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Court of Criminal Appeal 13 February 2015

Bungie, Scott v R; Bungie, Robert v R

[2015] NSWCCA 9

Assault & violenceTheft & propertyFirearms & weapons
APPEAL SENTENCING PRINCIPLE OF FINALITY ACHURCH V THE QUEEN [2014] HCA 10 APPEAL DISMISSED APPEAL APPEAL AGAINST SEVERITY OF SENTENCE

Citation: Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9
Court: Court of Criminal Appeal, New South Wales
Date: 13 February 2015
Judge(s): Ward JA, Simpson J (with whom Ward JA and Wilson J agreed), Wilson J

Background

Two brothers (referred to here as the first and second applicants) were convicted of a series of serious offences committed over three days in September 2010 on the NSW central coast. The offences included aggravated break and enter with larceny, armed robbery (one victim was threatened at rifle-point while sleeping alone in a van), and specially aggravated break and enter at the home of an elderly couple who feared for their lives. Both applicants had their faces concealed and were armed with a rifle and a machete during the later offences.

In August 2012, the District Court sentenced both men to aggregate terms of imprisonment of nine years, invoking s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permits a single aggregate sentence to be imposed for multiple offences. The first applicant received a non-parole period of five years and six months; the second received six years.

Both applicants sought leave to appeal against their sentences. The second applicant's grounds raised a threshold question about whether the aggregate sentencing regime even applied to his offences, given the timing of his guilty pleas in relation to the commencement of the relevant legislative amendment. That question, in turn, required the Court of Criminal Appeal to examine the reach of s 43 of the Sentencing Procedure Act, which allows a court to re-open sentencing proceedings to correct a penalty imposed contrary to law.

  • Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) confers jurisdiction on a sentencing court to re-open and correct a sentence where the aggregate sentencing regime under s 53A was improperly applied, or whether that jurisdiction is limited to correcting penalties contrary to law in a narrower sense.
  • Whether the principle of finality, as discussed in Achurch v The Queen [2014] HCA 10, limits the scope of s 43.
  • Whether the District Court gave sufficient weight to the applicants' background of profound social disadvantage and deprivation, having regard to the principles in Bugmy v The Queen [2013] HCA 37.

Decision

The s 43 jurisdiction question. The central question arising from the second applicant's first ground was whether s 43 permitted re-opening the sentence on the basis that the aggregate sentencing regime under s 53A had been wrongly applied. The Court held that s 43 is confined to correcting the imposition of a penalty that is itself contrary to law. Following the High Court's reasoning in Achurch v The Queen, the Court confirmed that the principle of finality strongly circumscribes this jurisdiction. The fact that a procedural or regime error may have occurred in the course of sentencing does not, without more, mean that the resulting penalty is contrary to law within the meaning of s 43.

Robert Bungie's s 53A ground. The District Court had, after the original sentencing, purported to re-exercise its jurisdiction under s 43 to address the aggregate sentencing issue. The Court of Criminal Appeal considered whether that re-opening was itself lawful and what consequences flowed from it. Ultimately, the Court found that the s 43 issue did not provide a valid basis for disturbing the sentences on appeal, and dismissed that ground accordingly.

Weight given to deprived background. The first applicant's remaining grounds, and the second applicant's second ground, challenged whether the sentencing judge gave adequate weight to the applicants' background of profound deprivation, including exposure to severe family violence, early onset of drug and alcohol use, and cultural and social disadvantage as Aboriginal men. The Court noted that the weight to be given to any sentencing consideration is a matter for the sentencing judge, citing Bugmy v The Queen. Reviewing the remarks on sentence, the Court was satisfied that Williams DCJ had expressly engaged with the evidence of deprivation and had not dismissed it. The sentencing judge's observation that offenders must at some point take responsibility for addressing substance abuse, when read in the context of the whole of his remarks, did not demonstrate a failure to give full weight to background disadvantage. The Court rejected this ground, noting also the very serious nature of the offences across the three-day period.

Orders Made

  • Scott Bungie: leave to appeal granted; appeal dismissed.
  • Robert Bungie: leave to appeal granted; appeal dismissed.

Key Takeaways

  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is limited to correcting penalties that are contrary to law in the strict sense; it does not extend to every sentencing error that may have occurred in the course of the proceedings. The Court of Criminal Appeal confirmed this position by reference to Achurch v The Queen [2014] HCA 10.
  • The principle of finality operates as a meaningful constraint on the s 43 re-opening power, and courts exercising criminal jurisdiction must be attentive to that limitation.
  • Under Bugmy v The Queen [2013] HCA 37, a sentencing court must have regard to an offender's background of social disadvantage and deprivation. However, the weight attributed to that background remains within the sentencing judge's discretion, and an appeal court will not interfere merely because a different weight might have been assigned.
  • No error was established in the sentencing judge's treatment of the applicants' Aboriginal background and history of deprivation. The remarks on sentence, read as a whole, demonstrated genuine engagement with the relevant evidence rather than a dismissal of it.
  • In dismissing both appeals, the Court reinforced that the gravity of the underlying offending, including multiple serious crimes committed over three days with weapons and against vulnerable victims, is a legitimate factor that bears significantly on the overall sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW): Pt 3 Div 3, Pt 4 Div 1A, s 43, s 44(2), s 53A
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Crimes Act 1900 (NSW): s 97(1) (armed robbery), s 112(2) (aggravated break, enter and steal), s 112(3) (specially aggravated break, enter and steal)

Cases:
- Achurch v The Queen [2014] HCA 10; 306 ALR 566
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- R v AB (No 2) [2011] NSWCCA 256
- R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328
- R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
- R v Bungie (NSWDC, 7 February 2014)
- R v Way [2004] NSWCCA 131; 60 NSWLR 168