REGINA v Bulling - [1999] NSWCCA 429

CITATION: REGINA v BULLING [1999] NSWCCA 429 revised - 27/06/2000

FILE NUMBER(S): CCA 60468/99

HEARING DATE(S): 29 October 1999

JUDGMENT DATE:
29 October 1999

PARTIES :

REGINA v Steven Shane BULLING

JUDGMENT OF: Simpson J at 1; Kirby J at 22

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/71/0098

LOWER COURT JUDICIAL OFFICER: Cantrill Acting DCJ

COUNSEL: P BG Berman - Crown
P M Skinner - Applicant

SOLICITORS: S E O'Connor - Crown
T A Murphy - Applicant

CATCHWORDS:

DECISION: Sentence restructured.

IN THE COURT OF
CRIMINAL APPEAL

60468/98

SIMPSON J
KIRBY J

29 October 1999

REGINA v Steven Shane BULLING

Judgment

SIMPSON J:

1 The applicant, Steven Shane Bulling, seeks leave to appeal two sentences imposed on him by Acting Judge Cantrill in the District Court at Albury on 21 August 1998. The applicant had previously entered pleas of guilty to two charges of demanding money with menaces for which section 99 of the Crimes Act 1900 provides a maximum penalty of penal servitude for ten years.
2    The offences were committed in the early hours of 18 June 1998 and the evening of 20 June 1998. The applicant entered a convenience store in the BP Border Service Station in Albury and approached the console operator in such a way as to suggest that he was armed with a weapon and demanded money. On the first occasion,he was given $355; on the second he was given $155 and some cigarettes.
3    The second incident was observed by a customer in the store. The applicant was apprehended by police shortly after the second incident and initially denied his involvement in either offence. He was at that time apparently affected by alcohol. He was identified by both the service station attendants. The money and cigarettes stolen on the second occasion were recovered, but none of the money taken on the first occasion was recovered.
4    Judge Cantrill sentenced the applicant on each charge to a total term of penal servitude for four years divided conventionally into a minimum term of three years and additional terms of one year to be served concurrently. In doing so, he referred to information which plainly had been provided to him from the bar table, but which was not the subject of documentary or oral evidence.
5    Because of the way in which the matter was conducted at first instance, there is not a great deal of material before this court and it is necessary to approach the application on the scantiest of information.
6    The applicant was born on 20 May 1958. He was forty years of age at the time of the offences. He has a reasonably lengthy criminal history, which includes a number of terms of imprisonment for offences of a variety of kinds including sexual offences, offences of dishonesty and damage to property.
7    Cantrill ADCJ apparently accepted the personal history which was provided to him from the bar table. The applicant had had a hard and dysfunctional childhood…

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.

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Details

Case: [1999] NSWCCA 429
Decision Date: 29 October 1999

CaseChat Overview and Summary

The Court of Criminal Appeal was presented with an application by Steven Shane Bulling to appeal against two sentences imposed by Acting Judge Cantrill in the District Court. Bulling had pleaded guilty to two counts of demanding money with menaces, carrying a maximum penalty of ten years' penal servitude each under section 99 of the Crimes Act 1900. The offences occurred on two separate occasions in June 1998, wherein Bulling entered a convenience store in Albury and demanded money from the console operator under the threat of a weapon, successfully obtaining $355 and $155 with some cigarettes on the respective occasions. The appellant was apprehended shortly after the second incident and identified by the store attendants. The District Court sentenced Bulling to a total term of penal servitude for four years, divided into a minimum term of three years and an additional year to be served concurrently.

The central legal issue before the Court of Criminal Appeal was whether the District Court erred in failing to consider special circumstances that might have justified a departure from the sentencing ratio. Bulling's counsel argued that the District Court failed to consider that Bulling had a long-standing problem with alcohol, which was accepted by the sentencing judge. Additionally, the appellant's history, including a dysfunctional childhood and a pattern of alcohol-related offences, suggested that there were mitigating factors that should have been considered. The Court of Criminal Appeal needed to determine if the District Court was obligated to consider these special circumstances independently, despite not being explicitly raised by counsel.

The Court of Criminal Appeal found that while the District Court could rely on the assistance of counsel, there was an independent duty to ensure that all material before the court was appropriately considered. The judges noted that Bulling's history, including his voluntary surrender to police shortly before the offences and the role of alcohol, presented a puzzle that required the sentencing judge to consider special circumstances. The Court concluded that the failure to do so constituted an error. Consequently, the Court restructured the sentences, reducing the minimum term to two years and the additional term to two years, to be served consecutively.

Orders