REGINA v BULLING [1999] NSWCCA 429

New South Wales Court of Criminal Appeal CITATION : REGINA v BULLING [1999] NSWCCA 429 revised - 27/06/2000 FILE NUMBER(S) : CCA 60468/99 HEARING DATE(S) : 29 October 1999 JUDGMENT DATE : 29 October 1999

PARTIES : REGINA v Steven Shane BULLING JUDGMENT OF : Simpson J at 1; Kirby J at 22

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/71/0098 LOWER COURT JUDICIAL OFFICER : Cantrill Acting DCJ

COUNSEL : P BG Berman - Crown P M Skinner - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : DECISION : Sentence restructured.

IN THE COURT OF CRIMINAL APPEAL 60468/98

SIMPSON J KIRBY J

29 October 1999

REGINA v Steven Shane BULLING Judgment

SIMPSON J: 1 The applicant, Steven Shane Bulling, seeks leave to appeal two sentences imposed on him by Acting Judge Cantrill in the District Court at Albury on 21 August 1998. The applicant had previously entered pleas of guilty to two charges of demanding money with menaces for which section 99 of the Crimes Act 1900 provides a maximum penalty of penal servitude for ten years. 2 The offences were committed in the early hours of 18 June 1998 and the evening of 20 June 1998. The applicant entered a convenience store in the BP Border Service Station in Albury and approached the console operator in such a way as to suggest that he was armed with a weapon and demanded money. On the first occasion,he was given $355; on the second he was given $155 and some cigarettes. 3 The second incident was observed by a customer in the store. The applicant was apprehended by police shortly after the second incident and initially denied his involvement in either offence. He was at that time apparently affected by alcohol. He was identified by both the service station attendants. The money and cigarettes stolen on the second occasion were recovered, but none of the money taken on the first occasion was recovered. 4 Judge Cantrill sentenced the applicant on each charge to a total term of penal servitude for four years divided conventionally into a minimum term of three years and additional terms of one year to be served concurrently. In doing so, he referred to information which plainly had been provided to him from the bar table, but which was not the subject of documentary or oral evidence. 5 Because of the way in which the matter was conducted at first instance, there is not a great deal of material before this court and it is necessary to approach the application on the scantiest of information. 6 The applicant was born on 20 May 1958. He was forty years of age at the time of the offences. He has a reasonably lengthy criminal history, which includes a number of terms of imprisonment for offences of a variety of kinds including sexual offences, offences of dishonesty and damage to property. 7 Cantrill ADCJ apparently accepted the personal history which was provided to him from the bar table. The applicant had had a hard and dysfunctional childhood with a mother whose living arrangements were unstable and who formed a number of de facto relationships during the applicant's childhood. He was one of six children. He married at the age of twenty-one but the relationship terminated when he was twenty-five and this appears to have precipitated a thereafter long standing problem with alcohol. 8 His Honour did not regard his alcohol addiction as a matter of mitigation, expressing the view that, had he wished to do so, the applicant could have broken that habit himself. 9 His Honour observed what he described as a "peculiar feature" of the case. Shortly before these offences the applicant surrendered himself to police in relation to offences committed in 1997. 10 On 15 June - that is only three days before the first of these offences - he appeared in the Local Court in relation to those charges and was released on a recognisance to be of good behaviour. Obviously, that recognisance was current at the time of these offences and its existence is an aggravating feature to be taken into account on sentence. 11 Initially, in pursuing the application for leave to appeal, counsel for the applicant referred to factual matters which, as it turned out, were never proved in evidence before the Sentencing Judge. 12 However, these facts, assuming them to be facts, all tend to support the proposition that the applicant has a long standing problem with alcohol and this was accepted by the sentencing judge in any event. 13 These matters were put in support of a dual submission that his Honour erred in failing to consider whether there were special circumstances within the meaning of section 5(2) of the Sentencing Act 1989 justifying departure from the sentencing ratio referred to in that section and in failing to find that such special circumstances existed. 14 There is no reference in the remarks on sentence to any consideration of that question. Having regard to the manner in which the proceedings were conducted, it seems to me that the most likely reason for this is that it was not put to the sentencing judge that he should consider that question or make a finding. 15 That raises the question whether it was obligatory upon him to consider the question himself in the absence of any argument put before him to that effect. The applicant was represented by experienced counsel. 16 In my opinion his Honour and any District Court Judge should be entitled to rely upon the assistance of counsel and, the matter not having been raised, he can hardly have been expected to undertake the investigations for himself. However, it is not entirely clear, despite the inference I have drawn, that nothing was put to his Honour, and the papers that we have yield little information about what actually happened before his Honour. 17 What I am satisfied of that, on the facts found by his Honour relating to the applicant's subjective circumstances, there was much material which would ordinarily give rise to a finding of special circumstances. 18 In addition, the sentences imposed were, to my mind, having regard to the objective circumstances as well as the subjective, at the very least at the upper end of the range available. 19 It is very difficult in the circumstances and, with the paucity of information before this Court, to reach any firm conclusions but I am satisfied that there was material that was put to his Honour which not only went in mitigation but also went directly to the question of special circumstances and I am of the view that, had his Honour turned his mind to the question, he would have made a finding of special circumstances. 20 In any case, I am satisfied that the material does establish that and that the failure to advert to it represents error on the part of the Sentencing Judge. 21 I propose, therefore, that this Court should restructure the sentences. I propose the applicant be sentenced to a minimum term of two years penal servitude commencing 21 June 1998 and expiring 20 June 2000 and an additional term of two years commencing 21 June 2000(sic) and expiring 21 June 2002. 22 KIRBY: I agree and I specifically agree with the orders proposed and I add this: -- though the Sentencing Judge unquestionably must rely in large measure upon the assistance of counsel, nonetheless, the Judge does have an independent duty to ensure that material which comes before him is dealt with appropriately, whether or not counsel does raise particular issues before him. 23 In this case, in my view, Mr Bulling presented a puzzle. His Honour clearly appreciated that there were certain features associated with his history and presentation which were puzzling. When one examines that history it is clear that alcohol has played a part in many of the convictions which he had. His conduct in presenting himself to the police voluntarily in respect of the matter to which her Honour, Justice Simpson, alluded was itself part of the puzzle, in the context of the conduct which follows soon after. There was further reference to alcohol which had been consumed by the applicant at the time of these offences. 24 All these matters, it seems to me, cast an obligation upon his Honour to consider the issue of special circumstances and for my part I therefore believe, as her Honour has said, that there was error. 25 SIMPSON: The orders of the Court will be as I have proposed.