R v Bunning - [2007] VSCA 205

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 338 of 2006

THE QUEEN
	v
MATHEW JAMES BUNNING

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JUDGES:	MAXWELL P, KELLAM JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2007
DATE OF JUDGMENT:	27 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 205	2^nd Revision 30 June 2008, para [54]

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Criminal law – Sentencing – Misconduct in public office – Theft – Police officer accessing LEAP and PIMS computer systems to provide information to known drug dealer – Sentencing judge not advised of agreed facts upon which pleas of guilty entered – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary & Associates

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Kellam JA. I agree with his Honour’s reasons and with the proposed re-sentencing.

KELLAM JA:

Background to the appeal

The appellant pleaded guilty at the County Court in Melbourne to ten counts of misconduct in public office, two counts of theft and one count of possession of a drug of dependence. On 23 October 2006 the appellant was sentenced to a total effective sentence of six years and ten months’ imprisonment with a minimum of three years’ imprisonment to be served before becoming eligible for parole. The appellant brings this appeal on a number of grounds.

It is not necessary to deal with all of the grounds of appeal as the prosecution concedes that an error which vitiates the exercise of the sentencing discretion has occurred. It is appropriate to refer briefly, however, to a number of the grounds of appeal and to the nature of the error which occurred in this case. Ground 2 of the appeal is that the sentencing judge erred by having regard to unproven allegations which went beyond the circumstances of the offences to which the appellant had pleaded guilty and beyond the agreed statement of facts tendered by the Crown prosecutor. Ground 3 of the appeal is that in the alternative to ground 2, the sentencing judge erred by treating as aggravating matters facts that were not established beyond reasonable doubt. Ground 4 is that in the alternative to ground 2, the sentencing judge erred by denying the appellant procedural fairness. The gravamen of the appellant’s complaint reflected in these grounds is that the judge made findings of fact against the appellant which findings formed the basis for the sentences imposed, and did so by trespassing impermissibly into factual areas beyond the boundaries created by an agreed statement of facts. The prosecution concedes that that complaint is justified.

The circumstances under which the error occurred are as follows. Prior to the hearing of the plea the sentencing judge was provided with the depositions and other materials which contained three statements made by a police informer, who has been referred to as ‘L’ throughout the proceedings. In…

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 Bunning

Details

AGLC: R v Bunning [2007] VSCA 205
Case: [2007] VSCA 205
Decision Date: 27 September 2007

CaseChat Overview and Summary

The case of R v Bunning involves the appellant, a former police officer, who pleaded guilty to charges of misconduct in public office, theft, and accessing computer systems without authority. The appellant used his access to the LEAP and PIMS computer systems to provide information to a known drug dealer, resulting in the theft of confidential information. The appellant was sentenced in the County Court of Victoria, but he appealed the severity of his sentence to the Court of Appeal.

The primary legal issues the Court of Appeal needed to address were whether the sentencing judge was adequately informed of the agreed facts underpinning the appellant's pleas of guilty, and whether this omission led to an unjust outcome. The appellant argued that the lack of knowledge about these agreed facts resulted in an overestimation of the seriousness of his offending, leading to an excessively harsh sentence.

The Court of Appeal found that the sentencing judge was not adequately informed of the agreed facts. The court emphasised that such information is critical for an accurate assessment of the offender's culpability and the gravity of the offence. Given the absence of these facts, the sentence was considered disproportionate. Consequently, the appeal was allowed, and the appellant was re-sentenced with consideration of the correct factual context. This reassessment led to a reduced sentence, reflecting a more accurate understanding of the appellant's role and the specific circumstances of his offending.

Orders