Citation: R v Christopher Menouhos; R v Dean Ian Horst; R v Daniel Bezjak; R v James Button [2017] NSWDC 421
Court: District Court of New South Wales
Date: 28 April 2017
Judge(s): King SC DCJ
Background
Four offenders appeared for sentencing following a home invasion at a residential property in Dundas Valley in the early hours of 8 February 2015. The group drove to the address shortly after midnight, expecting to find cash, drugs, or other valuables, and intended to break, enter, and steal while knowing people were inside. They were armed with at least one machete, a screwdriver, and a sawn-off shotgun.
A guest at the property, Brad Harrison, was sitting in his car on the driveway when one of the group ordered him out of the vehicle. Noticing the shotgun, he grabbed for it and a struggle followed. The weapon discharged, wounding him in the right thigh. During the ongoing fight, he was also struck with a machete, resulting in serious lacerations.
Two of the four offenders, Horst and Menouhos, proceeded to trial and were convicted by a jury in October 2016. The other two, Bezjak and Button, pleaded guilty on the second day after the matter was listed for trial, before the jury was empanelled. Menouhos faced additional charges relating to a separate home invasion at a dwelling in Russell Lea.
Legal Issues
- Whether, and to what extent, a guilty plea discount applied to each offender given the lateness of the pleas
- What sentences were appropriate for each offender across multiple offences, including aggravated break, enter and steal (s 112(2) Crimes Act 1900), wounding with intent to cause grievous bodily harm (s 33(1)(a)), and reckless wounding in company (s 35(3))
- How the principle against double punishment (as articulated in Pearce v The Queen) applied when sentencing for multiple offences arising from the same criminal episode
- Whether aggregate sentences were appropriate and, if so, how the non-parole periods should be structured
- Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the total sentence
Decision
The court allowed only a 5% discount for the utility of the guilty pleas entered by Bezjak and Button. The judge characterised those pleas as very belated, noting they were entered on the second day after listing for trial, and that no offer to plead had been made at any earlier stage, even to alternative charges. The same 5% discount applied to the separate charges to which Menouhos pleaded guilty following the jury verdicts, again described as very belated.
The court sentenced each offender on the basis of a joint criminal enterprise. Horst and Menouhos received the heaviest sentences, reflecting their roles in the most serious violence: Horst used the machete to wound Harrison, and Menouhos discharged the shotgun (or was otherwise involved in its use), though the jury acquitted both of the more serious charge of discharging a firearm with intent to cause GBH, instead convicting them of reckless wounding in company. Their sentences incorporated the standard non-parole periods applicable to the most serious charges.
For Bezjak and Button, who were convicted of the aggravated break and enter and reckless wounding offences, the sentences were calibrated to reflect their lesser roles while still acknowledging the gravity of the enterprise and the serious injury to the victim. Bezjak's involvement was characterised in part as an accessory after the fact to the wounding offences.
The court imposed aggregate sentences across the multiple charges for each offender. While the judge did not formally find special circumstances in any case, the non-parole periods were reduced below the standard statutory relationship to ensure extended periods of supervision on parole, with Horst and Menouhos each receiving a minimum of three years on parole. The judge expressly noted this approach was taken given the total lengths of the sentences and the importance of ongoing community supervision to assist reintegration.
Orders Made
• Mr Menouhos sentenced to imprisonment with a non-parole period of seven years and six months and a total term of ten years and six months
• Sentence backdated to 8 October 2015, concurrent as to the last three months of a nine-month non-parole period from a prior sentence
• Non-parole period expires on 7 April 2023
• Balance of term expires on 7 April 2026
• Release on parole subject to conduct while in custody and parole conditions
The judgment records the following sentencing outcomes in part:
- Menouhos: aggregate sentence with a non-parole period of seven years and six months commencing 8 October 2015, expiring 7 April 2023; balance of term expiring 7 April 2026 (partly concurrent with an existing sentence)
- Formal aggregate sentences were also imposed on Horst, Button, and Bezjak, with specific non-parole periods adjusted to allow for extended parole supervision
Key Takeaways
- A guilty plea entered on the eve of trial, with no prior offer to plead to any charge, attracted only a 5% utilitarian discount. The District Court treated the timing as a significant limiting factor on the discount available.
- Under a joint criminal enterprise, all participants are liable for the offences committed in furtherance of the common purpose, though the court differentiated sentences based on individual roles and the degree of violence attributable to each offender.
- Aggregate sentencing does not automatically require a formal finding of special circumstances to justify a reduced non-parole period. The District Court reduced the ratio between the non-parole period and the balance of term to ensure meaningful parole supervision, particularly where total sentences were lengthy.
- Where an offender is already serving a sentence, the commencement date and concurrency of the new sentence's non-parole period require careful calculation; the court noted that the effective total non-parole period for Menouhos was eight years across both matters.
- The principle in Pearce v The Queen, which guards against double punishment for offences arising from a single episode, was identified as relevant to structuring the sentences across the multiple charges each offender faced.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(3), 112(2), 547D
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 32
Cases:
- R v Richards (1981) 2 NSWLR 464
- Pearce v The Queen (1998) 194 CLR 610