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Supreme Court 7 April 2011

R v Damien Charles Bugmy

[2011] NSWSC 357

HomicideDomestic & family violence
CRIME SENTENCE PLEA OF GUILTY LENGTHY RECORD OF PRIOR CONVICTIONS INTELLECTUAL DISABILITY FERNANDO PRINCIPLES

Citation: R v Damien Charles Bugmy [2011] NSWSC 357
Court: Supreme Court of New South Wales
Date: 7 April 2011
Judge(s): McCallum J

Background

The offender was charged with murdering his de facto partner of four months, who died on 14 June 2008 after being stabbed in the back at their home in Ivanhoe, a small township in outback New South Wales. The offender had been drinking heavily throughout the day of the offence. Upon his arrest, he made immediate admissions, telling police: "She is dead. I can't believe I killed her."

The Crown originally charged the offender with murder but accepted a plea of guilty to manslaughter on the basis that the death resulted from a dangerous and unlawful act. The offender had a lengthy criminal record, including a prior conviction for malicious wounding of a different de facto partner, and was on parole at the time of this offence with a condition requiring total abstinence from alcohol.

The sentencing was complicated by the offender's intellectual disability and his fitness to be tried. He was found unfit to be tried in November 2008, remained so for over two years, and was only found fit in December 2010. The plea was entered promptly upon that finding.

  • Whether the guilty plea should be treated as having been entered at the first reasonable opportunity, thereby attracting the maximum utilitarian discount, given the period of unfitness to be tried
  • How to apply the Fernando principles, which require courts sentencing Aboriginal offenders to consider the role that social disadvantage and alcohol abuse may have played in the offending
  • The weight to be given to the offender's intellectual disability as a mitigating factor in assessing moral culpability
  • How to treat the period during which the offender was serving the balance of an earlier parole term while in custody, and whether the sentence should be backdated to the date of arrest
  • How to balance the principles of deterrence, denunciation, protection of the community, and rehabilitation, given the offender's significant personal circumstances

Decision

Plea discount: McCallum J accepted the Crown's submission that the plea should be treated as having been entered at the first reasonable opportunity. The delay arose from the offender's unfitness to be tried, a circumstance beyond his control, and from a period of difficulty in securing ongoing legal representation. The judge applied a 25 per cent reduction to reflect the utilitarian value of the plea.

Fernando principles and intellectual disability: The judge applied the principles in R v Fernando, which acknowledge that where an Aboriginal offender's background of disadvantage and abuse of alcohol are causally connected to the offending, these factors are relevant to the assessment of moral culpability. The offender had been assessed as having an intellectual disability, including cognitive deficits affecting impulse control and social judgment. McCallum J found that these factors, while not excusing the conduct, significantly reduced the offender's moral culpability. The offending occurred in a context of profound disadvantage, limited support structures, and an entrenched pattern of alcohol dependency.

Aggravating factors: The judge identified the offender's extensive prior record, including prior violence against a domestic partner, as an aggravating circumstance. The victim had been threatened with a knife by the offender ten days before her death, and an apprehended violence order had been obtained and served. The judge noted that the authorities had done everything reasonably available to them in the circumstances.

Backdating and totality: McCallum J declined to treat the period the offender spent in custody serving the balance of parole as purely the product of his own choice, finding that characterisation failed to account adequately for the cognitive disabilities affecting his conduct during that period. Applying principles of totality, the judge directed that the sentence commence on the date of arrest. The resulting sentence was designed to denounce the conduct and ensure adequate punishment, while setting a release date sufficiently proximate to avoid crushing the offender's prospects of rehabilitation.

Orders Made

  • The offender was convicted of the manslaughter of Anita Rose Williams.
  • Sentenced to a term of imprisonment comprising a non-parole period of five years and six months, commencing 14 June 2008 and expiring 13 December 2013, with a balance of term of two years and nine months expiring 13 September 2016.
  • First eligible for release to parole: 13 December 2013.

Key Takeaways

  • The Fernando principles operate to reduce an Aboriginal offender's moral culpability where social disadvantage and entrenched alcohol dependency are causally connected to the offending, even where the offence results in death.
  • A guilty plea entered at the first available opportunity following a finding of fitness to be tried may attract the full utilitarian discount, where the delay in entering the plea was attributable to mental incapacity rather than tactical choice.
  • Intellectual disability, including deficits in impulse control and social reasoning, is a mitigating factor going to moral culpability and is relevant to the weight given to general deterrence in sentencing.
  • Characterising a period in custody as resulting from the offender's own "choice" to breach parole may be inadequate where cognitive disability substantially limits the offender's capacity for volitional decision-making.
  • Sentencing courts must balance denunciation and protection of the community against the need to preserve realistic prospects of rehabilitation, particularly where crushing an offender's hope of release would be counterproductive to community interests.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 47
- Mental Health (Forensic Provisions) Act 1990 (NSW), including s 11

Cases:
- R v Fernando [2002] NSWCCA 28
- Veen v R (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- 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 Newman [2004] NSWCCA 102
- R v Thawer [2009] NSWCCA 158