Citation: Bezjak v R; Button v R [2018] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 17 August 2018
Judges: Hoeben CJ at CL, Fullerton J, Davies J
Background
Four co-offenders participated in an armed home invasion in the early hours of 8 February 2015. The group broke into a residential property expecting to find cash, drugs, or other valuables, armed with machetes, a screwdriver, and a sawn-off shotgun. The occupant confronted near his car was shot twice and struck with a machete, sustaining serious injuries. An occupant inside the house was robbed at machete-point.
Two of the co-offenders, Button and Bezjak, pleaded guilty on the second day fixed for trial. Button pleaded guilty to aggravated break and enter in company and two counts of reckless wounding in company. Bezjak, who had acted as driver and did not enter the premises, pleaded guilty to aggravated break and enter in company and two counts of being an accessory after the fact to reckless wounding in company. The other two co-offenders, Menouhos and Horst, contested the charges and were convicted after trial.
The District Court sentenced Button to an aggregate of eight years with a non-parole period of five years and six months, and Bezjak to an aggregate of seven years with a non-parole period of five years. Both applicants sought leave to appeal their sentences to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge failed to apply any discount for Button's guilty plea to the reckless wounding counts
- Whether a 5% discount for the guilty plea entered on the second day of trial was appropriate, or whether it was erroneously low
- Whether the sentencing judge failed to take into account Button's deprived background when assessing his moral culpability
- Whether the sentencing judge failed to give effect to his own finding of special circumstances in setting Bezjak's non-parole period
- Whether Bezjak's sentence offended the parity principle when compared with co-offenders' sentences
- Whether both sentences were manifestly excessive
Decision
Button's appeal. The Court found error in the sentencing judge's treatment of the plea discount. The indicative sentences for Button's reckless wounding counts were identical to the indicative sentences imposed on Horst and Menouhos for the same offence, despite those co-offenders having gone to trial and received no plea discount. This indicated the sentencing judge had, in effect, given no discount for Button's guilty plea on those counts. The Court also accepted that a 5% discount for a plea entered on the second day of trial was, on examination, erroneous when set against the applicable principles from R v Thomson; R v Houlton. The deprived background ground was not separately made out, but error was established on other grounds. The Court resentenced Button to an aggregate of seven years and six months with a non-parole period of five years.
Bezjak's appeal. The Court accepted that the sentencing judge had identified special circumstances warranting a variation of the standard statutory ratio between sentence and non-parole period, but had not actually given effect to that finding: the non-parole period imposed remained at the statutory ratio. That constituted a discrete error. Bezjak also raised parity, and the Court examined whether differences in sentence structure between co-offenders gave rise to a justifiable grievance. Having regard to Bezjak's lesser role as driver and the recalibrated sentence for Button, the Court concluded Bezjak's sentence required reduction. The Court resentenced Bezjak to an aggregate of six years with a non-parole period of four years, with indicative sentences adjusted accordingly.
Orders Made
Button:
- Leave to appeal granted
- Appeal allowed
- Sentence imposed by Judge King SC on 28 April 2017 quashed
- Resentenced to an aggregate of seven years and six months' imprisonment, commencing 9 July 2016, expiring 8 January 2024, with a non-parole period of five years expiring 8 July 2021
Bezjak:
- Leave to appeal granted
- Appeal allowed
- Sentence imposed by Judge King SC on 28 April 2017 quashed
- Resentenced to an aggregate of six years' imprisonment, commencing 29 April 2015, expiring 28 April 2021, with a non-parole period of four years expiring 28 April 2019
Key Takeaways
- Where a sentencing judge identifies special circumstances justifying a variation to the statutory ratio between head sentence and non-parole period, a failure to actually reflect that finding in the non-parole period imposed constitutes appellate error.
- Comparing indicative sentences against those of co-offenders who went to trial can reveal, as it did here, that a guilty plea discount was in substance not applied, even where the judge stated that a discount had been given.
- A 5% plea discount for a plea entered on the second day of trial was found to be insufficient in the circumstances, with the Court of Criminal Appeal applying the principles in R v Thomson; R v Houlton when assessing the appropriate quantum of reduction.
- The parity principle requires that differences in sentences between co-offenders be explicable by reference to legitimate distinguishing factors; differences in the method by which indicative sentences are accumulated and ratios applied may give rise to a justifiable grievance.
- Resentencing on appeal involves a fresh assessment, with the appellate court taking into account the co-offenders' sentences, the roles of each participant, and the applicable legislative framework.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33, 35, 112, 350
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Caristo v R [2011] NSWCCA 7
- Hughes v R [2018] NSWCCA 2
- Jiang v R [2010] NSWCCA 277
- BR v R [2015] NSWCCA 255
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 368
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Tuivaga v R [2015] NSWCCA 145