New South Wales Court of Criminal Appeal CITATION: Bunce v Regina [2009] NSWCCA 281 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 9 November 2009 JUDGMENT DATE: 27 November 2009 JUDGMENT OF: Allsop P at 1; Howie J at 2; Hislop J at 23 DECISION: 1. The application for leave is granted; 2. The appeal is dismissed. CATCHWORDS: CRIMINAL LAW - Appeal against sentence - murder - whether applicant sentenced on wrong factual basis CATEGORY: Principal judgment PARTIES: Gareth BUNCE (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/3466 COUNSEL: In person (Applicant) D M L Woodburne SC (Respondent) SOLICITORS: In person (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 1215/07 LOWER COURT JUDICIAL OFFICER: Price J LOWER COURT DATE OF DECISION: 11 May 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Bunce [2007] NSWSC 469 IN THE COURT OF CRIMINAL APPEAL 2006/3466 ALLSOP P HOWIE J HISLOP J 27 November 2009 Gareth BUNCE v REGINA Judgment 1 ALLSOP P: I agree with Howie J. 2 HOWIE J: On 11 May 2007 Price J sentenced the applicant for an offence of murder to a term of imprisonment of 24 years dating from 23 May 2005 with a non-parole period of 18 years. The applicant is eligible for release to parole on 22 May 2023: see [2007] NSWSC 469. On 10 February 2009 the applicant sought leave to appeal from that sentence and the Registrar granted an extension of time. The applicant was unrepresented on the hearing of the application. 3 It is unnecessary to restate in detail the facts upon which the Judge sentenced the applicant as they are very fully set out in his Honour's sentencing remarks that have been published and are readily available on the Court's website. On 18 March 1997 the applicant murdered the deceased, the stepsister of his wife. The applicant pleaded guilty to the murder on 16 March 2007 before Barr J, that is 10 years, almost to the day, after the killing. There was for a short period some question about the integrity of the plea of guilty as the applicant made the plea unexpectedly when he was arraigned without the legal representative who had carriage of the matter being present. However, a short time later the plea was confirmed and he was sentenced on the basis of the plea on arraignment. 4 The history of the matter is unusual. The applicant was initially charged with the murder on 29 December 1999 and remanded in custody. But he was released on 28 September 2000 when the Director of Public Prosecutions determined not to proceed further. On 12 September 2005 the applicant made contact with a journalist for a television programme, A Current Affair, and at a meeting between the two on 20 September 2005 confessed to the killing. The two travelled to Brisbane with another journalist from the programme and a conversation between them on 21 September was covertly recorded. Further interviews that day were filmed with the applicant's consent. 5 There was a dispute before the Judge as to the facts leading up to the killing and the applicant gave evidence. However his Honour rejected his account and this gives rise to the applicant's complaints about the sentence imposed upon him. He contends that the version he gave in evidence was the truth and should not have been rejected. He submits in effect that, on his version of the facts, the sentence is excessive. The applicant wrote a number of letters and written submissions to the Court to this effect and addressed the Court orally raising the same complaint. 6 The deceased was found in her home by one of her sons then aged 7 when he returned from school. She was lying naked on his bed on her back in a crucifix position. There were ligature marks on her ankles and wrists but no rope or cord was found. There was no apparent injury to the deceased's head or neck. The applicant's fingerprints were found on a newspaper located in the lounge room and his DNA could not be excluded from a swab taken from her vagina. The applicant told police that he was at work at the time. No cause of death could be determined from an autopsy. 7 The facts leading up to the killing were briefly as follows. The applicant and the deceased, when she was aged 15, had participated in a pornographic film while she was living with the applicant and her stepsister. The deceased's mother discovered the film. Some years later the applicant's wife found the film. She remonstrated with him about it but remained in the marriage. The deceased's mother destroyed the film in 1990. 8 In April 1991 the applicant was charged with offences relating to a robbery committed on 1 May 1989. At the sentencing hearing for those offences he gave evidence that his wife and her two sisters, including the deceased, had blackmailed him into committing the offence. Specifically he maintained that the deceased had threatened to make allegations that he had forced her into participating in the pornographic film. He stated that he had been to the Merrylands Police Station in 1985 and the Hornsby Police Station in 1986 to complain about a similar blackmail threat. Evidence was given before that sentencing judge that there was no record of any such complaints. The applicant received a custodial sentence for the robbery and an appeal to this Court was dismissed. 9 The Crown alleged that in 1993 the applicant had sent an anonymous letter to the deceased indicating that she had a claim to part of a large amount of money that had been invested. The deceased consulted an accountant and was told that he believed it to be a hoax. In evidence before Price J the applicant denied he was the author. The Judge for reasons he gave, was not satisfied that the applicant had typed the letter. However, he was satisfied beyond reasonable doubt that the applicant had sent it to the deceased, although not as a part of a plan to kill her. His Honour relied largely upon statements made by the applicant to the journalists and others in coming to this finding of fact. 10 The Crown case was that the applicant had formed an intention to kill the deceased before he went to her house on the day of the killing. The Crown relied chiefly upon statements made by the applicant to the journalists and others to the effect that he killed her as an act of revenge as he blamed her for ruining his life. The applicant's account was that he did not go to the house intending to kill the deceased but this intention arose when she wanted him to commit another robbery in the course of which two persons would be shot to death. In effect the applicant's case was that he killed the deceased as the least of three evils he faced: he had to do the robbery, or she would allege that his children had committed sexual offences, or he had to kill her. 11 Some days before the killing the deceased attended a birthday celebration for the applicant's son. There they arranged to meet and discuss the money referred to in the 1993 letter. Two days before her death the deceased consulted her accountant and told him that she would need his assistance because of money she was shortly to receive. 12 As a result of their meeting the applicant went to the deceased's home on the day of the killing. They had decided to make another pornographic film. It was the Crown's case that this was a pretence on the part of the applicant designed to put the deceased in a vulnerable position by tying her to the bed as part of a bondage scenario and then killing her. The applicant admitted that he had killed her while she was bound and by using a method that he had learned about while in prison. However, he denied that this was his intention before he arrived at the house but arose after she had attempted to blackmail him into committing an armed robbery and placed two guns into his hands. 13 Price J rejected the applicant's account. He decided that the accused had determined to kill the deceased before they met at his son's birthday party and used the letter he had sent to her in 1993 concerning her potential share in a large sum of money to induce her to meet him again. His Honour found: "The prisoner encouraged the deceased in 1997 to believe that the contents of the letter were true and he would help her to obtain the money. He used this interest in the letter to assist the deceased in feeling comfortable with him. It was at that time part of his careful plan to kill her. As he told [the journalist] "the letter was part of the jigsaw and that you can never do too much planning". 14 The sentencing remarks contain extensive reasons for the findings his Honour made adverse to the applicant as to the circumstances leading up to the murder. He found that the killing "displays a high degree of criminality" and that in conversations with the journalists and others the applicant "demonstrated callousness for the crime". When considering whether the murder warranted a sentence of life imprisonment, his Honour stated: "In the present case, I have found that the prisoner carefully planned the killing and was motivated by revenge. The killing was an act of great cruelty that the deceased, having voluntarily submitted to being bound and gagged, found that she was being strangled. The murder, however, was not accompanied by violence that was prolonged, gratuitous or wanton." 15 It had been put forward on the applicant's behalf to Price J that the applicant had revealed his responsibility for the killing and made his plea of guilty because of concerns for the deceased's son who had found the body. He had indicated such regret in an interview with a psychologist. But his Honour rejected this submission, again largely relying upon statements made by the applicant to other persons. Price J stated: "I am not satisfied on the balance of probabilities that the prisoner's expression of remorse for [the deceased's son] is anything more than of recent origin. It was not a reason for his voluntary disclosure of his offences to the journalists. As I have previously mentioned, the prisoner's lack of repentance for taking the life of the deceased is egregiously evident during those interviews. For whatever reason the prisoner made his voluntary disclosure it was not motivated by remorse or contrition. I conclude that any remorse that the prisoner presently has the offence is confined to the discovery of the deceased body by [the son]. The prisoner does not appreciate the enormity of his crime." 16 In his grounds of appeal on his Notice of Application for leave to Appeal, the applicant wrote (spelling and grammatical errors corrected): "1. On Summing up the Judge said 'I do not believe you'. 2. I stated in 1991 in Court that I had been blackmailed into doing a robbery and police went around and questioned my ex-wife, Kelly Van Der Schoot and found nothing. They did not question [the deceased], Marie, or Corey Wagner. Then in March 2000 Helen Wagner, Kelly's mother and the stepmother to the other 3 said she destroyed the video tape. Now that explains why [the deceased] tried to use my children in the blackmail. I had had enough in 1989 with the blackmail since it has happened twice before and since the Court nor police could stop [it]. It was my word against a family of six who did blackmail men Well when I saw the guns [the deceased] put in my hands and the smile on her face telling me I was to [shoot] 2 people or more, or my boys would end up in jail with the charge that I was facing at that time and she had set me up using her girlfriend and that girl's daughter. Well if I had not told anybody about it how did she know? Well to say I was mad is an understatement. I had asked for help 2 times before once at Merrylands, once at Hornsby only to be told to get some proof. Well I wish I could go back in time and stay away from her and maybe at least 2 others would be dead. Well I lost my car, house and job because of the family I got involved with was the wrong family. My kids are safe because of what I did. Now [the deceased's] boy does not have questions in his mind which is the only reason I stepped up and told [all]. It is fine for me to protect my kids and if this happened to them I [would] want the answers for them. If I had walked away and the robbery did happen then I would have been held to blame. Yes or no? I had had enough and she [pushed] me a little too far. So why 24 years/18 years? Legal aid told me not to say this or that. Legal Aid say to me in the legal visit section at the Court, after the Judge stopped me for lunch, that I have said enough and I was [not] going to say anything more. Legal aid told me to plead not guilty. I wanted to plead guilty from the start. This family played me not anybody else." 17 The applicant wrote letters to the Registrar of this Court dated 17 April 2009 and 17 August 2009. In the latter he raised much the same complaints and concerns as set out in the grounds of appeal. He raised other allegations against the deceased, including, for example, that she was intending to leave her family with the money obtained from the armed robbery that she wanted the applicant to carry out. He stated that after the killing he had spent four and a half years looking after his father who was suffering from cancer. After his father's death he went to confess the murder to the police at Eastwood but was told to go to another police station. As a result he contacted the television programme. 18 In his oral submissions to this Court he repeated the complaints and allegations he had raised in his written material. 19 This Court is a court of error. It does not review findings of fact made by sentencing judges unless it was not open on the evidence for the judge to make those findings. The applicant's only complaint is in effect that he gave evidence on oath and Price J did not believe him. But as has already been indicated, the Judge gave extensive remarks on sentence in which he reviewed the evidence both in the Crown case and the evidence given by the applicant. The applicant raises no specific error in his Honour's approach. Having read the sentencing remarks, the applicant's evidence before Price J and the material placed before this Court, it is clear that his Honour's findings were open to him and this Court cannot overturn them. 20 The applicant's complaints about his legal representation have no merit. The Judge gave him the benefit of a discount for his plea of guilty based upon the plea at arraignment. In fact he awarded a discount of 25 per cent, which was, with respect, generous. It does not appear from the transcript that the applicant's evidence was interrupted by a luncheon adjournment, but in any event the applicant does not indicate what addition to his evidence would have occurred if he had given further evidence. 21 In light of the facts found by his Honour, the sentence imposed was well within his discretion notwithstanding that no standard non-parole period applied and that his Honour was taking into account the sentencing range at the time of the commission of the offence. 22 I propose that the Court orders that the application for leave is granted but the appeal is dismissed. 23 HISLOP J: I agree with Howie J. ********** 30/11/2009 - Edit error - Paragraph(s) 6 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.