Bugmy v The Queen [1990] HCA 18

High Court of Australia Mason C.J. Dawson, Toohey, Gaudron and McHugh JJ. Bugmy v The Queen [1990] HCA 18

ORDER Application for an extension of time in which to apply for special leave to appeal granted. Application for special leave to appeal granted. Appeal allowed. Set aside the order of the Full Court of the Supreme Court of Victoria dismissing the application for leave to appeal. Remit the matter to the Full Court of the Supreme Court of Victoria for determination in accordance with the judgment of this Court.

Cur. adv. vult.

The following written judgments were delivered:—

May 24 Mason C.J. and McHugh J.

This is an application for special leave to appeal in relation to an order fixing a minimum term of imprisonment pursuant to s. 18A of the Penalties and Sentences Act 1985 Vict.. That section empowers the Supreme Court of Victoria to fix a minimum term with respect to a person serving a sentence of life imprisonment. The applicant, who was born in 1961, was convicted on a charge of murder in 1984, at which time the legislature provided for a mandatory sentence of life imprisonment for the offence of murder. There was then no provision for the fixing of a minimum term. Section 18A was introduced subsequently.

The application was heard by Brooking J., who was the trial judge. His Honour fixed a minimum term of eighteen years and six months. An appeal to the Full Court (Fullagar and Marks JJ., Crockett J. dissenting) was dismissed. The applicant now seeks special leave to appeal on the ground that Brooking J. erred in principle in fixing that minimum term.

The murder for which the applicant was sentenced took place on the night of 30 June 1982. The applicant, then aged twenty, had been drinking and walked from the Builders' Arms Hotel in Fitzroy, Melbourne, to the Royal Exchange Hotel opposite the Victoria Market. Upon finding that he did not have the two dollars necessary for admission, he went to the Victoria Market looking for somebody to bash and rob. He did not find a victim there, but did discover a long iron bar which he carried to the nearby Flagstaff Gardens. The bar was about 90 cm. long with a sharp flange at each end. In the Gardens, he entered a public toilet in search of a victim. The toilets were empty, so the applicant hid behind a tree and waited for someone to appear. When the victim, a derelict aged about fifty-four, entered the toilet block, the applicant followed him, waited until he was seated in a cubicle with the door open and hit him at least twice in the face with the bar. The victim fell to the floor and the applicant took five dollars from one of his pockets. The applicant acknowledged that he then struck the victim at least fourteen times to the back of the head and likened the blows to chopping wood with an axe. The blows caused shocking injuries, resulting in death.