Bustescu v R [2020] NSWCCA 113 (4 June 2020)

Last Updated: 4 June 2020

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Bustescu v R
Medium Neutral Citation:	[2020] NSWCCA 113
Hearing Date(s):	19 May 2020
Decision Date:	4 June 2020
Before:	Harrison J at [1]; R A Hulme J at [2]; Wright J at [20]
Decision:	Leave to appeal against sentence refused.
Catchwords:	CRIME – appeals – appeal against sentence – no evidence of causal connection between mental illness and offending – sentence within bounds of what was sought below – applicant already on parole – leave refused
Legislation Cited:	Crimes Act 1900 (NSW), ss 61, 112(2)
Cases Cited:	Aslan v R [2014] NSWCCA 114 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Category:	Principal judgment
Parties:	Marius Bustescu (Applicant) Regina (Respondent)
Representation:	Counsel: Mr S Lawrence (Applicant) Mr D Patch (Crown) Solicitors: Blair Criminal Lawyers Solicitor for Public Prosecutions
File Number(s):	2017/215569
:
Court or Tribunal:	District Court
Date of Decision:	3 May 2019
Before:	English DCJ
File Number(s):	2017/215569

JUDGMENT

1. HARRISON J: I agree with R A Hulme J.
2. R A HULME J: Mr Marius Bustescu (the applicant) seeks leave to appeal in respect of sentences imposed in the District Court at Campbelltown on 3 May 2019 by her Honour Judge English.
3. The applicant had been found guilty after a trial by judge (without jury) of the following offences:

● Break and enter a dwelling house and commit a serious indictable offence (intimidation) in circumstances of aggravation (knowing persons were present in the dwelling house).^[1]
● Two offences of assault, contrary to s 61 of the Crimes Act.^[2]

4. A sentence of 3 years and 6 months, with a non-parole period of 1 year and 9 months, was imposed for the aggravated break and enter offence. Sentences of 9 months were imposed for each of the assault offences. All of the sentences were specified to date from 28 October 2017.
5. Leave to appeal is sought in respect of the following grounds:

1. The sentencing judge erred in assessing objective seriousness and by applying the approach taken in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, in respect of the relevance of the applicable standard non-parole period, rather than the approach taken in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.
2. The trial judge erred in failing to take into account and consider according to sentencing principle, the evidence as to the Applicant’s mental health and/or erred by failing to give adequate reasons for decision as to how these matters were taken into account and considered.

6. The first proposed ground of appeal depends upon an inference being drawn from a single sentence in the sentencing remarks. It is an inference that is highly tenuous: the judge said she was not imposing the standard non-parole period for an offence because she found its objective seriousness to be below the midrange. It was submitted that her Honour thereby erroneously confined her sentencing discretion.
7. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 is well known for having held that R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 was wrongly decided. There have been a great many decisions of this Court since then in which there has been discussion of the errors of Way and the correct approach to sentencing according to Muldrock. In these circumstances, I would not infer error without demonstration of a clear basis for it. There is no basis for the inference in this case.
8. The other aspect of the first ground of appeal is that the judge found the objective seriousness of an offence to be below the midrange when she should have found it to be in the low range. I do not understand there to be any difference.
9. The second ground of appeal may be thought to contend, in part, that the judge failed to take into account the applicant's mental condition. There is nothing in this. The applicant's mental condition was a subject that dominated the judge's review of the applicant's subjective case.
10. The major thrust of the applicant's argument was that the judge should have found that there was a causal connection between his mental condition and the offending. The difficulty with this is that there was no clear causal link. The expert opinion on the subject, as little as there was directly on this point, was hampered by it being based upon an account provided by the applicant of the relevant incidents. The sentencing judge had presided at the applicant's judge-alone trial and she had rejected his version completely.
11. The other difficulty for the applicant in relation to this issue is that although it was contended in submissions on sentence that there was a causal link, such contention being repeated in this Court, there was no elucidation as to why that was so. It is not enough to point to evidence that the applicant suffered from various mental conditions and to leap to a conclusion that they were causative, directly or indirectly, of the commission of an offence.
12. The point was made by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33]- [35]: the well-established principles of sentencing an offender with a mental or intellectual disability are not stated as absolute. They describe the potential relevance, not automatic consequences that follow.
13. The sentencing judge clearly made a careful evaluation of the relevant aspects of the applicant's mental condition. She referred, for example, to him displaying symptoms of schizophrenia but which required further psychiatric evaluation. She described his mental health generally as "unstable" and "fragile". She accepted that he suffered from post-traumatic stress disorder. She found special circumstances for reducing the non-parole component of the sentence for the primary offence, in part to "ensure he attends for psychiatric assessment and psycho-therapy and adheres to treatment regimes". She also found that the applicant's "time in custody has been onerous".

Disposition

14. There is no merit in either of the proposed grounds of appeal.
15. The Notice of Application for Leave to Appeal was filed six months after the applicant had been released on parole.
16. In the District Court, the applicant specifically sought a sentence of "around 3 years' imprisonment".^[3] The sentence, 3 years and 6 months, was of the order that he asked for.^[4] He also obtained the benefit of a substantial reduction of the non-parole period to 1 year and 9 months compared to a period of about 2 years and 7 months if the statutory ratio were applied.
17. Counsel for the applicant made clear at the hearing in this Court that it was not contended that the sentence was manifestly excessive; in other words, it was accepted that the sentence was not unreasonable or unjust.^[5]
18. These matters are relevant to whether leave to appeal should be granted.
19. I propose the following order:

Leave to appeal against sentence refused.

20. WRIGHT J: I agree with R A Hulme J.

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^[1] This is an offence contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 20 years and there is a standard non-parole period of 5 years.
^[2] This offence is contrary to s 61 of the Crimes Act and there is a maximum penalty of 2 years.
^[3] Written submissions at AB 90; POS p9.34
^[4] When this was raised with counsel who appeared for the applicant in this Court, he sought to deflect the issue by saying that it was simply the opinion of counsel who appeared in the court below. (19.5.20 at T9.26).
^[5] 19.5.20 at T4.11