Bugmy v The Queen [2013] HCATrans 111 (10 May 2013)

Last Updated: 14 May 2013

[2013] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S16 of 2013

B e t w e e n -

WILLIAM DAVID BUGMY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 2013, AT 10.12 AM

Copyright in the High Court of Australia

MS D. YEHIA, SC: If the Court pleases, I appear with MS G.A. BASHIR on behalf of the applicant. (instructed by Aboriginal Legal Service (NSW/ACT) Ltd).

MR L.A. BABB, SC: If the Court pleases, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

MS YEHIA: Your Honours, there is an extension of time sought.

HAYNE J: Is that opposed?

MR BABB: It is not opposed.

HAYNE J: Yes, you have that leave.

MS YEHIA: In our submission, the questions we have set out at application book 94 are questions of general importance. It is convenient to go directly to question 1 which concerns section 5D of the Criminal Appeal Act. Justice Hoeben in a judgment concurred in by Justices Johnson and Schmidt held – this is at application book 63, paragraph 53 of the judgment that, “It is not necessary to deal with” the ground of manifest inadequacy. The Court of Criminal Appeal also said that errors had been identified:

of such a kind that it will be necessary to re-sentence the respondent.

If I could also take your Honours to page 64, paragraph 55. The Court then said:

It follows from my findings of error in his Honour’s approach to the objective seriousness of the offence and to the respondent’s subjective case, that a more severe sentence –

is warranted. In our submission, that demonstrates that there was a failure both by the Court of Criminal Appeal both to consider of manifest inadequacy and to consider the exercise of the residual discretion.

HAYNE J: Now, it may be, Ms Yehia – this may be a matter that Mr Babb may ultimately have to deal with - that what the Court said relative recently in Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at 581, particularly in paragraph [9], may support the view that the three grounds pleaded as additional grounds of appeal – see page 44 of the application book – are better seen, perhaps even so far as properly seen, as no more than, as was said in Carroll, some explanation for what was alleged to be a sentence which, on its face, was “unreasonable or plainly unjust” and that they are not assignments of specific error.

MS YEHIA: With respect, your Honour, our submission would be that in truth they were particulars of the ground pleaded as manifest inadequacy, the ground that was not specifically considered by the Court of Criminal Appeal and certainly, in our submission, it was necessary for the Court of Criminal Appeal to consider both the issues of manifest inadequacy and to turn its mind to the exercise of residual discretion for the purposes of Crown appeals being more than simply a way in which an erroneous sentence is increased.

So that, in our submission, the considerations of manifest inadequacy and their residual discretion assist in identifying the error and as to whether, importantly, the error was of such a material kind as to warrant intervention.

BELL J: Could I take this up with you, Ms Yehia? The residual discretion of which you speak I think has been held in this Court in Green to have survived section 68A and the removal of considerations of what are sometimes described as double jeopardy in the determination of Crown appeals, but it might be thought that there is considerably less amplitude to that discretion in light of section 68A, and I should say equivalent provisions in a number of other jurisdictions.

I raise the matter with you because that on one view might be raised by the submissions that you are developing. True enough it is the Court did not consider the residual discretion, but there might need to be some attention to what factors properly were open to it in that regard in light of section 68A.

MS YEHIA: Your Honour, our submission is that in light of 68A the residual discretion certainly still has work to do, that this is so is borne out by the decision in JW itself and certainly as appears in the application book, our submissions at page 98. We in this respect rely upon the decision of this Court of Everett and, further, the reasons of Justice McHugh are set out in our submissions, as I say, at page 98.

We also have extracted there the remarks of Justice Hunt in Janceski and the decision in Reynolds at appeal book 121 and 122. The particular considerations that in our submission were overlooked by the Court of Criminal Appeal in their failure to consider the residual discretion are the factors that we have set out in the application book at pages 98 and 99. If I could take your Honours to page 98, paragraph 23 and over the page to page 99, in particular, paragraph 23, factors (b) through to (f).

Those factors, (b) through to (f) were undisputed facts. We accept that paragraph 23(a) is a matter asserted by us, but in relation to the undisputed factors, and they are set out there in paragraph 23(b) to (f), these were factors that were not taken into account by the Court of Criminal Appeal. No mention was made in relation to them. In our submission, this points to or demonstrates error on the part of the Court of Criminal Appeal and highlights the types of consideration that would, we say, have been relevant in a consideration of the residual discretion.

HAYNE J: Can I just understand how this then would all play out if leave were to be granted? The first ground, as I would understand it, would be a ground that manifest inadequacy had to be considered and was not.

MS YEHIA: Yes.

HAYNE J: If that ground succeeded – so, if there were a grant and if that ground succeeded, what would you then say this Court should do, remit it to the Court of Criminal Appeal to do again, I suspect may be the more likely outcome than having this Court re-determine the appeal for itself as to what sentence is or is not within the range, but is that right?

MS YEHIA: Yes, your Honour.

HAYNE J: How then would the residual discretion issues, if I try to lump them together, or the Fernando consideration issues, fall for argument in this Court? I do not say that they do not but can you explain to me how they would?

MS YEHIA: Because, your Honour – if I could take up that point – we say that in relation to the Fernando issue that this is – or the Court of Criminal Appeal’s approach to the issue of social deprivation in an offender’s youth and background was erroneous and it is a matter of significant and - - -

HAYNE J: I am sorry, factually erroneous or erroneous statement of
principle?

MS YEHIA: Erroneous statement of principle or purported principle.

HAYNE J: I see, yes.

MS YEHIA: In our submission, this is a matter of significant and indeed profound importance for the administration of criminal justice and for the sentencing, in particular, of indigenous offenders not only in New South Wales but nationally.

HAYNE J: More generally. Do you say that there is a set of circumstances in which this Court not only could but would get to those issues if leave went?

MS YEHIA: Yes, your Honour. Perhaps I can develop what I said earlier in relation to what we submit is the error in approach by the Court of Criminal Appeal. If I can take your Honours to application book 62 at paragraph 50 where his Honour stated that:

with the passage of time, the extent to which social deprivation in a

person’s youth and background can be taken into account, must diminish.

It is a statement of purported principle that is put in mandatory terms, in our submission.

HAYNE J: That is a statement of some optimism.

MS YEHIA: Your Honours, we submit that it was erroneous and that error was compounded by what his Honour then went on to say which was that this is particularly so when the passage of time has induced substantial offending. In our submission, there is no support for this approach, either in statute or in common law, and we have traced back in our written submissions the case relied upon by the Court of Criminal Appeal in making this statement of purported principle to a two judge Bench case of Drew and a minority statement from Justice Abadee in Hickey. That analysis appears at application book 99 to 100, your Honour. It is at paragraph 25 and 26.

In fact, the approach that had been adopted in the Court of Criminal Appeal in the applicant’s case relied upon the decision in Ah-See which had relied upon Hickey. In that case the relevant statement was a statement made by Justice Abadee, not adopted by the majority. Indeed, in a subsequent decision by Justice Simpson who had given the majority judgment in Hickey, had been rejected. In the course of rejecting that approach, her Honour had said that:

All relevant factors on both sides of the register must be taken into account and given their full weight.”

In our submission, the statutory framework of sections 3A, section 21A, Division 1A, and section 5, informed by the common law principles, including those enunciated in Neal and in his Honour Justice Wood’s decision in Fernando are all matters that do not stand or do not support the statement of purported principle as enunciated by his Honour in paragraph 50 of the Court of Criminal Appeal judgment.

HAYNE J: We may be assisted, I think, if we hear from Mr Babb, Ms Yehia. Yes, Mr Babb.

MR BABB: Your Honours, dealing firstly with the aboriginality in the Fernando point, the Court of Criminal Appeal concluded that the trial judge was right to have taken Fernando considerations into account. This is at application book 63, paragraph 50, straight after the passage quoted by my learned friend, and further at paragraph 52 over the page, his Honour concluded:

I am not persuaded that his Honour erred in taking into account what he described as “Fernando considerations” and reducing the weight to be given to general deterrence for that reason.

Looked at in that way - - -

HAYNE J: But the sting comes in the next sentence, does it not?

MR BABB: But, in my submission, what his Honour is saying there is that in particular cases where Fernando considerations remain relevant, the completing considerations of retribution and protection of the community warrant greater weight and that is a conventional sentencing principle. In my submission, there was no finding of error on the way that the Fernando considerations were considered by his Honour and that this simply would not be an issue that would arise on any grant of special leave in a matter that is, as my learned friend has conceded, ultimately, if error were made out simply to be referred back to the Court of Criminal Appeal.

GAGELER J: Is the last sentence of paragraph 52 an upholding of ground 3 of the appeal?

MR BABB: No, it is not, your Honour. It is quite clear when one looks at the last sentence of paragraph 50 that no error has been found in the way that his Honour has approached the Fernando considerations.

BELL J: It is a little unclear when one looks at ground 3, which contends that the trial judge gave excessive weight to the subjective case, the court agrees with the submission that that is evidenced by the failure to take account of the “absence of . . . contrition” – that is in paragraph 40. In paragraph 43 the court appears to accept the submission that it was an error to take into account the applicant’s mental illness. Then, you submit that the court did not accept the third aspect of the asserted error respecting subjective circumstances. The matter that I am raising with you really, I think, points up the issue raised by the first ground which is these were contentions addressed to manifest inadequacy, were they not?

MR BABB: They were. They were matters, however, in my submission, that were substantive errors in the assessment of the overall objective criminality in this initial ground.

HAYNE J: What do you mean by substantive error in this context? They are not errors, are they, of fact?

MR BABB: No.

HAYNE J: It is not as though the trial judge is found to have misconceived the facts?

MR BABB: No.

HAYNE J: They are matters properly taken to account, are they not, if established, and the question becomes whether sufficient weight, too much weight, has been given to them, has it not? In the end, is that not one ground of appeal, manifest inadequacy?

MR BABB: In my submission, your Honour, you can have instances where particularisation of error can be technical and procedural and in itself does not necessarily lead to a finding of manifest inadequacy, but in this particular instance the series of errors established by the Court of Criminal Appeal, those that your Honours have already mentioned, together with, in particular, the finding in relation to the fact that the victim was a corrections officer and that inadequate weight was given to that fact meant that really in total those established errors meant that it was, in effect, a finding of a manifest inadequacy by the CCA.

HAYNE J: That then seems to engage a small hurdle in paragraph 53 of their Honours reasons, “It is not necessary to deal with this ground” of manifest inadequacy.

MR BABB: Because his Honour says:

the errors are of such a kind that it will be necessary to re-sentence the respondent.

What he is really saying there, in my submission, is that the errors, because they go to the heart of the assessment of both the objective criminality and the subjective case meant that the ultimate sentence was manifestly inadequate.

GAGELER J: Are they errors in the House v The King sense? Are they errors that vitiate an exercise of discretion?

MR BABB: Yes, your Honour, they were unreasonable in light of all the facts in the case, did not put adequate weight on those particular factors.

BELL J: Can I just take up one factual matter with you? At application book 56, paragraph 31 and 32, Justice Hoeben deals with the suggestion that the trial judge did misunderstand or misstate not the evidence but the concession said to have been made by the applicant’s counsel respecting the objective seriousness of the offence. That is by reference to the transcript at application book 11 which is page 8 of the transcript of 15 December and one sees there at about line 32 the legal representative of the applicant saying with relation to the injuries suffered by the victim that they were “somewhere between mid-range and somewhere above mid-range”. But then when one moves to the next page, page 12, the legal representative seems to be dividing up the notion of objective seriousness by reference to the injuries then he moves to the, at about line 18:

the objective seriousness of the conduct . . . itself – as is demonstrated by this post throwing a pool ball is . . . less serious than the range of much of the range of [other forms] of physical conduct –

Then the matter moves at application book 14 and 15 to submissions respecting the assessment of the mens rea of the offence as going to its objective seriousness, leading to the submission at page 14, line 30 that the court was required to:

balance a mens rea that is well below the mid-range with a result that is somewhere from the mid-range to above mid-range.

Whatever one makes of those submissions, in terms of the sentencing judge’s task of assessing as part of the process the objective seriousness of the offence, it was just not entirely clear to me that the judge erred in his understanding of the submissions to quite the degree that is attributed in those paragraphs 31 and 32. Now, the matter I raise with you is it does appear that there were written submissions that were handed up because there is reference to those but they do not appear in the application book. Is there something in the written submissions that modifies any of that?

MR BABB: I am not entirely sure, your Honour, I am sorry, but it could well be.

BELL J: All right.

MR BABB: It is just not part of the application book. One of the key considerations is of course that this is a result based offence and very much a large part of the objective seriousness is result-based and the result in this instance was, of course, extremely serious.

HAYNE J: Mr Babb, can I ask you, is this a case in which questions of residual discretion would arise, if leave went?

MR BABB: I see the points that my learned friend has raised. My submission is that ultimately none of those would have any bearing on the residual discretion.

BELL J: I think the point that is being taken against you in that respect is the prosecution appeal was allowed without any consideration to the conduct of the Crown below in the matters that are set out at application book 99 in subparagraphs (b) to (f).

MR BABB: Yes.

BELL J: Now, the residual discretion would usually embrace, would it not, the conduct of the Crown before the sentencing judge and not allow the Crown to succeed on an appeal on a different stance in the Court of Criminal Appeal.

MR BABB: It would, your Honour. When your Honour has mentioned points (b) to (f) there is only one issue raised there that in any sense there is any reference to the conduct of the Crown although all the other matters are completely separate matters and it is only one matter there - - -

BELL J: I think it is (c), in particular.

MR BABB: And, (c), in particular, is the one that your Honour is taking up with me. In relation to that, that really the crux of the Court of Criminal Appeal’s issue with taking into account mental illness in this case was that it was not a good case of mental illness. They quite rightly queried, and this is at application book 61, paragraph 47, the strength of the evidence about mental illness. There had been no previous psychiatric admissions and Dr Westmore’s diagnosis was extremely tentative. So in that way they followed a conventional approach to say that to automatically adjust the weight to be given to general deterrence because of mental illness was not appropriate in this case.

BELL J: Is this a submission that in the conduct of Crown appeals, post-section 68A, it is not necessary for the court to advert to the residual discretion in the disposition of the appeal?

MR BABB: No, it is not, your Honour. There is still life in the residual discretion, even though it is curtailed by the operation of section 68A. Thank you. They are my submissions.

HAYNE J: Yes.

MR BABB: Can I, just in terms of the grounds?

HAYNE J: Yes.

MR BABB: I would submit, your Honour, as I hope I have made clear, that if leave were to be granted my submission is that it would not be granted in relation to anything but ground 1 of the application for special leave to appeal.

HAYNE J: I understand that. If leave were to go, though, on grounds 2 and 3, would that lead, (a) to any prolongation of the hearing of a marked kind, (b) any expansion in the record that had to come to us?

MR BABB: I think certainly question 2 would lead to a significant prolongation of the hearing in relation to a matter that, as I have submitted, no error was found by the Court of Criminal Appeal, and I am not sure exactly what additional material, not having given it sufficient consideration.

HAYNE J: Yes.

There will be a grant of leave on all of the grounds advanced.

What estimate would counsel give of the duration, Ms Yehia? I would have thought it is less than a day, but am I wrong?

MS YEHIA: Perhaps half a day to a day, your Honour.

MR BABB: I agree with that.

HAYNE J: Yes. If counsel’s instructing solicitors would be good enough to pick up the directions that the Registrar will make available concerning the filing of submissions, the time limits have to be observed if only because it is highly probable that this matter would be fixed for hearing in August and, therefore, the time limits that are fixed are necessarily tight.

MR BABB: May it please the Court.

HAYNE J: There will be a grant of leave.

The Court will adjourn to reconstitute.

AT 10.42 AM THE MATTER WAS CONCLUDED