Bugmy v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan,Kiefel,Bell,Keane JJ,Gageler J
• Judgment Date: 02 October 2013
• Neutral Citation: [2013] HCA 37
• Docket Number: S99/2013
• Date: 02 October 2013

[2013] HCA 37

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ

S99/2013

William David Bugmy

Appellant

and

The Queen

Respondent

Representation

D Yehia SC with G A Bashir for the appellant (instructed by Aboriginal Legal Service (NSW/ACT) Ltd)

L A Babb SC with K H Alder for the respondent (instructed by Director of Public Prosecutions (NSW))

Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1).

Bugmy v The Queen

Criminal law — Appeal — Prosecution appeal against sentence — Where sole ground of appeal manifest inadequacy — Where appellate court increased offender's sentence — Whether finding of manifest inadequacy required before discretion to vary sentence enlivened.

Criminal law — Sentence — Principles — Relevance of deprived background of Aboriginal offender — Application of Fernando (1992) 76 A Crim R 58 — Whether effect of social deprivation diminishes with time and repeat offending — Whether social deprivation has same mitigatory effect for all purposes of punishment — Whether courts should take into account unique circumstances of Aboriginal offenders and high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offender — Whether approach to sentencing Aboriginal offenders in R v Gladue [1999] 1 SCR 688 and R v Ipeelee [2012] 1 SCR 433 should be followed.

Words and phrases — ‘deprived background’, ‘Fernando considerations’, ‘manifestly inadequate’, ‘residual discretion’.

ORDER

Appeal allowed.

Set aside paragraphs 1, 3 and 4 of the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 18 October 2012.

Remit the matter to the Court of Criminal Appeal.

French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. The appellant adhered to pleas of guilty in the District Court of New South Wales (Lerve ADCJ) to two offences under s 60A(1) of the Crimes Act 1900 (NSW) (‘the Crimes Act’) and to one offence under s 33(1)(b) of the Crimes Act. Section 60A(1) makes it an offence to assault a correctional officer 1 while the officer is acting in the execution of his or her duty. Section 33(1)(b) makes it an offence to cause grievous bodily harm to a person with intent to cause harm of that kind.

2 The appellant was sentenced to an effective sentence comprising a non-parole period of four years and three months and a balance of term of two years 2. Judge Lerve recommended that the appellant should be released at the expiration of the non-parole period, subject to his parole order being conditioned on supervision that might require that he undergo treatment for alcohol and substance abuse in a residential programme.

3 The Director of Public Prosecutions (‘the Director’) appealed to the New South Wales Court of Criminal Appeal on the ground that the sentences were manifestly inadequate. The Director later filed additional grounds of appeal, which contended that Judge Lerve had failed to properly assess the objective seriousness of the offence and had given too much weight to the appellant's subjective case.

4 The Court of Criminal Appeal (Hoeben JA, Johnson and Schmidt JJ) upheld the Director's additional grounds of appeal with respect to the sentence for the s 33(1)(b) offence. The Court said that these findings made it unnecessary to decide whether the sentence was manifestly inadequate. The Court re-sentenced the appellant for the s 33(1)(b) offence to a non-parole

period of five years with a balance of term of two and a half years 3. The Court did not consider whether to exercise the discretion conferred under statute to dismiss an appeal brought by the Director notwithstanding the demonstration of error (‘the residual discretion’) 4.

5 On 10 May 2013, Hayne, Bell and Gageler JJ granted the appellant special leave to appeal. The appeal gives rise to three issues. The determinative issue concerns the decision to allow the Director's appeal and to re-sentence the appellant without determining whether the sentence imposed by the primary judge was manifestly inadequate. For the reasons to be given, the appeal to this Court must be allowed and the Director's appeal remitted to the Court of Criminal Appeal to be determined in accordance with these reasons. The remitter makes it appropriate to address the two remaining issues, which concern the correctness of statements made by Hoeben JA, who gave the principal judgment, of the relevance of the appellant's deprived background and mental illness to his sentencing. Before turning to the appellant's grounds, there should be an account of the offence and the appellant's case.

The facts

6 At the date of these events the appellant was a remand prisoner at the Broken Hill Correctional Centre. He was upset at the prospect that his anticipated visitors might not arrive at the Centre before the close of visiting hours. A senior correctional officer, Mr Gould, agreed to make inquiries to find out if the visiting hours could be extended. The appellant was not satisfied with Mr Gould's response. He followed him into the wing office saying ‘I'll split you open, you cunt’. Mr Gould contacted Assistant Superintendent Pitt and told him that the Emergency Team might be needed.

7 The appellant left the wing office and made a telephone call to his partner. He told her that he would ‘split Gould open’.

8 Mr Pitt and another officer, Mr Donnelly, arrived at the scene and spoke with the appellant. The appellant threatened them in much the same terms as he had threatened Mr Gould. He then ran to a pool table and picked up a number of

pool balls. Mr Pitt and Mr Donnelly retreated as the appellant threw pool balls at them. This was the conduct charged as the assaults.

9 Mr Gould entered the yard and the appellant said ‘Gould you cunt, I told you I'm going to split you open’. He threw two balls at Mr Gould, which struck his back. Mr Gould retreated into the wing office and as he attempted to secure the door a third pool ball thrown by the appellant struck him in the left eye, causing serious injury. This was the conduct charged under s 33(1)(b).

10 The appellant climbed onto the roof of the gymnasium and from this vantage point he continued to throw pool balls at the officers. Following negotiations the appellant came down from the roof and surrendered. He expressed satisfaction at having injured Mr Gould and said that he ‘had not finished with Gould’.

11 Mr Gould experienced immediate loss of vision in his left eye. He was taken to the Broken Hill Hospital and from there he was transferred to the Royal Adelaide Hospital. He underwent a series of surgical procedures to repair the damage to his eye and the surrounding bony structures of his face. Mr Gould has lost the sight in his left eye. He suffered a great deal of pain before and after surgery. At the time of this incident Mr Gould was 43 years old. The psychological effects of the assault on him have been profound, in terms of both his diminished enjoyment of life and his career prospects.

The appellant's case

12 The appellant is an Aboriginal man who was raised in Wilcannia, a town in far-western New South Wales. He is one of a number of siblings. He grew up in a household in which alcohol abuse and violence were commonplace. He has had little formal education and is unable to read or write. He started drinking alcohol and taking prohibited drugs when he was 13 years old. He reports having witnessed his father stabbing his mother 15 times. He and his siblings all have records for violence. The appellant's record of juvenile offending commenced when he was 12 years old. From that age he was regularly detained in juvenile detention centres. When he turned 18 he was transferred to an adult prison. He has a long record of convictions including for offences of violence. He was 29 years old at the date of the present offences. He has spent much of his adult life in prison. He gives a history of repeated suicide attempts. He has maintained a long-term relationship with a woman by whom he has a daughter. He and his partner are both alcoholics. The child has been placed in the care of her maternal grandmother.

13 The appellant also has a history of head injury and of auditory hallucinations. He was seen by Dr Westmore, a psychiatrist, in July 2011. At the time the appellant was receiving anti-psychotic medication in custody. Dr Westmore considered that the auditory hallucinations may be related to alcohol abuse, although primary mental illness such as schizophrenia would need to be excluded. Dr Westmore's ‘Axis I’ diagnosis was of conduct disorder arising in adolescence; alcohol and substance abuse; and probable episodes of depression most likely of an adjustment disorder or reactive type. Dr Westmore questioned whether the appellant might be suffering from early alcohol-related or head injury-related brain damage. In a supplementary report, Dr Westmore expressed the opinion that it was likely that the appellant's psychotic symptoms do not arise from drug or alcohol use but have a primary psychotic origin. He assessed the appellant as at risk of self-harm.

Judge Lerve's reasons

14 Judge Lerve noted that the maximum penalty for an offence under s 60A(1) is imprisonment for five years and the maximum penalty for an offence under s 33(1)(b) is imprisonment for 25 years. His Honour also noted that the s 33(1)(b) offence has a standard non-parole period of seven years 5 and in this connection he referred to this Court's decision in Muldrock v The Queen6. The appellant pleaded guilty to the offences before the Local Court and each sentence was reduced by 25 percent to reflect the utilitarian value of the early pleas 7. His Honour considered that the s 33(1)(b) offence was aggravated by the fact that the victim was a correctional services officer 8, and by reason of the significant psychological harm suffered by...