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Court of Criminal Appeal 18 October 2012

R v BUGMY

[2012] NSWCCA 223

Assault & violence
CRIMINAL LAW SENTENCE APPEAL NEED TO RE SENTENCE SENTENCE SHOULD BE INCREASED.

Citation: R v Bugmy [2012] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 18 October 2012
Judges: Hoeben JA; Johnson J; Schmidt J

Background

The respondent was an inmate at Broken Hill Correctional Centre who, on 8 January 2011, threw pool balls at correctional officers after a dispute over visiting hours. One ball struck Senior Correctional Officer Gould in the left eye, causing retinal detachment, orbital fractures, permanent loss of sight in that eye, post-traumatic stress disorder, and the end of his career. The respondent had also thrown pool balls at two other officers, who were not struck.

The respondent pleaded guilty to causing grievous bodily harm with intent (carrying a maximum of 25 years and a standard non-parole period of seven years), and two counts of assaulting a correctional services officer in the execution of duty. The District Court sentenced him to a total effective non-parole period of four years and three months.

The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, arguing the sentence was infected by multiple errors and was manifestly inadequate.

  • Whether the sentencing judge correctly assessed the objective seriousness of the offence, including by taking adequate account of the victim's role as a correctional officer
  • Whether the sentencing judge erred in his treatment of the respondent's mental illness as a mitigating factor
  • Whether the respondent's background of social deprivation (often described by reference to the principles in R v Fernando) remained a legitimate sentencing consideration, and to what extent it could reduce the weight given to general deterrence
  • Whether the total sentence imposed was manifestly inadequate

Decision

On the first ground, Hoeben JA found that the sentencing judge had failed to give adequate weight to the statutory aggravating factor that the victim was a correctional officer performing his duties. The judge had identified this as an aggravating circumstance but did not sufficiently reflect it when assessing overall objective seriousness. This constituted error.

On the second ground, Hoeben JA found error in the sentencing judge's treatment of the respondent's mental illness. Although mental illness can be relevant to reduce the weight given to general deterrence, the sentencing judge had applied it too broadly as a mitigating factor without sufficient basis on the evidence.

On the Fernando question, Hoeben JA accepted that principles relating to an offender's background of social deprivation remained applicable, and that the sentencing judge had not erred in taking them into account. However, the reduction in the weight of general deterrence that could flow from those principles was characterised as modest in the circumstances of this case. The Court did not need to resolve the manifestly inadequate ground separately, given the errors already identified required resentencing.

The Court resentenced the respondent on count 3, increasing the non-parole period from four years to five years, with a balance of term of two years and six months.

Orders Made

  • Crown appeal allowed
  • Sentence on counts 1 and 2 confirmed
  • Sentence on count 3 quashed
  • Respondent resentenced on count 3 to a non-parole period of five years commencing 8 April 2011 and expiring 7 April 2016, with a balance of term of two years and six months expiring 7 October 2018

Key Takeaways

  • Identifying a statutory aggravating factor (here, that the victim was a correctional officer) is not sufficient if the sentencing process does not meaningfully reflect that factor when assessing objective seriousness. Nominal acknowledgment without practical weight constitutes error.
  • The Court of Criminal Appeal confirmed that Fernando principles, which recognise how backgrounds of social deprivation may affect the weight given to general deterrence, remain available in the sentencing of Aboriginal offenders, but the reduction in deterrence they permit is context-dependent and may be modest.
  • Mental illness may reduce the emphasis placed on general deterrence, but the extent of that reduction must be proportionate to the evidence establishing the illness and its relevance to the offending.
  • Where a Crown appeal identifies sentencing errors of sufficient weight, the Court of Criminal Appeal will proceed to resentence rather than merely quash the sentence, and it may impose a more severe sentence under section 5D(1) of the Criminal Appeal Act 1912.
  • An offence under section 33(1)(b) of the Crimes Act 1900 (causing grievous bodily harm with intent) is a result offence, meaning the seriousness of the harm caused is central to the objective gravity assessment, though it is not the only relevant factor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 60A(1)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(a), 21A(2)(c), 21A(2)(d), 21A(2)(g)

Cases:
- R v Fernando (1992) 76 A Crim R 58
- Ciaron McCullough v R [2009] NSWCCA 94
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v McNaughton [2006] NSWCCA 55; 66 NSWLR 48
- R v Engert (1995) 84 A Crim R 67
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Beldon v R [2012] NSWCCA 194
- Kennedy v R [2010] NSWCCA 260
- Butters v R [2010] NSWCCA 1
- R v Hemsley [2004] NSWCCA 228
- R v Ah-See [2004] NSWCCA 202
- Peter Schneidas (No 1) (1980) 4 A Crim R 96
- Regina v Davis (NSW CCA, unreported, 4 February 1994)
- Regina v Fernando [2002] NSWCCA 28