Case summary Draft Bugmy PDF

Preview

Summary

Download Case summary Draft Bugmy PDF

Description

CASE SUMMARY TEMPLATE Case citation Court (include names of judges who heard the case)

Bugmy v The Queen [2013] HCA 36 The case was heard in the Court of Criminal Appeal in the Supreme Court of New South Wales. Heard by judges: French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

Facts

Bugmy the appellant, pleaded guilty to two offences under s 60A(1) of the Crimes Act 1900 (NSW) (‘The Crimes Act’ ) and one offence under s 33(1)(b) of the Crimes Act. The appellant was upset at the fact that his anticipated visitors may not make it to the Correctional Centre before the close of visiting hours. When the officer went to make enquiries about the possibility of opening hours being extended, Bugmy reacted by assaulting the officer and threatening the officers as he threw pool balls at the officers head. One of the balls struck the officers left eye, causing serious injury. Therefore, the offences Bugmy was charged with amount to s60(1)(A) assaulting an officer while he or she is acting in the execution of their duty, and s33(1)(b) makes it an offence to cause grievous bodily harm with intent to cause harm of that kind. Bugmy was sentenced to a non-parole period of four years and three months and a balance of term of two years. The maximum penalty for an offence under s 60(A)(1) is imprisonment for 5 years and the maximum penalty for an offence under s33(1)(b) is imprisonment for 25 years.

Procedural History

First instance: This case was heard in the District of New South Wales by Lerve J on the 16 February 2012. Bugmy was sentenced to a prison term of years and three months. The matter was then appealed by the appellant to the Court of Criminal Appeal in the Supreme Court of New South Wales. The sentence imposed in the District Court by Lerve J was quashed and a new sentence of 5 years non-parole period to expire on 7 October 2020.

Issues

There are 3 issues in this case: 1. Was the sentence imposed by Lerve J manifestly inadequate? 2. What is the relevance of a deprived background of an Aboriginal offender in sentencing and can the Fernando issues be applied? 3. Should courts take into account the circumstances of Aboriginal offenders and the high rate of incarceration of Aboriginal Australian’s when sentencing an Aboriginal offender?

Decision and orders made

The appeal was allowed and the orders of the Court of Criminal Appeal were allowed, that is sentence imposed by the District court on 16 February 2012 was quashed in respect to count 3 and a sense of imprisonment of five-years non-parole to expire on 7 October 2018 was allowed. Lastly, the Director’s appeal to the Court of Criminal Appeal was remitted.

Court’s reasoning/decision

This was a unanimous decision with 6 judges who wrote a joint judgment and Gageler J writing his own judgment. 1. Was the sentence imposed by Lerve J manifestly inadequate? (Yes) 2. Is the effect of a deprived background diminished overtime? 3. Can the Fernando issues be applied when sentencing an Aboriginal offender? Issue 1: The Director argued that the DC failed to properly determine the objective seriousness of the offence. The submission that Lerve J failed to take into account ‘the appellant’s lack of remorse and failure to take responsibility for his conduct’ (para 21), was challenged by the Court that ‘sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence’ (para 24). Therefore, the Court agreed with the Director and allowed the appeal. Issue 2: The Court concludes that an Aboriginal who has a deprived background ‘may’ mitigate the sentence of an offence to the ‘same way that the deprived background of a non-aboriginal offender may mitigate that offender’s sentence’ (para 37). In this instance, an offender of an Aboriginal background should be sentenced to that of an offender of a non-Aboriginal background. Issue 3: The Court observes that ‘where an offender’s abuse of alcohol is a reflection of the environment….it should be taken into account as a mitigating factor’ (para38). The Fernando principles that have been established were taken into account by the Court, as it acknowledged the ‘grave social difficulties’ that Aboriginals face. However, the leverage that it applies should not be exploited by those who come from Aboriginal backgrounds. It is will not provide solitude and just outcomes if every Aboriginal community is generalised. Notwithstanding, the fact that Aboriginal’s face injustice and hardship but it is important for a judge to differentiate the circumstances of each offender. The Court agreed that it is not enough to generalise the behaviour of Aboriginal offenders but, there is a need to individualise justice (para 41). The challenge to the sentencing discretion is to look at the offender’s background and those who come from a background that is characterised by abuse of alcohol and alcohol-infused violence. Therefore, the circumstance of each individual offender should be taken into consideration when mitigating a sentence as the moral culpability between that of a person who has been exposed to the abuse of

alcohol in their formative years will be a factor to be considered (para 40).

Ratio decidendi

1. There was no evidence of remorse tendered at the sentencing hearing for which the DC could rely on to reduce the sentence. 2. An offender being an Aboriginal or non-Aboriginal if they come from a deprived background should be accounted for equally. 3.The relevant test for exercising discretion of a decision, a judge must take into consideration the specific mitigating factors that could affect an individual offender and provide a reasonable individualised sentence.

Obiter dicta

Gageler J’s comments are obiter dicta.

What is my justification for identifying the ratio? …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………………

If there is any obiter, why have identified it as obiter? …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………………………………...