Citation: R v Sharn Bergan; R v Rick McAndrew [2017] NSWDC 405
Court: District Court of New South Wales
Date: 13 November 2017
Judge: King SC DCJ
Background
Two offenders, Bergan and McAndrew, were sentenced following a defended jury trial arising from events on 2 November 2015 at a youth hostel in Wamberal on the NSW Central Coast. Together with several co-offenders, they attended the premises seeking a man named John Evans, forcing their way through the property and confronting residents and staff.
During the incident, McAndrew physically assaulted a resident's stepfather at the rear of the premises, causing a laceration to his face. The group then kicked in the locked door to a unit occupied by Krystal Evans, entered the room in numbers, ransacked it, demanded information about John Evans's whereabouts, and threatened her with a 24-hour deadline to produce him. One co-offender was armed with a meat cleaver throughout.
The group also threatened the hostel caretaker, Matthew Clarkson, and his partner. A further intimidation incident involving Clarkson occurred later that evening as police were transporting him to Gosford Police Station. The Crown case was run on the basis of joint criminal enterprise throughout.
Legal Issues
- What sentences were appropriate for each offender across the respective offences, having regard to objective seriousness, maximum penalties, and standard non-parole periods?
- What weight should be given to McAndrew's belated guilty plea to the assault charge, entered only at the commencement of trial?
- Whether special circumstances existed to justify departing from the standard non-parole period ratio (that is, whether the non-parole period should be reduced relative to the total sentence).
- How the period each offender had already spent in pre-sentence custody should be accounted for.
Decision
King SC DCJ sentenced both offenders after finding the relevant facts to the criminal standard. The absence of trial transcript presented a factual challenge, and His Honour relied on his own trial notes and the Crown's written summary of facts.
On McAndrew's guilty plea to the assault occasioning actual bodily harm, the court found the plea was very belated, having been entered only on arraignment at the commencement of a trial that otherwise proceeded. Its utility was limited in circumstances where the remaining charges were contested. A discount of approximately 7.5 percent was allowed for that count, and a discount of 25 percent was applied in the indicative sentence ultimately imposed for that offence.
Special circumstances were found in respect of both offenders, justifying adjustment to the standard non-parole period ratio. For Bergan, relevant factors included that this was his first period in custody and that a longer period on parole supervision was needed to support his rehabilitation. For McAndrew, the court specifically noted his age of 57, his first time in custody, and the ongoing health difficulties arising from previous cancer treatment and its after-effects, all of which warranted a longer balance of term on parole.
Aggregate sentences were imposed for both offenders, with each sentence backdated to account for time already served in pre-sentence custody. Bergan had spent 44 days in custody and McAndrew 47 days prior to their respective releases on bail.
Orders Made
Bergan: (Indicative and aggregate sentences are noted in the judgment but the full detail of Bergan's aggregate orders was not reproduced in the text provided.)
McAndrew:
- Indicative sentence for assault occasioning actual bodily harm (Shanahan): 9 months
- Indicative sentence for stalk/intimidate with intent to cause fear of physical harm (Clarkson): 6 months
- Indicative sentence for aggravated break and enter and commit serious indictable offence in company (Evans): non-parole period of 15 months, total term of 30 months
- Aggregate sentence: non-parole period of 17 months, balance of term of 17 months, total sentence of 2 years and 10 months
- Aggregate sentence backdated to 27 September 2017, accounting for 47 days of pre-sentence custody
- Non-parole period to expire on or about 26 February 2019
- Order for release on parole at expiry of the non-parole period
- Full term to expire on 26 July 2020
Key Takeaways
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A guilty plea entered only at the commencement of a trial, where other counts proceed as a defended hearing, attracts a substantially reduced discount for its utilitarian value. The District Court allowed McAndrew only approximately 7.5 percent on the count to which he pleaded, reflecting the limited practical utility of the plea in those circumstances.
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Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were found for both offenders, with the court identifying first-time custody status as a relevant consideration in each case. For McAndrew, ongoing health consequences from prior cancer treatment provided additional grounds for adjustment.
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Where a standard non-parole period applies (as it does under s 112(2) of the Crimes Act 1900), the court is required to state the non-parole period as part of any indicative sentence, even where an aggregate sentence is ultimately imposed.
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Sentencing in joint criminal enterprise cases requires individual assessment of each offender's role and subjective circumstances, even where the facts of the offending are largely shared.
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The absence of a trial transcript, due to a court reporting failure, did not prevent the sentencing court from proceeding. The judge relied on personal trial notes and the Crown's written facts summary, illustrating how courts manage that practical constraint.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter and commit serious indictable offence in company; maximum 20 years, standard non-parole period of 5 years)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (stalk/intimidate with intent to cause fear of physical or mental harm; maximum 5 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (aggregate sentencing, standard non-parole periods, special circumstances)
Cases:
- King v R (2010) NSWCCA 202