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Court of Criminal Appeal 3 August 2004

R v S W Bugmy

[2004] NSWCCA 258

Assault & violencePublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE WHETHER EXCESSIVE BOND WHETHER VALID

Citation: R v S W Bugmy [2004] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 3 August 2004
Judge(s): Bryson JA, James J, Kirby J

Background

The appellant, an Aboriginal man from Wilcannia in far west New South Wales, pleaded guilty in the District Court to assault occasioning actual bodily harm and affray. The offences arose from a violent brawl at a service station cafe in Wilcannia, in which the appellant tackled the shopkeeper to the ground while two co-offenders struck and stabbed the victim. The sentencing judge specifically found the appellant did not wield a knife or a baseball bat during the incident.

Finnane DCJ sentenced the appellant to a fixed term of nine months for the affray, followed by a two-year suspended sentence for the assault, the latter suspended on the appellant entering a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999. One condition of that bond (condition 4) prohibited the appellant from entering Wilcannia for the duration of the bond, except with the sentencing judge's personal permission.

The appellant sought leave to appeal, challenging the sentences as excessive, the accumulation of the two sentences, and the validity and harshness of the bond conditions, particularly the Wilcannia exclusion.

  • Whether the individual sentences for assault occasioning actual bodily harm and affray were manifestly excessive
  • Whether the sentencing judge erred in fully accumulating the two sentences rather than ordering partial concurrency
  • Whether the conditions of the s 12 bond were unduly onerous overall
  • Whether condition 4, prohibiting entry to Wilcannia except with the judge's permission, was a valid and lawful condition of the bond

Decision

The Court of Criminal Appeal granted leave to appeal but upheld the sentences and their accumulation, finding no error in the sentencing judge's exercise of discretion on those grounds. The Court confirmed that the sentencing judge had appropriately taken into account the principles from R v Fernando regarding the relevance of Aboriginal background, social deprivation, and the role of alcohol in the offending.

On the central issue, the Court allowed the appeal in respect of condition 4 only. Kirby J, with whom Bryson JA and James J agreed, applied a three-part test for the validity of bond conditions: a condition must be reasonably related to the offence or the purposes of punishment, it must not exceed the sentencing court's jurisdiction, and it must not be unduly harsh or unreasonable.

The exclusion condition failed the third part of that test. Wilcannia is an isolated town, and the appellant's family and extended family lived there. Excluding the appellant from Wilcannia for almost two years effectively severed his physical connection to his family, which the Court regarded as a step beyond what legitimate sentencing purposes could justify. The Court observed that even prisoners retain access to family visits, and that a shorter exclusion period of perhaps six months might have been defensible as a means of providing respite from the appellant's alcohol environment. A two-year exclusion, however, amounted to an attempt at a general reform of character rather than a proportionate sentencing measure, and was therefore unduly harsh and unreasonable.

The exception built into condition 4, allowing the appellant to seek the judge's personal permission to return, did not cure the problem. Even if properly administered, the Court found the exception insufficient to remedy the fundamental harshness of a near two-year exclusion from the appellant's home and family.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in respect of condition 4 of the bond, which was quashed
  • The sentence imposed by Finnane DCJ on 21 February 2003 otherwise confirmed

Key Takeaways

  • A condition of a suspended sentence bond must satisfy three requirements: it must be reasonably related to the offence or the purposes of punishment, it must fall within the sentencing court's jurisdiction, and it must not be unduly harsh or unreasonable.
  • Excluding an offender from their home town for two years, where family and extended family reside, was held to be unduly harsh and unreasonable in the circumstances, even where the exclusion was intended to address an entrenched alcohol problem.
  • A shorter exclusion from a problematic environment (the Court suggested approximately six months as a possible benchmark) may have been supportable, but the length of the restriction was critical to the finding of invalidity.
  • Building in a permission-based exception to an otherwise harsh condition does not automatically render that condition valid; the underlying harshness of the restriction must itself be assessed.
  • Sentencing courts dealing with Aboriginal offenders are required to take into account the principles in R v Fernando (1992) 76 A Crim R 58, including the relevance of background deprivation, alcohol dependency, and community context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 35(a), 59, 93C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- R v Fernando (1992) 76 A Crim R 58
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Shankley [2003] NSWCCA 253
- Gamgee (2001) 124 A Crim R 469
- R v Hammoud (2000) 118 A Crim R 66
- Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
- Macpherson v Beath (1975) 12 SASR 174
- Williams v Marsh (1985) 38 SASR 313
- R v Harvey (1989) 40 A Crim R 102
- R v Sanerive (CCA (Vic), unreported, 23 June 1995)
- Lapa (No 2) (1995) 80 A Crim R 398
- Miroslav Jovanovic (1999) 106 A Crim R 548