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Court of Criminal Appeal 19 December 2014

R v Bugmy (No 2)

[2014] NSWCCA 322

Also reported as (2014) 247 A Crim R 556
Assault & violence
CRIMINAL LAW APPEAL PROSECUTION APPEAL AGAINST SENTENCE REMITTAL FROM HIGH COURT MANIFEST INADEQUACY OBJECTIVE SERIOUSNESS

Citation: R v Bugmy (No 2) [2014] NSWCCA 322
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2014
Judge(s): Bathurst CJ, Rothman J, RA Hulme J

Background

The respondent pleaded guilty in 2011 to two counts of assaulting a law enforcement officer in the execution of duty and one count of causing grievous bodily harm with intent. The offences arose from an unprovoked assault on a prison officer that had serious and lasting consequences for the victim. The sentencing judge imposed a fixed term of 8 months on the first two counts and 6 years imprisonment with a 4-year non-parole period on the third count, allowing a 25% discount for an early guilty plea.

The Crown appealed to the Court of Criminal Appeal, arguing the sentence was manifestly inadequate. The Court of Criminal Appeal allowed the appeal in 2012 and resentenced the respondent to a longer term, but the High Court then allowed the respondent's appeal from that decision. The High Court held that the Court of Criminal Appeal had erred by resentencing without first determining whether the original sentence was manifestly inadequate, and also erred in its treatment of the respondent's deprived background as a mitigating factor. The matter was remitted to the Court of Criminal Appeal to deal with the Crown's original appeal afresh.

  • Whether the original sentence imposed by the District Court was manifestly inadequate
  • If so, whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and dismiss the appeal, having regard to significant delay, the respondent's imminent eligibility for parole, and changes in the Crown's position over the course of the proceedings

Decision

On the question of manifest inadequacy, all three judges concluded that the original sentence was manifestly inadequate. The court noted that the offence was a serious, unprovoked assault with intent to cause grievous bodily harm against a law enforcement officer performing his duties, carrying a maximum penalty of 25 years and a standard non-parole period of 7 years. Although the respondent's deprived background and subjective circumstances were relevant, those factors did not bring the original sentence within an acceptable range. The court accepted, following the High Court's guidance, that evidence of social deprivation and deprived background does not diminish in weight with the passage of time or the accumulation of prior offences, but also acknowledged that such circumstances simultaneously reduce moral culpability and emphasise the need for community protection and personal deterrence.

Despite finding manifest inadequacy, the court unanimously exercised its residual discretion to dismiss the appeal without resentencing. Bathurst CJ identified several relevant considerations: significant delay throughout the proceedings (from plea in May 2011 through multiple appeal stages to the remitted hearing in late 2014), the respondent's imminent eligibility for parole in April 2015, and the fact that the High Court had already laid down the relevant sentencing principles, meaning no further guidance would be achieved by resentencing. Rothman J added that the Crown's position had shifted materially at multiple stages of the proceedings, including on the application of the Fernando principles (which address sentencing of Aboriginal offenders with deprived backgrounds), and that the sentencing judge's findings on rehabilitation and the structure of the sentence were significant factors favouring non-intervention.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • A finding of manifest inadequacy does not compel a court of criminal appeal to resentence. The residual discretion to decline intervention remains available and may be exercised where factors such as delay, imminent parole eligibility, or changes in the Crown's own position make resentencing unjust or purposeless.
  • Following the High Court's decision in Bugmy v The Queen, the weight to be given to an offender's deprived background and social disadvantage does not diminish simply because time has passed or because the offender has accumulated further convictions.
  • Where an offender's background of severe social deprivation reduces moral culpability, that same background may simultaneously strengthen the case for community protection and personal deterrence, reflecting the dual operation of the Fernando principles as confirmed by the High Court.
  • Significant procedural delay, particularly where not attributable to the respondent, is a legitimate factor in the exercise of the residual discretion on a Crown sentence appeal.
  • The principal purpose of a Crown sentence appeal is to establish sentencing principles for the guidance of future courts, not to correct every sentencing error. Once the High Court has itself addressed the relevant principles, further resentencing by the Court of Criminal Appeal may serve no additional guidance function.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 60A(1)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Bugmy [2012] NSWCCA 223
- Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
- R v Engert (1995) 84 A Crim R 67
- R v CMB [2014] NSWCCA 33
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321