Bugmy v The Queen

In the course of fixing the minimum term, Brooking J. drew attention to the applicant's lengthy criminal record. He had sixty-nine convictions arising out of twenty-two court appearances between May 1975 and December 1981. They included four convictions for assault. Between April 1977 and December 1978 he was sentenced to youth training centre detention seven times for a total of two years three months detention. Between March 1979 and April 1981 he was sentenced to imprisonment on eight occasions for a total effective period of more than four years, as well as a sentence for two convictions for armed robbery sustained on 1 February 1983. There were further convictions, including one for assault and another for assaulting a prison officer. The latter conviction arose out of a riot in which the applicant and other prisoners attacked prison officers during a muster.

Brooking J. noted that the two offences of armed robbery bore marked similarities to the circumstances of the present case. His Honour said that these two offences, along with the subject offence, were "vicious and wanton". His Honour considered that the circumstances of the three offences and the applicant's behaviour in prison (to which we shall shortly refer), together with other material, suggested "that there is a great danger that he will re-offend in a similar way if released".

Each of the earlier armed robberies took place on the night of 21 November 1981. The applicant and a man named Evans, not having the admission money to enter the Royal Exchange Hotel, went in search of a person to bash and rob. They found a victim near the Victoria Market. The applicant hit him about six times from behind on the head with a steel bar. He searched the victim's pockets and took a packet of cigarettes and about one dollar.

The victim was left lying on the ground. His attackers ran towards the city. Evans told the applicant that he may have killed the man. Nonetheless, they went to a public toilet in Flinders Street and waited in different cubicles for a further victim. A man entered the toilet and the applicant sprang from his cubicle and hit him on the back of the head with the steel bar. The man fell to the ground and the applicant hit him several more times with the bar to his face and head and punched him. Evans kicked the man. The applicant demanded money and the victim was found to have sixty cents before his assailants fled.

As in the case of the offence of murder, neither of these attacks consisted of a demand for money followed by an act of violence to extract compliance with the demand. Each was a deliberate, premeditated and vicious attack made upon a vulnerable person who was a complete stranger to the applicant and in each instance there was a total lack of concern for the fate of the victim. The sentencing judge said that he had to "give weight to the wanton and vicious nature of the fatal attack and of its two forerunners seven months before and to the need to protect the community against similar attacks in the future".

Elsewhere in his judgment, Brooking J. referred to the applicant's very unfortunate and deprived background, his dislocation from the Aboriginal community into which he had been born and the "hopeless, aimless life" he led at the time of the murder. His Honour described reports of the applicant's behaviour in prison since his conviction as "far from encouraging". His behaviour was stated to be unsettled and anti-social. There was an incident in which the applicant and other prisoners became intoxicated and he had threatened prison officers with a pair of scissors and half a billiard cue. He was disarmed with the aid of a dog and a dog handler. He was a severe management problem and, on two occasions, was found armed with a knife. Brooking J. stated that it had been said that the applicant's major problem was alcohol and drug abuse. However, his Honour noted that the applicant had benefited from spending time in the prison drug treatment unit and for a considerable part of 1987 his behaviour improved.

Brooking J. also referred to material from a clinical psychologist suggesting that the 1981 crimes were not out of character and that the applicant had only a shell of personal development with virtually non-existent conscience formation, and very poor impulse control. The judge acknowledged that the applicant's personality was very significantly related to his background, but noted that reports supplied by the Parole Board were not optimistic as to the applicant's prospects "outside of an institution". Dr Bartholomew, a psychiatrist, found him not to be mentally ill but said that his prognosis was "not good". A report from the Office of Corrections referred to the fact that the applicant's record of substance abuse and assaults on staff meant that he was still detained in high security confinement after six years of imprisonment.

It is apparent that his Honour took into account the circumstances of the crime, the applicant's propensity to commit violent crime, his "relative youth and his highly deprived and tragic background", as well as his prospects for rehabilitation. His Honour formed the view that the applicant's dangerous propensity and his faint hopes of rehabilitation meant that he posed a considerable threat to the community. He concluded:

In my desire to protect the community, I have gone to what I regard as the permissible limit of what is appropriate to the crime on the footing that the term proposed is, in all the circumstances, appropriate and not disproportionate.

In the Full Court, Fullagar J. found no error in the sentence. His Honour said:

In my opinion, the learned Judge carefully considered all relevant matters to sentencing, including the race of this applicant and his background. His Honour expressly referred to the grave deprivations which this man has suffered but that cannot be allowed to determine the result. If, for example, one has a very dangerous criminal from whom the public should, in the Judge's opinion, be protected for a period of time, compassion and mercy may still play a part in the sentence, but they cannot be allowed to dictate a result which the sentencing Judge regards as wrong and insufficient to protect the public. The applicant was properly regarded as irredeemable or incorrigible.

Marks J. found that the primary judge had "painstakingly reviewed the relevant considerations" without error. His Honour said that it had been conceded that it was open to the judge to form the view that the applicant was and remains a danger from which the community was entitled to be protected.

In dissent, Crockett J. was of the view that it was impossible to say that the Parole Board might not ultimately regard the applicant as suitable for parole, and so it would be "inappropriate and possibly counter-productive" to the "prisoner's possible rehabilitation, and so to the community interest, if an inordinately long period is fixed as a non-parole period".

The applicant contends that, as Crockett J. held, the imposing of a very long minimum term was unjustified because a prisoner's future behaviour in prison and psychological condition could not be adequately assessed to a great distance in the future. In other words, it was impossible to conclude that the applicant was "irredeemable or incorrigible", and so the sentencing judge should not have viewed him as a threat to the community and thereby limited his prospects of rehabilitation.

This Court has consistently refused to grant special leave to appeal merely on the ground that the sentence appears to be excessive: Deakin v. The Queen [1] . To justify the grant of special leave, the applicant must show error on the part of the court below giving rise to a question of principle. He might be able to show such an error on the part of the sentencing judge in this case, if it were correct to regard the fixing of a minimum term of imprisonment as a function intended solely or primarily to benefit a prisoner and assist his or her rehabilitation. In that event, factors such as deterrence of others from crime and the protection of society from the prisoner would assume a secondary importance to the individual welfare of the prisoner.

1. (1984) 58 A.L.J.R. 367; 54 A.L.R. 765, at p. 765.

It has been said that "[t]he intention of the legislature is that a minimum term is a benefit to the prisoner": Iddon & Crocker v. The Queen [2] ; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: Corrections Act 1986 Vict., s. 74(1); Community Welfare Services Act 1970 Vict., s. 195(1), since repealed. But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation. Power v. The Queen [3] put paid to that notion. Barwick C.J., Menzies, Stephen and Mason JJ. observed [4] :

In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention. After pointing out that the fixing of the non-parole period was concerned with deterrence [4] , their Honours went on to say [5] : To read the legislation in the way we have suggested fulfils the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence. That comment was repeated in the unanimous judgment of the Court in Deakin [6] . See also Reg. v. Paivinen [7] ; Reg. v. Watt [8] . Although Power concerned different legislation, no relevant distinction with the Victorian law is suggested. 1. (1987) 32 A. Crim. R. 315, at pp. 325-326. 2. (1974) 131 C.L.R. 623. 3. (1974) 131 C.L.R., at p. 628. 4. (1974) 131 C.L.R., at p. 628. 5. (1974) 131 C.L.R., at p. 629. 6. (1984) 58 A.L.J.R., at p. 367; 54 A.L.R., at p. 766. 7. (1985) 158 C.L.R. 489, at p. 495. 8. (1988) 165 C.L.R. 474, at p. 481.

Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan [9] . In that case Jenkinson J., with whom Kaye J. agreed, pointed out [10] that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community "will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice".

1. (1980) 7 A. Crim. R. 146. 2. (1980) 7 A. Crim R., at p. 155.

Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.

A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v. The Queen [No. 2] [11] , whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.

In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner's prospects of rehabilitation. If the judge's assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of the minimum term.

In the present case, the sentencing judge referred to the applicant's deprived background, his bleak future prognosis, his conduct in prison since the trial, the nature of the offence and the evidence suggesting that the applicant had a propensity to commit violent armed robbery with indifference to the fate of his victims. His Honour formed the view that the community needed to be protected from the applicant. Minds may differ as to whether or not the evidence had shown that the applicant was incorrigible or irredeemable, but it has not been shown that the sentencing judge erred in principle in forming the view that the applicant constituted a danger from which the community required protection. That being so, his Honour was entitled to conclude, having regard, as he did, to all other relevant considerations, that a very lengthy minimum term was appropriate in all the circumstances.

We would reject the suggestion that his Honour was unduly influenced by considerations relevant to the determination of a head sentence. All the facts to which his Honour referred were relevant to the fixing of the minimum term. It is simply wrong to suggest that the propensity of the offender to commit violent crimes, the likelihood of his re-offending and the need to protect the community are of marginal relevance in the fixing of the minimum term; in truth they are factors which are necessarily central to a proper discharge of the judicial task. Equally, it is wrong to suggest that these factors are of distinctly less significance in the case of a long minimum term by reason of difficulty of making a forecast of future behaviour so long ahead. Their relevance and significance remain the same; the weight that they have depends upon the judge's assessment of the prisoner's prospects of rehabilitation.

In this respect Brooking J. found that the applicant's prospects were bleak and there was ample material to justify that assessment. The applicant's conduct in the six years during which he has been a prisoner and the fact that at the expiration of six years he was still detained in high security confinement are eloquent on that score. As his Honour acknowledged, the term of eighteen years and six months was at the outer margin of what was permissible. We doubt ourselves that we would have fixed quite so long a term, but that is not the point. It is not the function of this Court to review the exercise of a sentencing discretion unless it reflects an error of principle or results in some manifest injustice. Neither has been shown to exist here.

We would refuse to extend the time for making the application and refuse the application for special leave to appeal. As a majority of the Court would grant special leave, we would dismiss the appeal.

On 5 November 1984 the applicant was sentenced by Brooking J. in the Supreme Court of Victoria for the offences of murder and armed robbery. For the offence of murder the sentence was mandatory, namely, for the term of the applicant's natural life. For the offence of armed robbery, the applicant was sentenced to imprisonment for nine years, the sentence to be served concurrently with the sentence for murder.

At the time the applicant was sentenced, a person sentenced for the term of his or her natural life could be released through the exercise by the Governor of the royal prerogative of mercy, on the advice of the Executive Council, which in turn acted on the recommendation of the Parole Board. The courts played no part in such releases: see Reg. v. Stone [12] . However, since the Crimes (Amendment) Act 1986 Vict., a person convicted of murder is liable to imprisonment for the term of his or her natural life or for such other term as is fixed by the Court, as the Court determines: Crimes Act 1958 Vict., s. 3. The same amending legislation introduced s. 18A of the Penalties and Sentences Act 1985 Vict. which provides that, with respect to any person already serving a sentence of life imprisonment, the Supreme Court may "fix a minimum term in any manner in which such a term might have been fixed had that person been sentenced to imprisonment by the Supreme Court for the term of his or her natural life" after the relevant amending legislation came into force. And pursuant to s. 19A of the Penalties and Sentences Act, where a person has been convicted of murder and a court has imposed a minimum term, the person must not be released from prison before the expiration of the minimum term. By reason of s. 60(5) of the Corrections Act 1986 Vict., a person convicted of murder is not entitled to any remission, either of the head sentence or of any minimum term fixed by the Court.

On 1 April 1987 the applicant sought an order fixing a minimum term of imprisonment pursuant to s. 18A of the Penalties and Sentences Act. The application was heard on 1 May 1989 and Brooking J. fixed a minimum term of eighteen years and six months. The applicant applied for leave to appeal to the Court of Criminal Appeal and the application was dismissed (Fullagar and Marks JJ., with Crockett J. dissenting).

In fixing a minimum term, Brooking J. discussed the circumstances in which the offences of murder and armed robbery had been committed, the applicant's long history of previous convictions, his personal circumstances, including the fact that he had been committed to the care of the Social Welfare Department at the age of three and for practical purposes had no family life at all, together with the applicant's history while in prison serving the current sentences, a history which included attacks on prison officers. He was described in one report furnished to the Court as "blatantly anti-social". Brooking J. expressed particular concern at the circumstances of two counts of armed robbery for which the applicant was convicted in February 1983, because of the similarity borne to those incidents by the attack which led to the applicant's present convictions. His Honour commented:

The circumstances of the murder and the circumstances of the armed robberies some seven months before and the applicant's behaviour in prison, together with the other material, suggest to my mind that there is a great danger that he will re-offend in a similar way if released. Full weight must be given to the applicant's relative youth and his highly deprived and tragic background. I have taken into account everything said in his favour but I must also give weight to the wanton and vicious nature of the fatal attack and of its two forerunners seven months before and to the need to protect the community against similar attacks in the future. It would be wrong to refuse to fix a minimum term but the term fixed must be a very long one. Brooking J. concluded his remarks in this way: In my desire to protect the community, I have gone to what I regard as the permissible limit of what is appropriate to the crime on the footing that the term proposed is, in all the circumstances, appropriate and not disproportionate.

In the Court of Criminal Appeal, Fullagar J. was of opinion that no error on the part of the sentencing judge had been demonstrated. Marks J. was of the same view, adding:

It was conceded on his behalf that the applicant's antecedents and the nature of the crime are such as to have permitted the learned Judge to entertain the view that the applicant was, and remains, dangerous, and that the protection of other members of the community was a very necessary consideration and one which he was obliged to bear in mind in fixing a minimum sentence. That being so, I am unpersuaded that the term fixed by the learned Judge is manifestly excessive.

Before us, much of the applicant's argument focused on the purposes of sentencing, with particular reference to what had been said by this Court in Veen v. The Queen [No. 1] [13] and in Veen v. The Queen [No. 2] [14] . Counsel suggested that, since Veen [No. 2], a method of sentencing, described as a two-step approach, has developed in the courts. This approach, it was said, involves first determining the outer limit of the sentence and then applying mitigating factors, if any, so as to arrive at an appropriate sentence. It was further suggested that had his Honour adopted such an approach he would have been less likely to fall into error. Such an approach was firmly rejected by the Victorian Court of Criminal Appeal in Reg. v. Young, Dickensen and West [15] . In the view of that Court, this Court in Veen [No. 2] "did not have in mind that a sentencer might, let alone should, proceed to arrive at the sentence to be imposed by a staged or structured approach".

1. (1979) 143 C.L.R. 458. 2. (1988) 164 C.L.R. 465. 3. Unreported; Supreme Court of Victoria (Court of Criminal Appeal); 1 March 1990.

Whatever the merits of this debate, the task facing Brooking J. was not that of determining an appropriate sentence for the offence of murder of which the applicant had been convicted. That sentence had been marked out by the legislature. The task his Honour assumed was to determine an appropriate minimum term in all the circumstances. The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole: Corrections Act, s. 74(1). That is not to say that the minimum term should be seen as the shortest time required for a paroling authority to form a proper view of the prisoner's prospects of rehabilitation. That approach was rejected in Power v. The Queen [16] . Referring to Power, this Court said in Deakin v. The Queen [17] :

The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence. The views expressed in Power have been affirmed on other occasions in this Court: see for instance Lowe v. The Queen [18] ; Reg. v. Paivinen [19] ; Reg. v. Watt [20] ; Hunter v. The Queen [21] ; Griffiths v. The Queen [22] . 1. (1974) 131 C.L.R. 623. 2. (1984) 58 A.L.J.R. 367; 54 A.L.R. 765, at p. 766. 3. (1984) 154 C.L.R. 606, at p. 615. 4. (1985) 158 C.L.R. 489, at p. 495. 5. (1988) 165 C.L.R. 474, at p. 481. 6. (1988) 62 A.L.J.R. 424. 7. (1989) 167 C.L.R. 372, at p. 396.

In Iddon & Crocker v. The Queen [23] , the Court of Criminal Appeal of Victoria said of the legislation with which this appeal is concerned: "The scheme of the legislation is plain enough. The intention of the legislature is that a minimum term is a benefit to the prisoner " That benefit lies in providing the prisoner a basis for hope of earlier release and in turn an incentive for rehabilitation: see Wardrope v. The Queen, referred to in Iddon & Crocker [24] . The fact is, though, that the sentence remains, in the present case, one of life imprisonment.

1. (1987) 32 A. Crim. R. 315, at pp. 325-326. 2. (1987) 32 A. Crim. R., at pp. 327-328.

Although Brooking J. clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance. While the psychiatric and other reports furnished to Brooking J. do not engender much optimism for the applicant's future, the latest of those reports, that from the Office of Corrections, does offer the opinion that "Bugmy's prognosis is entirely dependent on his capacity to refrain from or at least limit his substance abuse". This is a reference to various drug-related incidents in which the applicant was involved while in prison and a suggestion that he has now recognized the consequences of his drug-taking and is taking some steps, such as participation in group therapy, to counter his addiction. In saying that he had gone to "the permissible limit of what is appropriate to the crime on the footing that the term proposed is, in all the circumstances, appropriate and not disproportionate", his Honour was echoing what had been said in Veen [No. 2], but said in relation to the fixing of a head sentence.

In his dissenting judgment Crockett J. emphasized that the punishment imposed on the applicant "has always been, and will remain, one of imprisonment for life". His Honour continued:

If at the expiry of whatever minimum term was fixed the applicant's attitude and behaviour were as they now are, I should have thought that he could entertain no prospect of being paroled. On the other hand, no one can say that the stage might not be reached when the expert advice of Corrections Department authorities will be that the applicant is suitable for an attempt at parole, even though at present that day may appear far distant.

It is for this reason that it seems to me to be inappropriate, and possibly counter-productive, to a prisoner's possible rehabilitation, and so to the community interest, if an inordinately long period, every day of which must be served, is fixed as a non-parole period. This, of course, is not to say that in fixing a minimum term the elements of deterrence and retribution are to be disregarded.

Crockett J. was also concerned that some reasonable degree of uniformity be achieved in the fixing of a minimum term where a life sentence had been imposed. The information furnished to the Court of Criminal Appeal showed that there had been seventy-eight minimum term applications made, all of which had been acceded to. In nine cases a minimum term of fourteen years was fixed; in the others, with two exceptions, the minimum term was less than fourteen years. One of the exceptions was a case of double murder for which the minimum term fixed was sixteen years. The other was a case of triple murder for which the minimum term was fixed at seventeen years. In the present case, as Crockett J. pointed out, the minimum term was effectively one of nineteen years, after taking into account pre-sentence detention, and was to be served immediately upon serving two years for other offences.

Uniformity of sentencing is a matter of importance. It cannot be pressed too far but what does emerge is that the minimum term fixed for the applicant is higher than any other in the statistics furnished to the Court of Criminal Appeal. That of itself is a matter calling for some scrutiny of the minimum term on the part of the appellate court. But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: see generally King C.J. in Reg. v. Robinson [25] . There is no incongruity necessarily involved in this approach, as Jenkinson J. noted in Morgan and Morgan [26] , when, as a member of the Victorian Court of Criminal Appeal, he said:

The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify. 1. (1979) 22 S.A.S.R. 367, at p. 370. 2. (1980) 7 A. Crim. R. 146, at p. 154.

Making allowance for the fact that in the present case the maximum term is fixed by the legislature, we do not think that this is how the sentencing judge or the majority in the Court of Criminal Appeal approached the matter. Rather, the sentencing judge arrived at the term of eighteen years and six months in a manner more appropriate to the fixing of a head sentence and the Court of Criminal Appeal impliedly, if not expressly, upheld that approach. The error is of sufficient importance to the sentencing process to warrant a grant of special leave to appeal.

The time for making this application for special leave to appeal should be extended, the application itself granted, and the appeal allowed. The matter should be remitted to the Court of Criminal Appeal for further consideration in accordance with these reasons.