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Court of Criminal Appeal 29 October 1999

REGINA v BULLING [1999] NSWCCA 429 revised - 27

[1999] NSWCCA 429 revised - 27

Theft & propertyFirearms & weapons

Citation: REGINA v BULLING [1999] NSWCCA 429 revised – 27/06/2000
Court: NSW Court of Criminal Appeal
Date: 29 October 1999
Judge(s): Simpson J; Kirby J

Background

The applicant, a 40-year-old man with a significant criminal history, pleaded guilty in the District Court at Albury to two charges of demanding money with menaces under s 99 of the Crimes Act 1900. The offences occurred on 18 and 20 June 1998, when he attended a petrol station convenience store on both occasions and implied he was armed in order to obtain cash and cigarettes from the console operator.

He was apprehended shortly after the second incident and initially denied involvement. Both attendants identified him, and the items taken in the second offence were recovered. Aggravating the matter, he had appeared in the Local Court just three days before the first offence and had been released on a recognisance to be of good behaviour.

Acting Judge Cantrill in the District Court sentenced the applicant to four years penal servitude on each charge, structured as a three-year minimum term and a one-year additional term, to be served concurrently. The applicant sought leave to appeal, arguing the sentencing judge erred in failing to consider whether special circumstances existed under the Sentencing Act 1989 that would justify departing from the standard sentencing ratio.

  • Whether the sentencing judge erred by failing to consider, or find, special circumstances under s 5(2) of the Sentencing Act 1989, which permits a departure from the conventional ratio between minimum and additional terms.
  • Whether such a failure constitutes appealable error, particularly where experienced counsel for the applicant had not squarely raised the issue before the sentencing judge.
  • Whether the material before the sentencing judge was sufficient to support a finding of special circumstances, having regard to the applicant's subjective circumstances including a long-standing alcohol dependency.

Decision

Simpson J noted the proceedings below were conducted in a way that left very little documentary or evidentiary material before the Court of Criminal Appeal. Much of what the sentencing judge had acted upon came from the bar table rather than formal evidence, making it difficult to draw firm conclusions about what had actually been put to him.

On the special circumstances question, Simpson J observed that there was no reference in the sentencing remarks to any consideration of the issue. Her Honour accepted that a sentencing judge is ordinarily entitled to rely on the assistance of counsel and cannot be expected to investigate matters not raised before him. However, she was satisfied that the material before the sentencing judge relating to the applicant's subjective circumstances, including his dysfunctional childhood, marriage breakdown, and entrenched alcohol problem, was sufficient to have warranted a finding of special circumstances. The failure to address that question constituted error.

Kirby J agreed and added that, while sentencing judges must rely substantially on counsel, they retain an independent duty to deal appropriately with material that is before them. His Honour noted that the applicant presented as a "puzzle" given the combination of voluntary surrender to police, subsequent rapid reoffending, and the evident role of alcohol across his history. Those features were sufficient in Kirby J's view to impose a positive obligation on the sentencing judge to turn his mind to special circumstances, regardless of whether counsel had raised the point.

The Court was also satisfied that the overall sentences imposed were, on the objective and subjective circumstances, at least at the upper end of the available range.

Orders Made

  • Leave to appeal granted.
  • Sentences restructured to a minimum term of two years penal servitude commencing 21 June 1998 and expiring 20 June 2000.
  • An additional term of two years commencing 21 June 2000 and expiring 21 June 2002.

Key Takeaways

  • A sentencing judge's failure to consider special circumstances under s 5(2) of the Sentencing Act 1989 can constitute appellable error, even where experienced defence counsel did not squarely raise the issue at first instance.
  • While sentencing judges are generally entitled to rely on the assistance of counsel, Kirby J confirmed they retain an independent duty to address significant sentencing questions when the material before them plainly raises those questions.
  • Where an offender's history discloses a pervasive pattern of alcohol-related offending and other subjective factors bearing on rehabilitation and supervision needs, those circumstances can, without more, be sufficient to require consideration of special circumstances.
  • Sentences found to be at the upper end of the available range, combined with a failure to address special circumstances, provided a basis for the Court of Criminal Appeal to restructure the sentences by significantly extending the additional (non-parole) term relative to the minimum term.
  • The decision illustrates the limited utility of bar-table submissions on sentencing: the absence of formal evidence created real difficulties for the appellate court in assessing what material had actually been before the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 99 (demanding money with menaces; maximum penalty ten years penal servitude)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances justifying departure from standard minimum/additional term ratio)

Cases cited: None identified in the provided text.