R v Damien Charles Bugmy - [2011] NSWSC 357

Supreme Court

New South Wales

Medium Neutral Citation: R v Damien Charles Bugmy [2011] NSWSC 357
Hearing dates: 6 April 2011
Decision date: 07 April 2011
Jurisdiction: Common Law - Criminal
Before: McCallum J
Decision:
Offender convicted and sentenced to a term of imprisonment with a non-parole period of five years and six months commencing on 14 June 2008 and expiring on 13 December 2013 and a balance of term of two years and nine months expiring on 13 September 2016.

Catchwords: CRIME - sentence - manslaughter based on dangerous and unlawful act - plea of guilty - lengthy record of prior convictions - intellectual disability - Fernando principles
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Mental Health (Forensic Provisions) Act 1990
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Callaghan v R (2006) NSWCCA 58
DPP (Cth) v De La Rosa [2010] NSWCCA 194
R v Ah-See [2004] NSWCCA 202
R v Coleman (1990) 47 A Crim R
R v Fernando [2002] NSWCCA 28
R v Newman [2004] NSW CCA 102
R v Thawer [2009] NSWCCA 158
Veen v R (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Sentence
Parties: Crown
Damien Charles Bugmy
Representation: Counsel:
Mr B Barnett SC (for the Crown)
Ms J Manuell SC (for the offender)
Solicitors:
Office of Director of Public Prosecution (Crown)
Legal Aid (for the offender)

File Number(s): 2009/005918

Judgment

HER HONOUR : Anita Rose Williams died on 14 June 2008 after she was stabbed in the back by Damien Bugmy, her defacto partner of some four months. He stands to be sentenced for the offence of manslaughter in respect of her death.

Mr Bugmy was initially charged with murder. On 4 February 2011 he pleaded not guilty to that offence but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment on the basis that Ms Williams' death was the result of a dangerous and unlawful act committed by Mr Bugmy. The Court is asked to sentence him on that basis.

The maximum penalty prescribed for the offence of manslaughter is imprisonment for twenty-five years. No standard non-parole period is prescribed for that offence under the Crimes (Sentencing Procedure) Act 1999.

The timing of the plea must be considered in the context of Mr Bugmy's mental state upon and following his arrest. He was arrested on the day on which the offence was committed, 14 June 2008. Although he is Aboriginal, and was initially represented in court by the Aboriginal Legal Service, that service was unable to provide ongoing legal services to Mr Bugmy owing to a perceived conflict of interest arising from the fact that the deceased was also Aboriginal. There was, accordingly, a period described by the Crown as "marching on the spot".

Shortly after Mr Bugmy's present solicitor commenced to act, she developed concerns, which transpired to be well-founded, as to Mr Bugmy's fitness to be tried. That issue was determined by Hidden J pursuant to s 11 of the Mental…

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 Damien Charles Bugmy

Details

AGLC: R v Damien Charles Bugmy [2011] NSWSC 357
Case: [2011] NSWSC 357
Decision Date: 07 April 2011

CaseChat Overview and Summary

In the case of R v Damien Charles Bugmy, the accused was convicted of manslaughter by an act that was both dangerous and unlawful. The court had to determine an appropriate sentence for Bugmy, who had entered a guilty plea. Bugmy had a substantial history of criminal activity and was also found to have an intellectual disability. The court was required to consider these factors, as well as the principles established in the case of Fernando v The Queen, in determining the appropriate sentence.

The primary legal issue for the court was how to balance the need for punishment and deterrence with the need to consider Bugmy's intellectual disability and extensive criminal history. The court needed to determine whether the sentencing framework under the Crimes (Sentencing Procedure) Act 1999 provided sufficient flexibility to account for these mitigating factors while still achieving the aims of sentencing. The court also had to consider the principles set out in Fernando, which require that intellectual disability be taken into account in the sentencing process, potentially leading to a lesser penalty.

The court, in its reasoning, recognised that Bugmy's intellectual disability meant that he had a diminished capacity to understand and control his behaviour. This was a significant mitigating factor. However, the court also considered the gravity of the offence, the need for general deterrence, and Bugmy's lengthy criminal record, which indicated a failure to reform. Ultimately, the court found that while Bugmy's disability warranted a lesser penalty, the dangerous and unlawful nature of his act necessitated a custodial sentence. The court imposed a sentence that balanced these considerations, recognising the need for punishment and deterrence, while also taking into account Bugmy's intellectual disability.

The court ordered that Bugmy be sentenced to a term of imprisonment, with specific consideration given to his intellectual disability and the need for appropriate support and rehabilitation during his incarceration. This decision highlights the importance of the Fernando principles in ensuring that individuals with intellectual disabilities receive fair and just treatment within the criminal justice system.

Orders