Bungie, Scott v R; Bungie, Robert v R

1. [1]

   WARD JA: I agree with Simpson J.

2. [2]

   SIMPSON J: Before the Court are applications by two brothers (Scott Bungie and Robert Bungie) for leave to appeal against a series of sentences imposed upon them in the District Court at Taree on 7 February 2014. The circumstances that give rise to the applications have some unusual features, and will be detailed below. The principal issue in the applications concerns the extent of jurisdiction conferred by s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) on courts exercising criminal jurisdiction. The relevant parts of s 43 will be set out below. For the moment, it is sufficient to say that s 43 permits a court that has imposed a penalty that is contrary to law to re-open the proceedings for the purpose of correcting the error.

The offences

1. [3]

   In September 2010 both applicants were arrested and charged with three offences committed over a three day period earlier that month on the central coast of NSW. I shall set out, as briefly as possible, the circumstances of the offences, dealing with them in the order in which they were committed.

2. [4]

   In respect of this offence, the applicants were charged with aggravated break and enter and commit a serious indictable offence (larceny) (Crimes Act 1900 (NSW), s 112(2)). The circumstance of aggravation was that the offence was committed in company. The maximum penalty prescribed for that offence is imprisonment for 20 years.

3. [5]

   In respect of this offence, the applicants were charged with armed robbery, contrary to s 97(1) of the Crimes Act. The maximum penalty prescribed for that offence is imprisonment for 25 years.

4. [6]

   In respect of this offence, the applicants were charged with specially aggravated break and enter and commit a serious indictable offence (larceny) (Crimes Act, s 112(3)). The circumstance of special aggravation was that the applicants were armed with dangerous weapons. The maximum penalty applicable to this offence is imprisonment for 25 years.

5. [7]

   At sentencing, each applicant also asked that a further offence of aggravated break, enter and steal identified on a Form 1 under the provisions of Pt 3 Div 3 of the Sentencing Procedure Act be taken into account. This offence was committed on 20 September, a few days before the applicants’ arrest. It, too, was an offence of aggravated break, enter and steal committed at a rural residential property, where the applicants stole various items, including two motorcycles. Both were recovered, one in a damaged condition.

Some relevant procedural history

1. [8]

   The applicants were arrested on 24 September 2010 and charged with the offences committed on 6 September. They were refused bail. Subsequently (on 31 November) the applicants were issued with Court Attendance Notices in relation to the offence of 4 September. On 8 March 2011 the applicants entered pleas of guilty to an indictment charging the counts of armed robbery, and specially aggravated break, enter and steal (the offences committed on 6 September). On 7 March 2012, the day fixed for trial, the applicants entered pleas of guilty to the count of aggravated break, enter and steal (the 4 September offence).

2. [9]

   The matter came on for hearing before Williams DCJ (as he then was) in the Port Macquarie District Court, and was listed from time to time thereafter in the Port Macquarie and the Taree District Courts.

3. [10]

   On 3 August 2012, after hearing evidence, Williams DCJ sentenced the applicants. In doing so, he invoked the provisions of s 53A of the Sentencing Procedure Act. Those provisions permit a court, when sentencing an offender for multiple offences, to impose a single (aggregate) sentence with respect to any two or more of the offences. Sub-section (2) of s 53A requires that, where that course is taken, the court specify the sentence that would have been imposed for each individual offence had separate sentences been imposed. Section 44(2) similarly permits the court to specify a single (aggregate) non-parole period.

4. [11]

   Williams DCJ sentenced Scott Bungie to an aggregate term of imprisonment for 9 years with an aggregate non-parole period of 5 years and 6 months. In accordance with s 53A(2), he specified that, had he imposed separate sentences for the three offences, he would have imposed the following sentences:

5. [12]

   He also sentenced Robert Bungie to an aggregate term of imprisonment of 9 years, but with an aggregate non-parole period of 6 years. He did not specify the individual sentences that he would have imposed. However, it appears that he had in mind imposing the same sentences in respect of Robert Bungie as specified in respect of Scott Bungie. The discrepancy in the non-parole periods was due to an increased notional accumulation in respect of the latter.

6. [13]

   On 27 September 2013, on behalf of Scott Bungie, an application for leave to appeal against the sentence was filed. Four grounds of appeal were pleaded. They were:

7. [14]

   On 31 October 2013 an application for leave to appeal against sentence was filed on behalf of Robert Bungie. Two grounds were pleaded. They were:

8. [15]

   The first ground pleaded on behalf of Robert Bungie alerted the Crown to a little known provision concerning the applicability of s 53A of the Sentencing Procedure Act.

9. [16]

   Put briefly, s 53A was inserted into the Sentencing Procedure Act by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) (“the amending Act”). The amending Act was proclaimed to commence on 14 March 2011. Schedule 1 of the amending Act contained transitional provisions, s 62 of which provided that the amendments were applicable to the determination of sentences for offences whenever committed, unless, prior to the commencement date of s 53A (that is, 14 March 2011) a court had accepted a plea of guilty and the plea had not been withdrawn.

10. [17]

    Since the pleas of guilty to two of the offences had been entered, accepted, and not withdrawn prior to 14 March 2011, it was clear that the aggregate sentences and non-parole periods were imposed contrary to law within the meaning of s 43 of the Sentencing Procedure Act: see R v AB (No 2) [2011] NSWCCA 256.

11. [18]

    Accordingly, in 2014 the Crown filed a Notice of Motion in the District Court. Pursuant to s 43(2) of the Sentencing Procedure Act it applied to the court to re-open the proceedings and correct the error by imposing penalties in accordance with law.

12. [19]

    By this time, Williams DCJ had retired. He held, however, a commission as an acting judge of the District Court. The Crown’s application came before him on 7 February 2014. Initially, his Honour was reluctant to accede to the application, apparently taking the view that, as the applications for leave to appeal to this Court had proceeded to the point of having been allocated a hearing date, the error could as readily be corrected by that avenue. However, counsel who appeared for both applicants sought to put before the court additional material relevant to sentence. That additional evidence went essentially to the progress towards rehabilitation that the applicants had made during the period of their incarceration. (It will be noted that the applicants were arrested in September 2010, were refused bail, and were sentenced in August 2012; by February 2014 they had been in custody for 2 years and 6 months, and it is not unreasonable to suggest that time had afforded them at least the opportunity to take steps towards rehabilitation.)

13. [20]

    In support of the application to adduce further evidence, counsel relied upon the decision of this Court in R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328 (“Achurch (No 2)”).

14. [21]

    It is convenient at this point to divert from the account of the procedural history and note the facts and circumstances of Achurch (No 2).

15. [22]

    Achurch was sentenced in the District Court on drug charges, some of which were offences to which Pt 4 Div 1A of the Sentencing Procedure Act applied. Part 4 Div 1A prescribes standard non-parole periods in respect of certain offences. After Achurch was sentenced, the Crown appealed to this Court against what it asserted to be the manifest inadequacy of the sentences. This Court allowed the Crown appeal and sentenced Achurch, imposing increased terms of imprisonment: R v Achurch [2011] NSWCCA 186; 216 A Crim R 152. In doing so, this Court applied the law as it had been earlier declared by this Court (R v Way [2004] NSWCCA 131; 60 NSWLR 168) and was understood and accepted at the time.

16. [23]

    Seven weeks later the High Court held that Way was wrongly decided. Achurch therefore applied to this Court under s 43 of the Sentencing Procedure Act to re-open the proceedings, arguing that this Court had, in terms of s 43, “imposed a penalty that [was] contrary to law”. The penalty was contrary to law, he argued, because the Court had applied legal principles that were subsequently declared to be wrong. The penalties were, however, penalties that, in the application of correct principle, could have been imposed.

17. [24]

    Bathurst CJ and Garling J identified the questions before the Court as follows:

18. [25]

    Having concluded that, in that case, the penalty imposed was not, within the meaning of s 43, “contrary to law”, the Court found it unnecessary to answer the third question. Nevertheless, in respect of that question, their Honours did make these observations:

19. [26]

    Johnson J and Bellew J agreed with the reasons given by the Chief Justice and Garling J, Johnson J giving additional reasons. McClellan CJ at CL also agreed with the orders but explained his reasons differently.

20. [27]

    Achurch (No 2) was the operative authority at the time Williams ADCJ dealt with the application made by the present applicants. His Honour declined to receive the additional evidence, giving reasons for that decision: R v Bungie (NSWDC, 7 February 2014, published under the title: “Correction to Sentence”). He considered it appropriate that he impose sentence in accordance with the law as it stood at the time of sentencing, but in such a way as to maintain the overall head sentences and non-parole periods that had formerly been expressed as aggregate head sentences and aggregate non-parole periods.

21. [28]

    Accordingly, he imposed the following sentences:

22. [29]

    He sentenced Robert Bungie to identical terms, although, for reasons it is not necessary to explain, the commencement dates were different. The effect of the sentencing in each case was to replicate what had previously been expressed as aggregate head sentences and non-parole periods.

23. [30]

    Both applicants have sought leave to amend their applications by adding the following further ground:

24. [31]

    Both applicants have filed extensive written submissions in support of their originally pleaded grounds, as has the Crown. On behalf of Robert Bungie, a further written submission, directed to the proposed amended ground has been filed, to which the Crown has responded.

The hearing of the applications

1. [32]

   At the commencement of the hearing of the applications, counsel for Scott Bungie abandoned all four of his original grounds. He sought to maintain the proposed amended ground, but acknowledged that he was not in a position to place before the Court evidence of the kind envisaged in the ground. He therefore sought adjournment of the proceedings.

2. [33]

   Counsel for Robert Bungie was in a position to proceed. The Court therefore determined that it would proceed with that application. The outcome of Scott Bungie’s adjournment application would depend entirely on the view taken as to the success or otherwise of the s 43 ground. If the s 43 ground as argued on behalf of Robert Bungie failed, having regard to the abandonment of Scott Bungie’s other grounds, there could only be one outcome of his application. It would fail.

3. [34]

   The issues before the Court were thus limited to two (ground 1 having gone by default, once Williams ADCJ had proceeded to re-sentence). These were the s 43 ground, and ground 2, the ground that asserted failure to accord “full weight” to the applicant’s background of “profound deprivation”. This ground relied substantially upon the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

Section 43 of the Sentencing Procedure Act

1. [35]

   The focus of the oral argument was upon the construction of s 43 of the Sentencing Procedure Act. It is now convenient to set out the terms of that section. That section relevantly provides:

2. [36]

   That ground is, in my opinion foreclosed. The decision of this Court in Achurch (No 2) was appealed to the High Court. On 2 April 2014 (shortly after Williams ADCJ had been referred to Achurch (No 2)) the High Court delivered judgment: Achurch v The Queen [2014] HCA 10; 306 ALR 566 (“Achurch”). It is fair to say that the High Court gave a narrow interpretation to the power conferred by s 43. The plurality (French CJ, Crennan, Kiefel and Bell JJ) firmly distinguished between appellate correction of error of fact or law, and correction by a primary court of error which has led to a result not authorised by law. The fifth member of the Court, Gageler J, took a similar view, giving his own reasons.

3. [37]

   Central to the High Court decision was the question whether the penalties imposed by this Court on Achurch were “contrary to law” in the sense that that phrase is used in s 43: see, for example, [36] and [39]. That fact significantly distinguishes Achurch from the present case. There is, here, no question that the penalties originally imposed by Williams DCJ were, within the meaning of s 43, “contrary to law”. But that is of little comfort to the applicants. Throughout the reasoning of the High Court, both in the plurality judgment and that of Gageler J, emphasis was placed upon the very narrow scope of s 43.

4. [38]

   For example, the plurality said:

5. [39]

   As I have said, because the High Court was concerned with what constitutes an imposition of a sentence “contrary to law” (which is not here in issue) the observations are not directly apposite to the present case. However, the tenor of the judgments is. Particularly apposite is the reference to construing the provision in such a way as to “fit with the text”.

6. [40]

   The text of s 43 is directed to correction of an error that results in the imposition of sentence that is “contrary to law”. It is for that reason only that power is given to re-open the proceedings. The section is not intended to afford an opportunity to sentenced offenders to re-litigate what they have already litigated, or to seek a different outcome, on different evidence.

7. [41]

   It is inherent in the approach of the High Court that the powers conferred by s 43 are limited to the correction of errors that have resulted in the imposition of penalties that are contrary to law. Section 43 does not extend to a general re-opening of proceedings in such a way as to permit or enable a reconsideration (with or without additional evidence) of the decision originally made. Williams ADCJ was correct to refuse to accept the proposed additional evidence.

8. [42]

   The s 43 ground must therefore be rejected.

9. [43]

   It follows that the application by Scott Bungie must fail.

The applicant’s personal circumstances

1. [44]

   Ground 2 of Robert Bungie’s application is framed as follows:

2. [45]

   It is beyond doubt that social deprivation in the childhood or youth of an offender is, and remains, a relevant sentencing consideration, which must be given “full weight”: Bugmy. It is not a consideration that inevitably dictates a more lenient sentence (see [44]).

3. [46]

   There was, in the material presented on behalf of Robert Bungie, significant evidence of childhood deprivation.

4. [47]

   In a psychiatric report prepared by Dr Richard Furst, a history is recounted of “drinking and violence within his family of origin”. Dr Furst did not elaborate to any great extent. The applicant himself gave evidence, which significantly strengthened the proposition that he had been socially and emotionally deprived as a child. He said his father became very drunk and very violent towards the applicant’s mother. As a result, he was in trouble from an early age, and began drinking and using drugs, also at an early age.

5. [48]

   The evidence was, in my opinion, such as to qualify for the description “social disadvantage” or “emotional deprivation”. These are circumstances that can, and do, affect the responses of individuals to social norms and may explain a descent into criminality.

6. [49]

   The question here is not whether those circumstances existed: it is whether they were properly taken into account by Williams DCJ. It is to be remembered that the weight to be attributed to any sentencing consideration is a matter assigned to the sentencing judge: Bugmy, at [24].

7. [50]

   Williams DCJ had regard to the evidence. Indeed, he expressed some frustration at what he clearly perceived to be inadequate measures taken by relevant authorities to alleviate the effects of the social disadvantage. But he added:

8. [51]

   It was these remarks (made generally, but applicable to both applicants) that provide the foundation for this ground. When they are fairly read, in the context of the whole of the Remarks on Sentence, I do not think it can legitimately be said that his Honour failed to give “full weight” to the applicants’ deprived background.

9. [52]

   The very serious circumstances of the offences cannot be overlooked. Over the course of three days, the applicants committed three very serious offences. In my opinion, this ground cannot be substantiated. I would reject it.

10. [53]

    The orders I propose are:

11. [54]

    WILSON J: I agree with Simpson J.