Citation: Regina v Bereyne [2003] NSWCCA 153
Court: Court of Criminal Appeal, New South Wales
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. He also sought to have a substantial number of further offences taken into account on two Form 1 documents, including seven additional armed robberies, multiple charges of stealing motor vehicles, stealing, possessing car breaking implements, and two traffic offences.
The offending occurred between mid-December 1999 and the end of April 2000. The applicant used a blood-stained syringe for some robberies and a knife for others, and several offences were committed while he was on bail. The sentencing judge, Luland DCJ, imposed an effective total sentence of 12 years imprisonment with a non-parole period of 8 years, having found special circumstances warranting a departure from the standard statutory ratio.
The applicant, who was 23 at the time of the offences, sought leave to appeal against his sentences. He had a disturbed background, a drug-related criminal history, and a psychological report before the District Court, but no prior convictions for offences as serious as armed robbery.
Legal Issues
- Whether the sentencing judge failed to apply a 25 percent discount for guilty pleas
- Whether the sentencing judge failed to take the psychological report into account
- Whether post-sentence developments (assault, rehabilitation progress, contracting hepatitis C) could demonstrate error in the original sentence
- Whether the absence of a pre-sentence report and the conduct of prior counsel infected the sentence proceedings
- Whether guilty pleas to four robberies the applicant had no independent recollection of should be revisited
- Whether the prior criminal record was given excessive weight, given it did not include robbery offences
- Whether an alleged police assurance about the non-parole period was a relevant sentencing consideration
- Whether the sentencing judge gave adequate weight to the applicant's age, subjective case, remorse, rehabilitation, and the totality principle
Decision
Ground 1: Guilty plea discount
The sentencing judge acknowledged the pleas and their utilitarian value but did not quantify a specific discount. The Court confirmed that, while sentencing judges are encouraged to specify a discount, they are not bound to do so, citing R v Thomson; R v Houlton (2000) 49 NSWLR 383. The history of the proceedings was also such that a 25 percent reduction would not have been warranted in any event. The Court was satisfied the pleas received appropriate weight in the overall sentence.
Ground 2: Failure to consider the psychological report
This ground was rejected on the facts. The sentencing judge expressly referred to the report in his remarks on sentence, and it appeared to have materially informed his finding of special circumstances.
Grounds 3, 5, 7 and 8: Post-sentence developments
The Court noted that matters arising after sentence (including the applicant's rehabilitation through pottery and ceramics, his contracting and treatment for hepatitis C, and his limited family contact) could only be relevant if the appeal were allowed and the Court re-sentenced him. They could not, by definition, establish error in the sentence as originally imposed.
Ground 4: Absence of pre-sentence report and conduct of prior counsel
The applicant had consented to proceed without the pre-sentence report. The Court found it difficult to identify what such a report would have added beyond the comprehensive psychological report already before the court. Nothing in the transcript or remarks on sentence suggested the applicant's case had not been properly presented.
Ground 6: Four robberies committed under the influence of Rohypnol
The applicant had formally admitted these offences by pleading guilty or including them on a Form 1, even acknowledging he had no doubt he committed them despite having no memory. He did not seek to have the matters remitted for trial and placed nothing before the Court to challenge his earlier admissions.
Ground 9: Prior criminal record did not include robbery
The sentencing judge was aware of this distinction and characterised the prior record as one of dishonesty offences. The Court found no indication that the record was given undue weight, while noting it remained a relevant consideration alongside the aggravating feature of offending while on bail.
Ground 10: Alleged police assurance about non-parole period
The Court disposed of this point briefly. Sentencing is a matter for courts, not the police, and any such assurance from the investigating detective could have had no bearing on the sentencing judge's decision.
Overall sentence and totality
Hidden J, with Adams J agreeing, was satisfied that the effective sentence of 12 years fairly reflected the favourable features of the applicant's subjective case and gave adequate effect to the totality principle. An effective non-parole period of 8 years appropriately marked the seriousness of the criminality, and a parole eligibility period of 4 years was sufficient to facilitate rehabilitation.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Sentencing judges are encouraged, but not required, to expressly quantify a guilty plea discount; the absence of a specified percentage does not of itself establish error if the pleas received appropriate weight in the overall sentence.
- Post-sentence developments such as rehabilitation progress or changed personal circumstances cannot demonstrate error in the sentence as originally imposed; they may only become relevant if an appeal is allowed and re-sentencing occurs.
- An applicant's consent to proceed without a pre-sentence report will weigh against a later ground of appeal based on its absence, particularly where a comprehensive psychological report was already before the sentencing court.
- Assurances allegedly given by investigating police about sentencing outcomes carry no legal weight; the determination of sentence remains exclusively a judicial function.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a 12-year effective head sentence with an 8-year non-parole period was within the appropriate range for a series of armed robberies involving weapons, offending on bail, and a prior dishonesty record, even accounting for the applicant's youth and subjective circumstances.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated