R v Bugmy [2013] NSWSC 1885 | Case summary

Supreme Court of NSW|2013-12-11|Before: Barr AJ

Remarks on sentence 1BARR AJ The offender, Randall Scott Bugmy, was charged with the murder of Roy Johnson at Broken Hill on 25 February 2012. On 9 December 2013, the day fixed for the commencement of his trial, he offered a plea of guilty of the manslaughter of Mr. Johnson and the Crown accepted the offer in discharge of the indictment.

The Facts 2At about 10:00am on Saturday 25 February 2012 the offender, then aged 25 years, and his mother, Patsy Ann Bugmy, attended premises at 115 Creedon Street, Broken Hill, not far from where they lived. They were members of a group of people who appeared to the occupant, Ms Tina Crowe, to have been drinking. With them were the deceased, aged 24 years, and Marie Johnson, his mother. The group remained at Ms Crowe's house and continued to drink beer and wine throughout the day. 3At about 7:30pm an altercation took place between Ms Anevea Dutton and Ms Johnson. The deceased took Ms Dutton into the house so that she could calm down. A little later a fight took place between Ms Bugmy and Ms Johnson. The deceased left the house, entered the yard and began assaulting the offender. They exchanged punches. The deceased gained the upper hand and forced the offender back against the front fence. The offender went down on the grass and the deceased stood over him, punching him. The offender punched back. 4Ms Dutton left the house and tried to break up the fight between the two women. The deceased left off his attack on the offender and punched Ms Dutton in the eye, causing a laceration. She was treated later that evening at hospital. 5The deceased resumed his attack on the offender, who was still on the ground. He managed to get to his feet and seized a pair of scissors which was lying near him on the ground. He delivered three blows with the scissors causing penetrating injuries to the face, the shoulder and the neck of the deceased. The injuries to the right cheek and throat were the substantial cause of the eventual death of the deceased. After the altercation the offender picked up a piece of broken bottle. The deceased walked away and the offender did not use it. 6Three teenage children, who were nearby and no doubt attracted by the commotion, saw what happened. 7The deceased and his mother left the house and walked to their house not far away. A few minutes later the deceased left the house and asked a neighbour for a lift to the hospital because, he said, he had been in a fight and was injured. He was advised to wait for an ambulance but walked off. He went into an adjoining street and there spoke to other people. They offered the same advice and he walked off again. He went to another house and spoke to the occupants, whom he knew. He fell to the floor and complained that he was having trouble breathing. One of the occupants helped him to stand up and walk to a car and drove him to the Broken Hill Base Hospital. During the short drive the deceased said "Randall Bugmy done this to me". The neighbour saw that he was having trouble breathing, gasping for air. 8During all this time a number of emergency calls were made, the first at 8:00pm and the last shortly before an ambulance responded at 8:32pm. 9The deceased entered the accident and emergency section of the hospital at 8:35pm. Staff gave him directions but he would not co-operate and wandered around the emergency department. A medical practitioner tried to assess him but he would not co-operate. He was given a sedative in an effort to bring him under control. He was bleeding from the mouth and the nose and the injuries to his face, neck and shoulder were apparent. The medical practitioner described him as acting in an intoxicated manner and smelling strongly of alcohol. However, he was conscious, conversant and oriented. There was a Glasgow Coma Scale score of 15, with no apparent airway compromise. He was impossible to examine and kept walking about. He was aggressive and combative. Staff and attending police were called to restrain him. At 8:55pm he was given a further dose of sedative. Hospital staff noticed an injury inside the deceased's throat. It was decided to try to intubate his airway at about 9:00pm but the attempt failed. 10 minutes later an attempt to administer a further dose of sedative was only partly successful because the deceased removed the intravenous cannula. Before intubation could be achieved the deceased went into respiratory and then cardiac arrest. That was at 9:15pm. He lost consciousness. Cardio-pulmonary resuscitation was performed. By then the swelling in his throat was so severe that he could not be intubated. An emergency tracheotomy was performed and he was oxygenated. His heartbeat was restored with the assistance of two injections of adrenalin and his blood pressure was restored within 9 minutes of his arrest. He was stabilised and taken into surgery, where his pharyngeal injury was repaired and his other injuries sutured . However, he did not regain consciousness. 10On the 5th of March 2012 the deceased was transferred to Royal Adelaide Hospital. He was recorded as having a retropharyngeal haemorrhage, lacerations and suspected fracture of the C2/C3 vertebrae. Hypoxic brain damage was indicated. Although he was able to support his own breathing via the brain stem, his brain damage was irreparable and he was returned to Broken Hill Base Hospital on the 23rd of March 2012 to be closer to his family. He died on 30 April 2012. 11Dr. Beer examined the deceased post mortem. His opinion was that a chain of events arose from the injuries to the face and the throat. There were bleeding, swelling and occlusion of the airway which gave rise to a cardiopulmonary arrest. In the opinion of Dr. Beer the damage to the C2/C3 vertebrae implied that significant force was required to cause the penetrating injury to the throat. The fracture itself, however, was probably not a significant factor. Dr. Beer was of the opinion that the delay to intubation resulting from the swollen pharyngeal injury gave rise to a prolonged period of hypoxia. Although blood pressure was restored, the deceased had by then sustained severe hypoxic brain damage. The neuropathology finding was of diffuse hypoxic ischaemic encephalopathy. 12Dr. Beer was also of the opinion that the lack of co-operation and the deceased's aggressive behaviour would have been significant factors in preventing the appropriate assessment of his injuries, the control of the bleeding and the institution of a stable patent airway. He was of the opinion that if the deceased had been co-operative it was highly probable that there would have been successful intubation before hypoxic changes occurred. 13As a result of the disturbances at Ms Crowe's house the police were called and attended. They were informed that the deceased had been taken to hospital, so they went there to assist hospital staff try to manage him. As a result of what they were told by eyewitnesses they returned to Ms Crowe's house and arrested the offender for assault. He was cautioned. He denied assault. At the police station he was told that the deceased had been stabbed in the cheek. He received legal advice. He was further cautioned and declined to say anything. However, he told one officer that "it was self defence". The custody manager required him to blow into an alcohol breath test machine and noted a reading of 0.244 grams of alcohol per 100 millilitres of blood. He had a swollen, bruised left eye. He gave a buccal sample for DNA testing. 14On 26 February 2012 the offender was taken to Broken Hill Correctional Centre where he went through normal intake and screening procedures. His injuries were noted and he said that he had been assaulted the day before. He said that he had received the eye injury during a fight with the deceased. He said that he had been drinking lots of Moselle and had shared two cartons. He had also been smoking marijuana, in the order of 20 cones. An officer asked the offender if he had used a weapon and he said, "Scissors, Miss". He expressed his concern that the deceased might die and that he would be charged with murder. He also expressed concern for the welfare of the deceased. 15The police searched the yard of the house where the assault took place and recovered a pair of scissor blades and a broken piece of scissor handle. The total length of the scissors was 12.8 centimetres. The blade portion of the scissors measured 7.8 centimetres. 16The evidence shows that the deceased took the scissors to the party to cut up marijuana to make cigarettes for those present. He did not use them in the fight. 17Blood on the scissors yielded DNA which matched the deceased's DNA. 18The plea of guilty of manslaughter was offered and accepted on the basis of excessive self-defence.

The Offender and his Family 19The offender gave evidence and spoke about his childhood, his family and his introduction to petrol sniffing, alcohol and marijuana. He said something about the offences he had committed. Mr Wilson SC, for the offender, tendered reports and other evidence describing in detail the history of the family, particularly respecting its involvement with the Department of Community Services. 20The offender was born on 25 June 1986 and is now 27 years old. Despite a deprived childhood, about which I shall say more, he was dealt with only twice in the Children's Court, first in 1998 when he was 11 years old and in 2003 when he was 17 years old. He has never been committed to an institution. There are convictions for offences of violence. There were two counts of assault occasioning actual bodily harm in 2007 and one each in 2008, 2009 and 2010, for all of which he received custodial sentences. He was also convicted of assault in 2004, assaulting and resisting police in 2005, 2006 and twice in 2007 and for escaping from police custody in 2006. He has damaged property and has contravened personal violence orders. His longest sentence, and the only one in respect of which he has been convicted on indictment, was imposed in the District Court in March 2009 for offences of assault occasioning actual bodily harm and indecent assault. He was sentenced to a term incorporating a non-parole period of 9 months. Altogether he has been sentenced to imprisonment on ten occasions between 2005 and 2010. His longest non-parole period has been 9 months. 21Several of the Department of Community Services documents tendered deal with the offender's elder brother, Donald Douglas Bugmy. He was a little over a year older than the offender and they were close. Robert Young was their father. In August 2004 Mr Young made an affidavit for use in proceedings concerning Donald Bugmy. He said that the mother of Donald and the offender was drinking a lot during her pregnancy with Donald, about 4 to 5 days a week as far as he remembered. He said that Donald used to follow his brothers around after school. They started sniffing petrol when they were about 10 years old. Mr Young did not mention the offender in that respect, but I accept his evidence that he, in turn, followed his elder brother Donald around and learned to sniff petrol from him and his elder brothers. 22In submissions Mr Wilson drew a number of matters from the several reports and from the evidence of the offender. The offender is the fourth of five boys born to his mother. His father died in 2008. His mother has been alcoholic from a young age. She drank throughout her pregnancies. It was reported of Donald that he may have suffered foetal alcohol syndrome. There is a psychologist's report in evidence in that respect. It is possible also that the offender is so affected, but it cannot be put higher than that. 23The relationship between the parents was marred by domestic violence and drinking. They separated in 1997/1998 when the offender was 11 or 12 years old. 24The departmental records demonstrate an appalling background history for the children of this family. Notifications to the Department were occurring when the offender was as young as 3 years old. There is a well-established history of a lack of food and care, reported to and noted in the Department's records during the 1980s and the 1990s. It is recorded that when there was no food in the house the children went out at night and stole food. 25The offender was led into petrol-sniffing by his brothers. He was admitted to hospital suffering from the effects of that practice on a number of occasions. He was admitted to the Broken Hill hospital in 1995 with suspected pancreatitis as a result of alcohol consumption. He was then 9 years old. The three brothers, Donald, the offender and Hayden, the youngest, were admitted to hospital together as a result of petrol-sniffing in October 1996. The offender was admitted again in March 1997 when he was 10 years old. 26Care proceedings were taken concerning Donald, the offender and Hayden in the Broken Hill Children's Court in 1997. Court reports noted school absences, disruptive behaviour and continued petrol-sniffing. Reports were made by the Department of Housing of continued domestic violence, noise, abusive language and damage to property. 27The offender and Hayden were placed in the care of their aunt, Ms Joyce Bugmy, and went to live with her in Dubbo. They went to school there and their father visited them there. 28The offender continued with some petrol-sniffing and offending behaviour and left school in year 9. He returned to live with his mother in about 2002. 29The most serious part of the offender's record of offending began in 2003. He still has problems with alcohol abuse and he smokes cannabis. 30Three of his brothers are in custody. Donald is serving a sentence at Cessnock. Damien, the eldest, is serving a sentence for manslaughter at Goulburn. Hayden is serving the balance of parole for failing to report. He is kept at the Broken Hill Correctional Centre. 31The offender has had a number of homes. He lived in Wilcannia from his early life, first with his parents and then with his grandmother or aunts. The authorities moved him to Broken Hill at age 9 or 10 because of concern over his petrol-sniffing. When he was 11 years old the Children's Court sent him to live in Dubbo with his aunt, Joyce Bugmy. He left school early in year nine when he was 15 years old, he said because he had begun stealing. He returned to Broken Hill. His father, who had kept in touch with him over the years, visited him frequently. His mother visited him less frequently. While he was in Broken Hill he stopped sniffing petrol but began smoking marijuana. He had been drinking alcohol since he was aged 9 or 10. 32His father was, I think, a good influence on his life. Whenever he was living away from his father's house his father would visit him. He was most anxious and did what he could to stop the offender sniffing petrol. Sadly, he was unable to do so. The offender's mother seems to have been less of an influence on him and has herself been a heavy consumer of alcohol. In more recent times at least she has been in poor health. There have been other good influences on his life, notably Joyce Bugmy in Dubbo. The most stable period of his life seems to have been the five or so years he lived in her household. 33After leaving school at 15 years of age he did not work until he was 18. He smoked marijuana and drank alcohol. Then his father found him a job in the Community Development Employment Program, an organisation of which his father was a supervisor. There was competition for the work offered and applicants had to take turns. The offender had a number of turns, the longest of which lasted a month. That work stopped when his father died in 2008. After that he was offered no work and appears not to have sought work. 34At the conclusion of his first longish custodial sentence the offender was released under supervision for alcohol use and anger management. He attended counselling. However, he kept on drinking. He looked for a job but did not find one. 35His latest and longest prison term resulted from his attack with a cricket bat on his aunt. He attended a drug and alcohol course in custody. On his release he was again made subject to supervision, but he drank whenever he could get money. 36For about 12 months before the commission of the present offence the offender was living in the community and staying out of trouble.

The Objective Gravity of the Offence 37Our society regards very seriously criminal activity which results in the death of one of its members. The parliament has emphasised that regard by fixing the maximum sentence for manslaughter as imprisonment for 25 years. The community expects that human life will be protected by the law and that those who take it will be punished. 38It seems to me that these factors are those by which the present offence is to be determined. The offence arose during a day of drinking by a group of Aboriginal persons, many of whom were related to each other. The deceased and the offender were second cousins and had got on well together in the past. The offender and others were smoking marijuana. The mothers of the deceased and the offender were present and had been drinking. 39A pair of scissors was being used to cut up the marijuana during the day. The mothers of the deceased and the offender became involved in a fight. The deceased, a larger man than the offender, who is a small man, commenced an assault on the offender. He responded with punches but was forced backwards and onto the ground. 40The deceased fought only with fists. 41The offender saw the deceased's scissors on the ground and, in order to protect himself, rose and struck the deceased three blows. The blow to the shoulder was superficial and ultimately unimportant. The other two blows were more important because they caused extensive and troublesome bleeding. The one that struck the spine and fractured it was delivered with considerable force. 42The three blows were inflicted in a very short space of time. 43The offender stabbed the deceased because he thought it was necessary to do so to protect himself. But for the attack launched upon him he would not have done what he did. 44Treatment in good time would have resulted in successful intubation. The vertebral fracture, though serious, was not life-threatening. The delay in treatment which led to hypoxia was the result of the deceased's unreasonable conduct. But for it, the deceased would probably not have died. 45The offender acted out of anger while he was under the influence of alcohol and marijuana. 46One of the features by which the objective gravity of the offence may be judged is the intent with which the offender delivered the blows that caused death. Mr Wilson submitted that the Court would not be satisfied beyond reasonable doubt that the intent was to do really serious bodily injury. I do not accept that submission. These features satisfy me that he had that intent, namely the fact that three blows were struck, the fact that the one that struck the spine was dealt with considerable force, enough to fracture the spine, and that at the conclusion of the fight the offender armed himself with a broken bottle and was, as I find, prepared to use it.

Aggravating Features 47It is an aggravating feature that the offence was committed in the presence of children. The weight to be given to that feature is, however, to be moderated by the fact that the children were of older than tender years, two of them being 13 years of age and the third somewhat older, and by the fact that they were not there when the violence began. Rather, they were attracted by what was going on and came to look. 48It is correct to say that the offence took place in Ms Crowe's home, though that feature is to be given little weight because the events took place close to the outer boundary of her land and not in the house. Ms Crowe herself left the premises before these events unfolded. 49It is normally said to be a seriously aggravating feature that an assault is perpetrated by the use of a knife. Scissors are like a knife in the sense that they are capable of stabbing and killing. However, I accept the submission of Mr Wilson, for the offender, that to regard the use of the scissors as aggravating the criminality would be to ignore the fact that but for their use the force used would not have been excessive. In any case, the offender did not own the scissors or take them to the fight. As he was under attack he saw them on the ground and seized them opportunistically. That act and the resulting blows must have occupied only a few seconds. I do not think that this feature aggravates.

Mitigating Features 50The deceased's unreasonable refusal of treatment and its effect mitigate the offender's criminality. 51So does the fact that the offender's act took place on the spur of the moment and without planning. 52So does his plea of guilty. The offence took place almost two years ago and a good deal of preparation had to go into making the case ready for hearing. The plea of guilty emerged on the morning of the day set for the commencement of the trial. For the utilitarian value of the plea of guilty the offender is entitled to a discount from his sentence at the bottom of the proper range. 53I accept that the offender is remorseful. That is established by his enquiries about the welfare of the deceased on his admission to the Broken Hill Correctional Centre, by his plea of guilty and by his expression before me in evidence that he was sorry. I accept that he is genuinely remorseful.

Prospects of Rehabilitation 54Relevantly, the strongest influences on the offender's life in recent years have been his lack of work, his limited experience of work and his apparent inability to obtain work, coupled with the inescapable fact that when he has nothing to do he spends all his money on alcohol and marijuana. As he acknowledges, if he does not get work after his release he will probably drink. He knows that if he does drink he will do so to excess and will be unable to manage his anger. All his offences of violence have arisen in just such a way. He believes that he has a chance of changing things and wants to take the chance to do so if only he can obtain work. Unfortunately, he appears incapable of finding it. He badly needs to make and to have made on his behalf an attack on these problems. He needs training, advice and counselling on staying away from alcohol. He needs to be better able to control his anger and he needs professional assistance to help him to do so. He needs to be offered work and to be able to find work for himself. 55I do not know whether he can escape from the grip of alcohol and other drugs upon him. His own history and the fact that many members of his wider family and of the community in which he moves have the selfsame problems make his prospects look doubtful. Even so, he must be given every chance. It is in society's interest that that happen. 56The offender is entitled to particular consideration because of the life of deprivation he has suffered. I have set out earlier in these remarks only some of the features of his life. I take into account his neglect and deprivation and his early introduction to petrol-sniffing, encouraged by his brothers, and to the use of alcohol, which was, I think, ordinarily abused in his parents' house. I take into account his resulting inability to cope with the ordinary problems of life. 57It is to be expected that the offender will be offered help during the custodial portion of his sentence, but the need to continue and extend that help upon his release of itself requires a greater proportion of his sentence to be available for parole then would ordinary be appropriate.

Victim Impact Statements 58Victim Impact Statements were received from Alinta Edge, the deceased's partner and mother of his three young children, Maria Johnson, his mother, Grace Margaret Kennedy, his grandmother, Lorina Johnson, his sister and Morna Johnson, his aunt. These statements show how much the deceased's family loved him and how terrible his loss has been for them, how badly they have been affected and how much they miss him. The Court cannot take these matters into account in fixing the sentence to be imposed on the offender, but it can and does extend its sympathy to the deceased's family and to all those who have been affected by his death, and express the hope that now that this proceedings is over they may have comfort.

Sentence 59Randall Scott Bugmy, I sentence you to imprisonment for the manslaughter of Roy Johnson. I set a non-parole period of 3 years and 6 months, which will be taken to have commenced on 25 February 2012 and which will expire on 24 August 2015. The balance of the term of imprisonment will be 3 years and 6 months. It will expire on 24 February 2019. The first day on which you will become eligible for release to parole will be 24 August 2015.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2013

R v Bugmy

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