Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9 (13 February 2015)

Case Name:	Bungie, Scott v R; Bungie, Robert v R
Medium Neutral Citation:	[2015] NSWCCA 9
Hearing Date(s):	12 November 2014
Decision Date:	13 February 2015
Before:	Ward JA at [1]; Simpson J at [2]; Wilson J at [54]
Decision:	Scott Bungie: (1) Leave to appeal granted; (2) Appeal dismissed. Robert Bungie: (1) Leave to appeal granted; (2) Appeal dismissed.
Catchwords:	APPEAL - sentencing - break, enter and steal, aggravated break and enter, larceny, armed robbery - extent of jurisdiction conferred by s 43 Crimes (Sentencing Procedure) Act 1999 (NSW) - principle of finality - Achurch v The Queen [2014] HCA 10 - s 43 limited to the correction of the imposition of penalties contrary to the law - appeal dismissed APPEAL - appeal against severity of sentence - whether appropriate weight attributed to applicant’s personal circumstances - Bugmy v The Queen [2013] HCA 37 - sufficient weight attributed - appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, s 43, s 44(2), s 53A Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) Crimes Act 1900 (NSW), s 97(1), s 112(2), s 112(3)
Cases Cited:	Achurch v The Queen [2014] HCA 10; 306 ALR 566 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v AB (No 2) [2011] NSWCCA 256 R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328 R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 R v Bungie (NSWDC, 7 February 2014, published under the title: “Correction to Sentence”) R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category:	Principal judgment
Parties:	2010/318560; 2011/118832 Scott Bungie (Applicant) Regina (Respondent) 2010/318612; 2011/118729 Robert Thomas George Bungie (Applicant) Regina (Respondent)
Representation:	Counsel: S Corish (Scott Bungie) P Lange/A J Karim (Robert Bungie) S Dowling SC (Respondent) Solicitors: Integrity Criminal Legal (Scott Bungie) Aquila Lawyers (Robert Bungie) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/318560; 2011/118832 (Scott Bungie); 2010/318612; 2011/118729 (Robert Bungie)
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	07 February 2014
Before:	Williams ADCJ
File Number(s):	2010/318560; 2011/118832 (Scott Bungie); 2010/318612; 2011/118729 (Robert Bungie)

At about 2.00pm on 4 September 2010, the two applicants entered a rural residential property occupied by the victim, a 63 year old woman. The victim’s mother occupied a granny flat on the property. The faces of the applicants were concealed. The applicants used garden furniture to frighten the victim, who left her home and took refuge with her mother in the granny flat. The applicants used more garden furniture to create a barricade to prevent the victim’s dogs from gaining access to the house. They forced entry to the house, searched the house, and escaped with property to the value of $2000.

At about 1.45am on 6 September, the applicants, this time in company with another (juvenile) offender (AS), located a Winnebago van parked on the side of the highway in which the victim, a Tasmanian tourist, was alone and sleeping. They again had their faces concealed. One was armed with a rifle, one with a machete. The victim looked through an aperture to the cab. One of the applicants pointed the rifle directly as his head, and told him to “get the fuck back”. One of the offenders smashed another window of the van. They demanded money and the victim’s mobile telephone. They removed about $500 from the victim’s wallet, but returned the telephone.

A little later on the same morning (about 4.00am) the applicants, again with AS, again with their faces concealed and again armed with the rifle and the machete, entered another rural residential property by smashing a glass door. This property was occupied by a married couple, aged 70 and 63. They demanded access to the safe, and car keys. One of the men threatened to kill the woman. Both victims feared that they would be killed. The victims opened the safe. They stole money and property from the safe, but returned to the woman jewellery that she valued. They stole the victims’ car (which was recovered later the same day).

(i) aggravated break, enter and steal: imprisonment for 4 years and 2 months, with a non-parole period of 2 years and 10 months;

(ii) armed robbery: imprisonment for 7 years with a non-parole period of 5 years;

(iii) specially aggravated break, enter and steal: imprisonment for 7 years with a non-parole period of 5 years.

He stated that he would have accumulated the second sentence by 1 year and 9 months.

“a. The aggregate non-parole period imposed by the sentencing judge is excessive, having regard to insufficient weight having been given by the sentencing judge to the application of the principle of parity between the sentence imposed upon the appellant [sic] and the sentence imposed on co-offender Mr Robert Bungie;

b. The aggregate non-parole period imposed by the sentencing judge is excessive due to the failure of the judge to give sufficient weight to the principle of totality in respect of the offences for which the appellant [sic] was sentenced;

c. The aggregate non-parole period imposed by the sentencing judge is excessive having regard to a failure by the sentencing judge to find, or otherwise give sufficient weight to the ‘special circumstances’ of the Appellant [sic];

d. The aggregate non-parole period imposed by the sentencing judge is manifestly excessive.”

“Ground 1: His Honour erred in imposing an aggregate sentence, in circumstances where such a sentencing option was not available - the applicant having pleaded guilty to two of the three offences prior to 14 March 2011 ...

Ground 2: His Honour erred in failing to give full weight to the applicant’s background of profound deprivation, on the basis that he had not availed himself of rehabilitation opportunities.”

1 What is encompassed by the phrase ‘imposed a penalty that is contrary to law’ in s 43(1) of the Sentencing Procedure Act?

3 If the answer to the second question is in the affirmative and the Court exercises its discretion to impose a penalty in accordance with law, is the penalty imposed by reference to the circumstances as they existed at the time the primary judge imposed the original sentence, or is it imposed by reference to the circumstances which exist at the time the discretion under s 43(2) is exercised?

4 If the answer to the second question is in the affirmative, what sentence should be imposed?”

“100 As this question does not arise, it is unnecessary to express a final view. However, our tentative view is that any penalty should be imposed by reference to the circumstances as they existed at the time of the original sentence rather than by the circumstances which exist at the time the discretion came to be exercised.

101 In our opinion, this approach is consistent with the fact that the power under s 43 of the Sentencing Procedure Act is more limited than the power of the court hearing an appeal under the Criminal Appeal Act [1912]. The power to impose a sentence that should have been imposed invites attention to the position as it was at the time of the original sentence. This, in our opinion, is consistent with what was said in Ho [(1995) 37 NSWLR 393] and Tolmie [(1994) 72 A Crim R 416] that the section does not provide for a rehearing on the merits. However, in circumstances where there is a conflict of authority on the issue and the matter does not directly arise, it is not necessary to express a final view.”

(i) aggravated break, enter and steal: imprisonment for 4 years, commencing on 24 September 2010, with a non-parole period of 2 years and 6 months;

(ii) armed robbery: imprisonment for 7 years, commencing on 24 September 2011, with a non-parole period of 4 years;

(iii) specially aggravated break, enter and commit serious indictable offence: imprisonment for 7 years, commencing on 24 September 2012, with a non-parole period of 3 years and 6 months.

“When re-opening the sentencing proceedings pursuant to s 43(4) of the Crimes (Sentencing Procedure) Act 1999, his Honour erred in holding that the penalty could only be imposed by reference to the circumstances as they existed at the time of the imposition of the original sentence.”

(1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has:

and so applies whether or not a person has been convicted of an offence in those proceedings.

(2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:

(6) [In sub-s (6) the words ‘impose a penalty’ are defined to include the imposition of a sentence of imprisonment].”

“16 The principle of finality forms part of the common law background against which any statutory provision conferring power upon a court to re-open concluded proceedings is to be considered. It is a principle which may inform the construction of the provision. In the present case, it is a principle which informs the limit of the purpose for which s 43 and its precursors were enacted, that limit being that the section was not to provide a substitute for the appellate system ...

17 Consistently with the principle of finality, courts may correct their errors before their orders are formally recorded ...

27 ... The New Zealand and United States examples, however, reinforce the important functional distinction between re-opening proceedings to correct an error which has led to a sentence not authorised by law and correction of error by a sentencing court on appeal. The attribution of a narrower purpose and application to s 43 is consistent with the maintenance of that distinction.

32 Section 43 confers upon courts exercising jurisdiction in criminal proceedings a power to re-open those proceedings and to impose a penalty that is in accordance with law ... The section only applies to criminal proceedings in which one of two conditions is fulfilled. The condition directly relevant to this appeal is that ‘a court has ... imposed a penalty that is contrary to law’. On the ordinary meaning of that collocation, what must be contrary to law is the ‘penalty’. That condition is not satisfied merely by demonstrating that the court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law ...

35 Correction of legal and factual errors in sentencing may be effected in more than one way ... Correction of legal and factual errors is principally available by way of appeal ... Of course, the availability of more than one means of redressing sentencing error, which may be contracted or expanded or added to from time to time, is not determinative of the constructional question in relation to s 43. Their existence demonstrates that corrective powers may be conferred on courts to deal with a variety of cases and subject to a variety of conditions. Such powers, however, do not subsume the appeal process, which remains the principal qualification on the tenet of finality of litigation.

36 The text of s 43 is clear enough. The relevant power is conditioned upon the penalty being ‘contrary to law’. A construction encompassing error in the imposition of a lawful penalty would allow the power to be applied to any penalty, however appropriate, that is imposed under the influence of an error of law or fact. That construction does not fit with the text. Nor does it accord with the limited purpose of the section. The principle of finality should not be taken to have been qualified except by clear statutory language and only to the extent that the language clearly permits. The construction for which the appellant contended, and which is reflected in some earlier decisions of the Court of Criminal Appeal, can only be supported by attributing to the provision a purpose which, whatever its practical benefits, leaves the boundaries between correction and appeal porous and protected only by the exercise of the sentencing court’s discretion. The importance of the distinction between original and appellate jurisdiction in the application of s 43 to courts of first instance militates against such a result. The appellant’s construction should not be accepted. A penalty is not ‘contrary to law’ only because it is reached by a process of erroneous reasoning or factual error.”

“His Honour erred in failing to give full weight to the applicant’s background of profound deprivation, on the basis that he had not availed himself of rehabilitation opportunities.”

“By and large, the reason for offending has been in each case to support a drug habit, however, there must come a time where no matter a person’s background they need to realise that if using drugs and alcohol is leading to severe anti social behaviour they have to take some responsibility for doing something about their situation and not just keep offending and abusing drugs and alcohol.

I know within the Aboriginal community there are many places where culturally appropriate help and rehabilitation can be obtained if an individual wants to be helped. If an individual doesn’t want to be helped then unfortunately the law must run its usual course ...”

Supreme Court of New South Wales - Court of Criminal Appeal

Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9 (13 February 2015)