Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9

Bungie, Scott v R; Bungie, Robert v R [2015] NSWCCA 9

The original aggregate sentences were contrary to law because s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply to two offences for which pleas of guilty had been accepted before 14 March 2011. However, s 43 only empowered the court to correct the unlawful penalties and did not permit a general re-opening of the sentencing proceedings or the reception of additional evidence directed to a different sentencing outcome. Williams ADCJ was therefore correct to refuse the proposed additional evidence. Robert Bungie's deprived background was considered by the sentencing judge and, read fairly in context, the remarks on sentence did not show a failure to give it full weight....

Jurisdiction
Australia
Judgment Date
13 February 2015
Procedural Posture
Criminal Sentencing Appeal / Applications for Leave to Appeal Against Sentences Imposed in the District Court at Taree on 7 February 2014
Outcome
Leave to appeal granted for both applicants; appeals dismissed.
Legal Topics
['break, Enter and Steal' 'aggravated Break and Enter' 'larceny' 'armed Robbery' 'section 43 Crimes (sentencing Procedure) Act 1999 (nsw)' 'correction of Sentencing Errors' 'principle of Finality' 'aggregate Sentences' 'social Deprivation in Sentencing']
['criminal Law' 'sentencing' 'criminal Procedure'] ['break, Enter and Steal' 'aggravated Break and Enter' 'larceny' 'armed Robbery' 'section 43 Crimes (sentencing Procedure) Act 1999 (nsw)' 'correction of Sentencing Errors' 'principle of Finality' 'aggregate Sentences' 'social Deprivation in Sentencing']

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Procedural Posture

Criminal Sentencing Appeal / Applications for Leave to Appeal Against Sentences Imposed in the District Court at Taree on 7 February 2014

Legal Issues

  1. 1 ['Whether s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) permitted the sentencing proceedings to be re-opened beyond correction of the unlawful aggregate sentences so as to consider additional evidence and circumstances existing at the time of re-sentencing.' 'Whether Williams ADCJ erred by refusing to receive additional evidence of rehabilitation when correcting the unlawful sentences under s 43.' "Whether Robert Bungie's background of social disadvantage and emotional deprivation was given full weight in accordance with Bugmy v The Queen [2013] HCA 37; 249 CLR 571."]

Ratio Decidendi

The original aggregate sentences were contrary to law because s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply to two offences for which pleas of guilty had been accepted before 14 March 2011. However, s 43 only empowered the court to correct the unlawful penalties and did not permit a general re-opening of the sentencing proceedings or the reception of additional evidence directed to a different sentencing outcome. Williams ADCJ was therefore correct to refuse the proposed additional evidence. Robert Bungie's deprived background was considered by the sentencing judge and, read fairly in context, the remarks on sentence did not show a failure to give it full weight....

Court Disposition

Leave to appeal granted for both applicants; appeals dismissed.

Orders

  • ['Scott Bungie: Leave to appeal granted.' 'Scott Bungie: Appeal dismissed.' 'Robert Bungie: Leave to appeal granted.' 'Robert Bungie: Appeal dismissed.']