Bungie, Scott v R; Bungie, Robert v R

The applications for leave to appeal

1. On 27 September 2013, on behalf of Scott Bungie, an application for leave to appeal against the sentence was filed. Four grounds of appeal were pleaded. They were: "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."
2. On 31 October 2013 an application for leave to appeal against sentence was filed on behalf of Robert Bungie. Two grounds were pleaded. They were: "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."
3. The first ground pleaded on behalf of Robert Bungie alerted the Crown to a little known provision concerning the applicability of s 53A of the Sentencing Procedure Act.
4. Put briefly, s 53A was inserted into the Sentencing Procedure Act by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) ("the amending Act"). The amending Act was proclaimed to commence on 14 March 2011. Schedule 1 of the amending Act contained transitional provisions, s 62 of which provided that the amendments were applicable to the determination of sentences for offences whenever committed, unless, prior to the commencement date of s 53A (that is, 14 March 2011) a court had accepted a plea of guilty and the plea had not been withdrawn.
5. Since the pleas of guilty to two of the offences had been entered, accepted, and not withdrawn prior to 14 March 2011, it was clear that the aggregate sentences and non-parole periods were imposed contrary to law within the meaning of s 43 of the Sentencing Procedure Act: see R v AB (No 2) [2011] NSWCCA 256.
6. Accordingly, in 2014 the Crown filed a Notice of Motion in the District Court. Pursuant to s 43(2) of the Sentencing Procedure Act it applied to the court to re-open the proceedings and correct the error by imposing penalties in accordance with law.
7. By this time, Williams DCJ had retired. He held, however, a commission as an acting judge of the District Court. The Crown's application came before him on 7 February 2014. Initially, his Honour was reluctant to accede to the application, apparently taking the view that, as the applications for leave to appeal to this Court had proceeded to the point of having been allocated a hearing date, the error could as readily be corrected by that avenue. However, counsel who appeared for both applicants sought to put before the court additional material relevant to sentence. That additional evidence went essentially to the progress towards rehabilitation that the applicants had made during the period of their incarceration. (It will be noted that the applicants were arrested in September 2010, were refused bail, and were sentenced in August 2012; by February 2014 they had been in custody for 2 years and 6 months, and it is not unreasonable to suggest that time had afforded them at least the opportunity to take steps towards rehabilitation.)
8. In support of the application to adduce further evidence, counsel relied upon the decision of this Court in R v Achurch (No 2) [2013] NSWCCA 117; 84 NSWLR 328 ("Achurch (No 2)").
9. It is convenient at this point to divert from the account of the procedural history and note the facts and circumstances of Achurch (No 2).
10. Achurch was sentenced in the District Court on drug charges, some of which were offences to which Pt 4 Div 1A of the Sentencing Procedure Act applied. Part 4 Div 1A prescribes standard non-parole periods in respect of certain offences. After Achurch was sentenced, the Crown appealed to this Court against what it asserted to be the manifest inadequacy of the sentences. This Court allowed the Crown appeal and sentenced Achurch, imposing increased terms of imprisonment: R v Achurch [2011] NSWCCA 186; 216 A Crim R 152. In doing so, this Court applied the law as it had been earlier declared by this Court (R v Way [2004] NSWCCA 131; 60 NSWLR 168) and was understood and accepted at the time.
11. Seven weeks later the High Court held that Way was wrongly decided. Achurch therefore applied to this Court under s 43 of the Sentencing Procedure Act to re-open the proceedings, arguing that this Court had, in terms of s 43, "imposed a penalty that [was] contrary to law". The penalty was contrary to law, he argued, because the Court had applied legal principles that were subsequently declared to be wrong. The penalties were, however, penalties that, in the application of correct principle, could have been imposed.
12. Bathurst CJ and Garling J identified the questions before the Court as follows: "19 … 1 What is encompassed by the phrase 'imposed a penalty that is contrary to law' in s 43(1) of the Sentencing Procedure Act? 2 Was the penalty imposed in the present case contrary to law? 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?"
13. Having concluded that, in that case, the penalty imposed was not, within the meaning of s 43, "contrary to law", the Court found it unnecessary to answer the third question. Nevertheless, in respect of that question, their Honours did make these observations: "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."
14. Johnson J and Bellew J agreed with the reasons given by the Chief Justice and Garling J, Johnson J giving additional reasons. McClellan CJ at CL also agreed with the orders but explained his reasons differently.
15. Achurch (No 2) was the operative authority at the time Williams ADCJ dealt with the application made by the present applicants. His Honour declined to receive the additional evidence, giving reasons for that decision: R v Bungie (NSWDC, 7 February 2014, published under the title: "Correction to Sentence"). He considered it appropriate that he impose sentence in accordance with the law as it stood at the time of sentencing, but in such a way as to maintain the overall head sentences and non-parole periods that had formerly been expressed as aggregate head sentences and aggregate non-parole periods.
16. Accordingly, he imposed the following sentences: Scott Bungie: (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.
17. He sentenced Robert Bungie to identical terms, although, for reasons it is not necessary to explain, the commencement dates were different. The effect of the sentencing in each case was to replicate what had previously been expressed as aggregate head sentences and non-parole periods.

The hearing of the applications

1. At the commencement of the hearing of the applications, counsel for Scott Bungie abandoned all four of his original grounds. He sought to maintain the proposed amended ground, but acknowledged that he was not in a position to place before the Court evidence of the kind envisaged in the ground. He therefore sought adjournment of the proceedings.
2. Counsel for Robert Bungie was in a position to proceed. The Court therefore determined that it would proceed with that application. The outcome of Scott Bungie's adjournment application would depend entirely on the view taken as to the success or otherwise of the s 43 ground. If the s 43 ground as argued on behalf of Robert Bungie failed, having regard to the abandonment of Scott Bungie's other grounds, there could only be one outcome of his application. It would fail.
3. The issues before the Court were thus limited to two (ground 1 having gone by default, once Williams ADCJ had proceeded to re-sentence). These were the s 43 ground, and ground 2, the ground that asserted failure to accord "full weight" to the applicant's background of "profound deprivation". This ground relied substantially upon the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571.

Section 43 of the Sentencing Procedure Act

1. The focus of the oral argument was upon the construction of s 43 of the Sentencing Procedure Act. It is now convenient to set out the terms of that section. That section relevantly provides: "43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, 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: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) … (4) … (5) … (6) [In sub-s (6) the words 'impose a penalty' are defined to include the imposition of a sentence of imprisonment]."
2. That ground is, in my opinion foreclosed. The decision of this Court in Achurch (No 2) was appealed to the High Court. On 2 April 2014 (shortly after Williams ADCJ had been referred to Achurch (No 2)) the High Court delivered judgment: Achurch v The Queen [2014] HCA 10; 306 ALR 566 ("Achurch"). It is fair to say that the High Court gave a narrow interpretation to the power conferred by s 43. The plurality (French CJ, Crennan, Kiefel and Bell JJ) firmly distinguished between appellate correction of error of fact or law, and correction by a primary court of error which has led to a result not authorised by law. The fifth member of the Court, Gageler J, took a similar view, giving his own reasons.
3. Central to the High Court decision was the question whether the penalties imposed by this Court on Achurch were "contrary to law" in the sense that that phrase is used in s 43: see, for example, [36] and [39]. That fact significantly distinguishes Achurch from the present case. There is, here, no question that the penalties originally imposed by Williams DCJ were, within the meaning of s 43, "contrary to law". But that is of little comfort to the applicants. Throughout the reasoning of the High Court, both in the plurality judgment and that of Gageler J, emphasis was placed upon the very narrow scope of s 43.
4. For example, the plurality said: "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."

(1995) 37 NSWLR 393

[2004] NSWCCA 131

[2013] NSWCCA 117

[2011] NSWCCA 186