminal Appeal on the earlier occasion did not deal with the question of manifest inadequacy, nor the residual discretion.

  1. Before discussing the particulars provided to support its submission that the sentence imposed was manifestly inadequate, it is appropriate to emphasise one particular aspect of the sentence imposed.

  1. The aggregate sentence imposed for all of the counts before the sentencing judge was, as earlier stated, a non-parole period of 4 years and 3 months with a further 2 years remainder of sentence. One aspect of the sentence that has not been given sufficient attention, particularly when one is dealing with a submission of manifest inadequacy, is the recommendation or condition of release on parole, at the conclusion of the non-parole period, that the offender undergo full-time residential rehabilitation. Most of such courses are a minimum of 9 months in duration and usually approximately 12 months in duration. Assuming, as we must, that the recommendation or condition will be implemented by the probation and parole service, the effect is for a period of "custody" of approximately 5 years' duration.

  1. Neither party, in particular the Crown, referred to this additional aspect of the structure of the sentence imposed by his Honour. The Crown dealt with the particulars of the sentence, rather than the exceptional nature of the structure imposed by his Honour, which reflected his Honour's significant experience in criminal law and in the conditions appropriate in rural New South Wales, particularly for Aboriginal offenders.

  1. The Crown points to the determination by his Honour of the objective criminality of the offence as "slightly less serious" than the mid-range of seriousness as error. To the extent that the Crown submits that it is error because it does not "accurately reflect the submissions of either party", the assessment by his Honour was a conclusion. It does not need to "reflect the submissions of either party".

  1. An assessment by a sentencing judge of the degree of objective seriousness is an assessment that will be disturbed only on one of the well-known bases for the interference with the sentencing exercise.

  1. The assessment of the objective seriousness of the offence did not involve any identifiable error of principle by the sentencing judge. Nor did it take into account any irrelevant matter or fail to take account of any relevant matter. His Honour seems to have accepted a differentiation in seriousness between the state of mind involved in the offence and the injuries that were sustained. This is akin to a fact finding or evaluation exercise.

  1. The circumstances covering an offence under s 33 of the Crimes Act 1900 (commonly termed "maliciously inflict grievous bodily harm") are extremely wide. As his Honour correctly noted, the offence is a result offence in that the existence of the intention to cause grievous bodily harm, if it did not result in actual or grievous bodily harm, would be charged as a common assault and, at the other extreme, if the result were the death of the victim, the charge would be murder: McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [37].

  1. As is now well-established, the assessment of objective seriousness of an offence is one that is typically part of the role of a sentencing judge and this Court is extremely slow to determine such matters for itself or to set aside the judgment made at first instance: Mulato v R [2006] NSWCCA 282 at [37], per Spigelman CJ. The assessment of objective seriousness, while one that may be different to that which the Court as presently constituted would derive, was one that was open to his Honour.

  1. The next particular on which the Crown relies is his Honour's finding that the offence was committed on the "spur of the moment". The Crown distinguishes between the use of those words and the respondent's submission below that the offence, while not entirely spontaneous, was not planned or organised. The distinction is, in the context of these proceedings, somewhat semantic.

  1. His Honour, the sentencing judge, found that the offence arose due to the respondent's reaction to the inability to allow him visitor access. Plainly, that is neither planned nor organised criminal activity and, as a consequence, does not form any factor that is an aggravating feature of the offence (see s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999). Rather, it is a factor that is a mitigating factor pursuant to the terms of s 21A(3)(b) of the Crimes (Sentencing Procedure) Act. It is that mitigating factor to which his Honour was referring when his Honour described the conduct as "spur of the moment".

  1. The Crown also relies upon a proposition that his Honour failed to sufficiently acknowledge the victims' position as law enforcement officers. His Honour described the victims' employment and that their employment as correctional services officers was an aggravating factor pursuant to the terms of s 21A(2)(a) of the Crimes (Sentencing Procedure) Act (ROS, 6). It is not clear, from the Crown submission, what more the Crown says his Honour could have done. There is no arguable basis for the proposition that there was an error of principle or a misapplication of principle in the approach of his Honour in this respect.

  1. Next, the Crown relied, as a particular of manifest inadequacy, on the manner in which his Honour dealt with the psychiatric issues to which Dr Westmore had referred. The Crown was critical of his Honour for taking these matters into account to the degree he did in circumstances where the psychiatric reports referred to "probable" and "likely" diagnoses, because of the difficulty in conditions under which the psychiatrist assessed the respondent.

  1. As was made clear by this Court in Director of Public Prosecutions (DPP) (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [278], his Honour was entitled to take into account the comments of the forensic psychiatrist and deal with the psychiatric issues that the respondent was, more probably than not, suffering in the manner in which he did.

  1. Otherwise, in terms of the respondent's objective case, with the exception of the issues associated with social deprivation, with which I will deal later in these reasons, the Crown has failed to demonstrate the proposition that too much weight was placed on the subjective circumstances. As the High Court said in Bugmy at [24]:

"However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for [the sentencing judge]. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by [the sentencing judge] was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that [the sentencing judge's] discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards."

  1. I must then deal with two aspects of the particular described as "social deprivation", before dealing, more fundamentally, with manifest inadequacy and the range of sentences.

  1. The Crown's submission in this respect was significantly different from that which was put before the first Court of Criminal Appeal hearing, different from that which was put before the sentencing judge and different from that which was put before the High Court. In essence, the Crown submits that, notwithstanding the endorsement of the principles in Fernando and Kennedy by the High Court in Bugmy, the sentencing exercise required greater emphasis on denunciation, deterrence and protection of the community.

  1. The respondent seeks to answer that submission in a number of ways, but, amongst them, was an oral submission that the circumstances of disadvantage of the Aboriginal community are "unique" because of the history of dispossession and those unique circumstances are entitled to be taken into account. Apart from the fact that the last mentioned submission seems contrary to the comments in the judgment of the High Court in Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, it is illogical.

  1. The fact, if it be the fact, that dispossession is a disadvantage suffered uniquely by persons of Aboriginal descent in Australia cannot, without more, be a matter relevant to sentencing. Sentencing synthesises the issues of objective seriousness and the issues of relevance in the subjective circumstances of the offender.

  1. There can be no doubt that Aborigines were dispossessed (see Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1). But others may have been dispossessed from other lands and now live in Australia.

  1. Relevant to sentencing is the effect of any issues or disadvantage on the offender, not its uniqueness. Nothing is before the Court that, in my view, would allow it, in these proceedings, to accept that dispossession, of itself, has had an effect on Mr Bugmy's offending. It is just as illogical to take account of a unique disadvantage solely on that basis as it is to refuse to take account of a relevant disadvantage simply because it is unique.

  1. There may be material which would, in other circumstances, allow for the proposition that other disadvantages have been suffered, which are relevant to Mr Bugmy's moral culpability and his inability to control violent impulses: see R v Lewis [2014] NSWSC 1127 at [39]-[43]. However, no such issues of mitigation have been the subject of evidence or detailed submissions before the Court.

  1. Ultimately, the issue in the proceedings rests upon the assessment of this Court as to the range of sentences available to the sentencing judge and whether the sentence imposed is outside that range. As earlier stated, it is insufficient for this Court to come to a view, simply, that the Court would have imposed a more severe sentence. The sentence must be plainly unjust.

  1. In my view, the non-parole period and head sentence fixed by his Honour are not within the range available. This offence is an extremely serious one and the injury inflicted debilitating. Ordinarily, that conclusion would be sufficient to interfere with the sentence imposed.

  1. The inadequacy of the non-parole period is ameliorated significantly by the condition imposed by his Honour of full-time rehabilitation during the parole period. There can be little doubt that his Honour's experience in criminal law and in rural New South Wales has been used to fashion a sentence that his Honour considered most appropriate for the offence committed and the particular circumstances of the offender. Of itself, that condition renders the sentence imposed exceptional.

  1. Given my attitude to the sentence imposed, I must consider the residual discretion. There has been significant delay (over three and a half years) since the respondent pleaded guilty to these charges. The respondent's sentence is only now being finalised. That delay is not attributable to the respondent.

  1. Moreover, there has been a significant alteration in the Crown's submissions, including to the particulars regarding the alleged manifest inadequacy, from those that were put before the sentencing judge; those that were put before the Court of Criminal Appeal in the first appeal; those that were put before the High Court; and those that have been put before this Court. Even the Crown's attitude to the application of the Fernando principles altered between the sentencing judge and the first Court of Criminal Appeal hearing and altered again in the High Court.

  1. Despite the forgoing, it should be noted that the doctrine of "double jeopardy" has been abolished with respect to a Crown appeal against sentence: R v JW. In the context of a sentence appeal, the term "double jeopardy", while arguably not a form of double jeopardy in the strict sense, encompasses the distress and anxiety that a respondent may experience when faced with the possibility of a more severe sentence: R v Hayes (1987) 29 A Crim R 452 at 469 per Kirby P. While this Court has accepted that evidence of actual anxiety and distress may be relevant to resentencing (R v Rae [2013] NSWCCA 9; R v CMB [2014] NSWCCA 33), the fact that a respondent on a Crown appeal is subject to "double jeopardy" is not relevant to either the exercise of the discretion to intervene or the determination of what sentence should be imposed, once the decision to intervene has been made: R v JW.

  1. While I am prohibited from considering "double jeopardy", I retain a residual discretion to reject a Crown appeal for reasons other than "double jeopardy". The assessment of his Honour as to the prospects of rehabilitation, together with the exceptional structure imposed, are significant factors in determining whether the residual discretion should be exercised. The delay and change in the Crown position on various matters of significance are of most relevance to this consideration. For these reasons, I am satisfied that the Court should exercise the residual discretion and dismiss the appeal.

  1. I propose that the appeal be dismissed.

  1. RA HULME J: I have had the advantage of reading in draft the judgments of Bathurst CJ and Rothman J. I agree that the Crown appeal should be dismissed in the exercise of the Court's residual discretion.

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Decision last updated: 19 December 2014

Most Recent Citation
Cases Citing This Decision

7

State of New South Wales v Bugmy [2017] NSWSC 855
State of New South Wales v Bugmy (Preliminary) [2017] NSWSC 333
R v Lopesi [2025] NSWCCA 15
Cases Cited

37

Statutory Material Cited

4

R v Bugmy [2012] NSWCCA 223
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37