Citation: Regina v Bereyne [2003] NSWCCA 153
Court: New South Wales Court of Criminal Appeal
Date: 6 June 2003
Judge(s): Hidden J; Adams J
Background
The applicant pleaded guilty in the District Court to three charges of armed robbery, with a substantial number of further offences, including additional armed robberies and motor vehicle thefts, taken into account on two Form 1 documents. The robberies were committed between December 1999 and April 2000, during which the applicant used a blood-stained syringe or a knife. Several offences were committed while he was already on bail for other robberies.
The sentencing judge (the late Luland DCJ) imposed an effective total sentence of twelve years imprisonment with a non-parole period of eight years. The judge found special circumstances warranting a departure from the standard statutory ratio between head sentence and non-parole period, resulting in an effective non-parole period of two-thirds of the total sentence.
The applicant sought leave to appeal against the sentences on a range of grounds, initially without legal representation. A solicitor ultimately appeared, without fee, to assist him at the adjourned hearing.
Legal Issues
- Whether the sentencing judge failed to apply a 25 percent discount for the guilty pleas
- Whether the sentencing judge gave adequate weight to the psychological report tendered on the applicant's behalf
- Whether matters arising after sentencing could demonstrate error in the original sentence
- Whether the absence of a pre-sentence report, and the manner in which sentence proceedings were conducted, gave rise to appealable error
- Whether the applicant's guilty pleas to certain offences should be revisited on the basis that he had no recollection of committing them
- Whether an alleged police undertaking about the non-parole period was relevant to the sentencing exercise
- Whether the sentence adequately reflected the applicant's age, subjective circumstances, remorse, rehabilitation prospects, and the principle of totality
Decision
The Court rejected the submission that the sentencing judge had failed to apply a 25 percent discount for the guilty pleas. Although quantifying such a discount is encouraged, courts are not bound to do so. The Court was satisfied that the pleas had been given appropriate weight in the overall sentence, and in any event the history of proceedings would not have justified a full 25 percent reduction.
Several grounds relied on post-sentencing matters, such as the applicant's rehabilitation through pottery and ceramics, his health issues, and his limited family contact. The Court noted these could only be relevant on a resentencing, and were incapable of demonstrating error in the sentence as originally imposed.
The ground concerning an alleged police undertaking about the non-parole period was dismissed firmly. The Court observed that sentencing is a matter for courts, not police, and any such undertaking by a detective could have had no bearing on the judge's decision.
On the broader grounds of totality and subjective circumstances, the Court found that the effective sentence of twelve years fairly reflected the applicant's favourable personal factors while remaining proportionate to the seriousness of the offending. An eight-year non-parole period appropriately reflected the criminality involved, and the four-year period of parole eligibility was considered sufficient to support rehabilitation.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge is not required to specify a numerical discount for a guilty plea, provided the plea is given appropriate weight in the overall sentence, consistent with the approach confirmed in R v Thomson; R v Houlton (2000) 49 NSWLR 383.
- Post-sentencing developments, such as rehabilitative progress or health changes, cannot establish error in the original sentencing exercise and are only relevant if an appeal is allowed and resentencing occurs.
- An alleged undertaking by a police officer about the likely non-parole period carries no weight in the sentencing process; the determination of sentence is exclusively a judicial function.
- No error was established in the sentencing judge's treatment of the applicant's subjective case, including his age, disturbed background, and psychological report, all of which were expressly acknowledged in the remarks on sentence.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an effective sentence of twelve years with an eight-year non-parole period was within the available range for a course of armed robbery offending involving weapons, abuse of bail, and a pattern of serious criminality.
Legislation and Cases Referenced
Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
Legislation:
- No specific legislation was cited in the text provided.