Regina v NMB; Regina v Bugmy

[2005] NSWSC 561

CITATION:	Regina v NMB; Regina v Bugmy [2005] NSWSC 561
HEARING DATE(S):	21/03/05; 23/03/05; 13/05/05
JUDGMENT DATE :	10 June 2005
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	See pars 50 and 51

CATCHWORDS:	SENTENCE - PLEAS OF GUILTY TO MANSLAUGHTER ACCEPTED IN SATISFACTION OF INDICTMENT FOR MURDER - OFFENDERS AGED 20 AND 15 - DISADVANTAGED ABORIGINAL BACKGROUND
PARTIES:	Regina v NMB; Regina v Warwick James Bugmy
FILE NUMBER(S):	SC 2004/70024; 2004/70039
COUNSEL:	W. Creasy (Crown) T. Golding (NMB) R. Button (Warwick Bugmy)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Western Aboriginal Legal Services (NMB) Legal Aid Commission (Warwick Bugmy)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Friday 10 June 2005

2004/70024 - REGINA v NMB
2004/70039 - REGINA v WARWICK JAMES BUGMY

SENTENCE

1 HIS HONOUR: Each of the prisoners has pleaded guilty and been convicted of the manslaughter of Ricky Smith, who died at Royal Adelaide Hospital on 12 September 2003 as a result of injuries inflicted by them on the night of Thursday 4 September. NMB seeks that I take into account on sentence an offence of larceny of a wallet, the property of Tamara Cattermole, committed on 4 September 2003 and I will do so.

2 Warwick James Bugmy was born on 25 January 1983 and therefore was aged twenty at the date of offence. NMB was born on 25 August 1988 and had turned fifteen years of age only days before the commission of the offence. He is, of course, still a juvenile and for that reason these proceedings have been heard in a closed court. It would have been inconvenient and undesirable to deal with Warwick Bugmy separately. As well as being co-offenders, they are cousins and the requisite steps in relation to non-publication of identity will be taken.

3 It is not possible to recount all the details of the killing with clarity and precision, much has been obscured in memories drawn from within an alcoholic haze. It is, however, necessary for me to make findings of fact, proved to the necessary standard, for the purpose of sentence and I turn so to do.

4 The victim was a thirty one year old aboriginal man who had been in a relationship for about fifteen months with Edith Williams, an aunt of the prisoners. Mr Smith and Ms Williams lived with others in premises at 107 Creedon Street, Broken Hill.

5 103 Creedon Street was the home of Mr Derek Dennis, his partner, Ms Tessa Bugmy and their children. On 4 September they were having what Mr Dennis called “a party” there. From about 7 am participants, including Mr Smith and Ms Williams, were at the premises consuming liquor. At about 9 am the prisoners arrived, having been conveyed there by Warwick Bugmy’s mother. Warwick Bugmy is Tessa Bugmy’s cousin. NMB is Derek Dennis’ nephew. During the day numerous other people arrived and joined in “the partying”.

6 After lunch at about 12.30 pm, seven men (including both prisoners) were in the bedroom of the house, most of them playing darts. Warwick Bugmy was a darts player of some fame. Ricky Smith was lying on a bed. For a reason or reasons which remain unknown Warwick Bugmy told him to get out of the house or he would “flog” him. Mr Smith responded that he did not wish to fight. Warwick Bugmy turned his apparent aggression towards another man (Warren Barlow) and they became engaged in a physical struggle, one aspect of which was that Mr Barlow was pushed through a window. Some of the men left the room and proceeded to the front yard and continued drinking. In the yard Warwick Bugmy resumed arguing with Mr Smith but Mr Dennis introduced some calm, more liquor was purchased and consumption of it continued. In the late afternoon people began to drift away from the gathering. A group consisting of Ricky Smith, Edith Williams and three other women left and they were followed shortly afterwards by another group consisting of the two prisoners and three other males.

7 I am unable to determine the times of these departures or the interim movements of the prisoners until the critical events at 107 Creedon Street later that night. I am conscious of versions by the prisoners in their respective interviews with police, but I do not regard them as dependable as a chronology of events up to the time of the killing.

8 Andrea Bourke, then aged sixteen, was staying with relations at 109 Creedon Street. She heard yelling and shouting which caused her to rise from where she was sleeping and she noticed on the clock that it was 10.50 pm. She looked through a window to 107 Creedon Street and saw two men kicking “something” on the ground. I am satisfied that the object of the kicking which she saw was Ricky Smith. I accept that she recognized one of the persons doing the kicking as NMB. Her description of the second attacker whom she saw does not fit Warwick Bugmy. Although this is acknowledged, Ms Bourke is but one source of evidence. I am conscious of assertions of involvement of a third person but this is not germane to the findings that I make as to the involvement of the prisoners nor the acknowledgement in the pleas that the prisoner’s acts were causative of death.

9 I am satisfied that both of the prisoners participated in administering a beating to Mr Smith which led to his death.

10 Warwick Bugmy made significant admissions when interviewed by police on 5 September 2003. The interview video has been shown and transcript references can be made to numbered questions and answers. He claimed to have come upon Ricky Smith swearing at Aunty Edith (Ms Williams) in apparent consequence of which he said another man had reacted by kicking him. Warwick Bugmy joined in and “kicked him in the guts” (Q132) “about three or four times” (Q140). He nominated this other man as Leslie Sullivan (referred to by witnesses from time to time as “Bludger”). Warwick Bugmy described NMB as joining in the kicking but conceded that he himself was “the first one to kick him out of me and NMB” (Q263). Later he expanded upon his admissions to acknowledge that he “kicked him once in the head” and “about four or five times in the guts” (Q327).

11 I advert to this interview material insofar as it is inculpating of Warwick Bugmy himself.

12 NMB was interviewed by police in the presence of his mother also on 5 September 2003. The video recording has also been viewed. Initially he told police that Warwick Bugmy and Ricky Smith engaged in a row and Warwick “punched” him and he was laying there and “that’s when Warwick knocked him out, you know, booting him, knocked him out”. He then described Warwick as grabbing “iron” from an old car and “hitting Uncle Rick with it there” (Q39). When police put questions to him about his involvement he denied kicking the victim (e.g. Q220) and maintained his denial even when asked about possible explanation for blood on his shoes (Q297). However, when the interviewing officers said they were totally confused and asked him to tell what really happened, he conceded that he had applied “one little kick” (Q363) “just in the chest” (Q365). Asked if he kicked him in the head, he replied “sort of, sort of” (Q366), but qualified this to describe it as “just a little tap” (Q368).

13 The extent of NMB’s participation was somewhat more dramatically revealed in a telephone conversation which he had with a friend on 18 May 2004 whilst detained at Reiby Detention Centre. In this extract of the transcript of that conversation the prisoner is Voice 1 (V1).

14 V1: I go to Court next year, boy.

V2: Next year, you?
V1: Yeah, I’ll be in here for another year.
V2: You gonna get out or what, you cunt?
V1: Nah, nah, Fuck that, I won’t get out.
V2: What for, what you done you little cunt, huh?
V1: Nah, jumped on his head.
V2: Huh?
V1: Jumped on his head.
V2: Bad cunt, Nick.
V1: Yeah, I was drunk, you know silly cunt, you know. Just fucken drunk, yeah my brother, yeah.

15 I am satisfied that the prisoner NMB is here referring to his participation in the attack on Mr Smith, and that he was, contrary to the essentially self serving statements made to police, engaged in the assault on Mr Smith by kicking as demonstrated by the evidence of Ms Bourke and the content of this conversation.

16 Whilst the conviction of manslaughter in respect of both prisoners excludes any attribution to them of intent to cause death or grievous bodily harm, it is relevant to consider the level of violence that was in fact meted out. Some gauge is offered by the injuries received by the victim. Death was actually caused by blunt head trauma with intra cranial haemorrhage and hypoxic brain damage, but frank injuries included fractures of the mandible, right maxilla and nasal bones, lacerations of the lips and bruising to the arm, flank and chest. I am satisfied that a high level of violence was implemented by both prisoners, particularly to the head of the victim.

17 I am unable to determine which of them made the first strike upon the victim although I have noted what one of them told police. To the extent that submission was made that joining in an attack already instituted by another was a matter of lesser culpability than being the initial attacker, (propounded as a matter of mitigation), I cannot make the relevant distinction on the evidence even if for this purpose I were to apply in favour of either of them the lower standard of proof of a matter in mitigation.

18 Neither am I persuaded that the offender’s actions were in this case mitigated by alleged provocation by the victim making insulting remarks to or about Ms Williams.

19 Whilst I cannot, of course, say what damage was caused by which blow struck by which offender, I am satisfied that each of them joined in kicking Mr Smith, bringing about his death.

20 I acknowledge receipt of the content of the Victim Impact Statement signed by three members of Mr Smith’s family, a moving reading of which by Mr Edward Smith took place at the hearing in Broken Hill on 23 March last. It can readily be understood that this senseless killing caused shock and heartache to Mr Smith’s family and whilst I appreciate that it is beyond the capacity of the court to assuage the grief, I should and do comment in these formal circumstances that their loss is recognized and that sympathy and condolences on behalf of the whole community should hereby be recorded.

21 The larceny which NMB has asked be taken into account involved taking Tamara Cattermole’s wallet for an asserted purpose of obtaining money for a taxi. The amount taken was said by him to have been “only a bit of silver” and some illicit drug (Q241).

22 I should make reference to some specific submissions by counsel. On behalf of NMB it was submitted that I should find that he was not the instigator of violence on the deceased. Certainly he was not involved in the exchange at Mr Dennis’ home above described, and whilst I do not find that he was the instigator of violence, I am not satisfied of the contrary even as a matter of probability. As above stated, I am satisfied that he joined in the fatal attack particularly, and quoting him, by “jumping” on the head of the deceased. I do not accept that the tone of voice used by the prisoner in the intercepted telephone call (which was played during the sentencing proceedings) revealed any manifestation of remorse.

23 By reference to the letters in subsections of s 21A(3) of the applicable statute, counsel submitted that I should find matters in mitigation. As the primary person towards whom these remarks are focussed is the prisoner, I will deal with those submissions in their express terms, rather than by incanting to the statutory subsections. I find the offence was not part of organized or planned criminal activity; I reject the assertion that the victim provoked the prisoner; although obviously the prisoner is and was a minor, his prior record is not insignificant; I cannot assess the degree of likelihood of the prisoner re-offending but I will later make express reference to encouraging signs of steps taken towards rehabilitation; indications of remorse are moderate and I consider these are associated with the steps just mentioned. I accept that the prisoner was not fully aware of the consequences of his actions by reason of the combination of his immature years and his considerable ingestion of liquor and illicit substances during the “bender” (as his mother described it) which he had engaged in over a period of days before the killing.

24 I cannot refrain from expressing my astonishment at the evidence of NMB’s mother that she gave him money to buy alcohol to celebrate his fifteenth birthday and that on his birthday she saw him, without apparent remonstration by her, drinking beer, moselle and tequila. In assessing his culpability, obvious lack of parental guidance is a matter which I would take into account in his favour, particularly having regard to the necessity to apply particular principles concerning the sentencing of juveniles.

25 I turn to some express submissions by counsel for Warwick Bugmy. I accept that the prisoner’s liability for manslaughter is founded upon unlawful and dangerous acts and that the extent of his admissions to police involved kicks to the victim’s body and head as above described. I do not accept that there was provocation of the prisoner by the victim. Manifestations of ill feeling towards him by the prisoner earlier in the day were subjective in origin and I cannot determine any reason for them.

26 It was submitted that the attack was one of “drunken stupidity and aggression” and that is a fair description. That is not to say that, and this applies to both offenders, that they did not have an appreciation of wrongdoing. The evidence of Mr Holszberger is instructive in this regard. He was a taxi driver called to pick up the prisoners from 107 Creedon Street shortly after 11 pm on 4 September. He recognized Warwick Bugmy from publicity concerning his championships in darts competitions. Whilst the taxi was in Rakow Street it passed a marked police car which was moving with lights and siren activated. Both prisoners slouched down in their seats and turned their heads away from the window. Warwick Bugmy later threatened the driver if he said “anything to the cops”.

27 I agree with counsel’s concession that this incident had a “nasty flavour” but its significance, I find, is that it forecloses any suggestion that the offenders by reason of the prior ingestion of liquor or any other deleterious substance were not conscious of their wrongdoing.

28 NMB was but fifteen years of age when the crime was committed. He was, as his counsel acknowledged, on conditional liberty at the time. His prior record is such as could justify the withholding of leniency, however, pointing as it were in the opposite direction, is my obligation to have regard to principles enshrined by statute specifying, inter alia, that guidance and assistance are necessary because of a juvenile offender’s state of dependence and immaturity.

29 I also have regard to the enormous disadvantages in this offender’s background. It is not for me to criticize others for deficiencies in his upbringing but I note that his mother told the Juvenile Justice officer that she feels responsible for his current circumstances. He was born into a relationship marred by domestic violence and alcohol abuse. He and one sister share a common father who has only had intermittent contact with them.

30 The apparently dysfunctional relationships of his mother led to expectations that NMB should assume adult responsibilities well before his years justified it. He was clearly not able to cope with this. He truanted from school and, when he did attend, his behaviour led to frequent suspension. He did not learn to read or write.

31 Enquiry, principally of his mother, revealed that he commenced sniffing petrol and fly spray at the about the age of seven. An unidentified source told Mrs B that cannabis was less damaging than petrol sniffing and she began to supply him with this drug from when he was aged about eleven. He himself told the officer that from the age of twelve, his cigarette and cannabis smoking, as well as alcohol consumption had escalated to almost daily use.

32 Community service records about him highlighted concerns about high risk of harm or injury in relation to inadequate supervision, drug abuse and neglect. The prisoner’s background fulfils the criteria for special consideration on account of his disadvantaged aboriginal background.

33 Before the offence the few “bright spots” seemed to include a demonstration of some talent with the Thankakali Aboriginal Dance Group and some rehabilitative effort at a farm in South Australia. Unfortunately the stay in South Australia was followed by return to Broken Hill and former “bad habits”. Since the offence NMB has been seen by a psychologist Ms Robillard and I note the content of her report. Not all the information given to her was reliable, for example, that drinking alcohol was a “relatively recent matter”.

34 The most promising evidence is found in the testimony of Father Granc and Ms Bromley, the Chaplain and Assistant Chaplain at Reiby Detention Centre. Ms Bromley opined that through counselling NMB has become a strong, mature and thoughtful boy. She thought he was one of only a handful of boys whom she has seen come in and out of Reiby who she sensed as showing true remorse. He has learned to read, and, as his mother commented, is proud of this achievement. He is focussing upon what he might do in the future. Whilst I do not discourage dreams of footballing fame, his stated object of rural employment corroborates the views about his gaining maturity and realistic insights.

35 This was a serious case of the felonious taking of innocent life by significant violence and that seriousness can only be tempered to a degree by subjective circumstances. The offence having occurred after 1 February 2003, I am required by statute to first set a non parole period. I find there are special circumstances within the meaning of that legislation justifying a departure in favour of the offender from the proportion between non parole period and balance term as prescribed. In particular I am persuaded that it is necessary for this young person to have every assistance in maintaining the progress he has made thus far whilst in custody and continuing, as he reintegrates into the community. As indicated at the hearing I will make an appropriate order concerning his service of custody in a detention centre.

36 I have reduced the term I would otherwise have assessed by 25 percent to recognize the offer of plea of guilty as soon as it was available. My consequential assessment is a term consisting of a non parole period of four years with a balance term of a further two years.

37 Warwick Bugmy is an aboriginal man, second in a family of three children. His older sister is handicapped and he spent much of his childhood helping to care for her. In his early years his father was an abuser of alcohol and violent towards his mother, but this situation ceased and the prisoner formed a close bond with his father who died whilst he was in custody awaiting trial for this offence. He has had apparent difficulty in coping with this loss.

38 He has been in a de facto relationship for some years and has a four year old daughter. His wife visits him and offers continuing support.

39 A pre sentence report describes a minimal criminal history but it needs to be noted that on 10 March 2003, that is about six months before the current offence, he was placed on a bond to be of good behaviour for two years following conviction on two counts of assault occasioning actual bodily harm in company at Broken Hill Local Court.

40 Warwick Bugmy has told the probation officer that he does not know what provoked the attack and he claims to have had a friendship with the victim. He also said that he cannot recall the detail of the offence and that he had “blacked out” and did not realize what he had done until the next day. I do not accept this assertion and I refer to my findings concerning the significance of the incident with Mr Holzberger in the taxi cab.

41 However, for reasons given which I need not recite, the officer concluded that the prisoner appeared genuinely motivated to address his offending behaviour and was seeking to participate actively in appropriate programmes. This conclusion has been confirmed by the production of several certificates demonstrating Warwick Bugmy’s achievements in vocational and educational training which he has undertaken whilst in custody. He was, of course, considerably older than his co-offender cousin but, that acknowledged, he was himself at aged twenty lacking in a degree of maturity.

42 Although not to the extent of his co-offender, it is also appropriate to take into account as a matter of mitigation the considerable disadvantages which the offender encountered by reason of his aboriginal background although it must be said that until the current offence and the matter dealt with in March 2003, the prisoner had shown every indication of having risen above those disadvantages. That he was able so to do and the achievements mentioned give some promise that he will successfully achieve rehabilitation.

43 Warwick Bugmy was examined by a psychologist Mr Ashkar. He established by testing that Warwick’s intellectual functioning is statistically better than 47% of the community. Other testing showed generally normal results and did not indicate antisocial personality or pathology. Mr Ashkar opined that the offence was “unplanned and opportunistic”. That would seem to be so, and as I have remarked already, I cannot determine any motive for the attack.

44 A number of references were tendered which confirm the regard and respect within the aboriginal and non aboriginal community which is accorded to the prisoner’s family, himself included. Without pausing to recite its terms I would give particular weight to the observations of his partner Ms Griffith in her letter of 20 April 2005.

45 Giving as much benefit to the prisoner as I can for appropriate measure of favourable subjective matters, it remains necessary to balance such against the seriousness of an unprovoked attack which took the life of an innocent human being. Warwick Bugmy also pleaded guilty to manslaughter as soon as it was available and I apply a discount of 25 percent to recognize that plea. I also find there are special circumstances justifying departure in the prisoner’s favour from the proportion between non parole period and balance term specified in the statute. I regard an extended term of available guidance as desirable to enable him to reintegrate into the community.

46 Balancing objective and subjective features, and making discount and allowance for the matters just mentioned, I assess a consequential sentence consisting of a non parole period of five years and a balance term of two years and six months.

47 Both prisoners have been in custody since 5 September 2003. Warwick Bugmy was bailed for a period of 16 days to attend the funeral of his father and, I expect, to comfort his mourning mother and sisters. I am unaware of the conditions of his liberty but I do not infer that he would have been unconditionally at large. I propose to consider these days as part of his pre sentence custody.

48 The Crown Prosecutor has pointed out that, whilst bail refused on the current matter, NMB was subject to a four months’ control order, hence he was not, for that period, solely in custody in connection with the killing of Mr Smith. I have taken this into account in overall assessment but do not propose to move the commencement date of sentence forward from 5 September 2003.

49 As indicated earlier, I intend to order that NMB serve his sentence in a detention centre. He will be eligible for parole some ten days after his nineteenth birthday and the total sentence will expire that number of days after his twenty first birthday. I am satisfied in terms of the statute that his degree of vulnerability and the subjective matters which I have found in his favour justify his being so held after his eighteenth birthday. I do not propose to make minor adjustments in respect of the ten days following his twenty first birthday. If he has not earned his parole by then, my assessment of his progress towards rehabilitation will be shown to have been wrong and I do not think it appropriate to adjust for such a disappointing contingency.

50 Warwick James Bugmy, for the manslaughter of Ricky Smith, you are sentenced to imprisonment consisting of a non parole period of five years commencing on 5 September 2003 and expiring on 4 September 2008 with a balance term of two years and six months commencing on 5 September 2008 and expiring on 4 March 2011. The earliest date of eligibility for parole is specified as 4 September 2008.

51 NMB, for the manslaughter of Ricky Smith, and taking into account the offence of larceny on the Form 1, you are sentenced to imprisonment consisting of a non parole period of four years commencing on 5 September 2003 and expiring on 4 September 2007 with a balance term of two years commencing on 5 September 2007 and expiring on 4 September 2009. I direct that the whole of the term of custody to the extent permitted by statute be served as a juvenile offender. The earliest date of eligibility for parole is specified as 4 September 2007.

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