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R v Bugmy (No 2)

R v Bugmy (No 2)

Case [2014] NSWCCA 322 19 December 2014

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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…

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 (No 2)

Details

AGLC: R v Bugmy (No 2) [2014] NSWCCA 322
Case: [2014] NSWCCA 322
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of R v Bugmy (No 2) involved an appeal by the prosecution against a sentence imposed on the defendant, who had pleaded guilty to a serious criminal charge. The matter was remitted to the court of appeal by the High Court. The appeal raised questions about whether the original sentence was manifestly inadequate and whether the sentencing judge erred in considering certain factors as mitigating rather than aggravating. The court was tasked with reviewing the sentence in light of the objective seriousness of the crime, the subjective circumstances of the offender, and the appropriate exercise of sentencing discretion.

The court had to determine if the sentence was manifestly inadequate, taking into account the objective seriousness of the offence and the subjective circumstances of the offender, who was an Aboriginal person from a background of social deprivation. Additionally, the court examined whether the sentencing judge erred in considering certain factors as mitigating, such as the offender's disadvantaged background, or whether these should have been viewed as aggravating factors. The court also considered whether the residual discretion to intervene in the sentence was properly exercised, given the delay in the appeal, the offender's imminent release on parole, and the change in the Crown's position.

After thorough deliberation, the court found that the sentence was not manifestly inadequate and that the sentencing judge had not erred in considering the offender's background as a mitigating factor. The court held that the residual discretion not to intervene was properly exercised in the circumstances. Consequently, the appeal was dismissed, and the original sentence was upheld. The court's decision underscored the importance of a balanced approach to sentencing, taking into account both the gravity of the offence and the personal circumstances of the offender, while also exercising caution in altering sentences where the offender is close to release.

Orders