Citation: Regina v Perry Jeffrey Bettler [2004] NSWCCA 418 revised - 26/11/2004
Court: NSW Court of Criminal Appeal
Date: 25 November 2004
Judge(s): James J, Adams J, Bell J
Background
The applicant pleaded guilty to two counts of breaking, entering and stealing under s 112(1) of the Crimes Act 1900. Both offences involved stealing ATMs from licensed club premises: the first from the Waratah Rugby Club in September 2000 (containing $44,780), and the second from the Umina Beach Bowling Club in April 2001 (containing $22,960). Four further similar offences were taken into account on a Form 1, involving ATM thefts from other clubs across NSW dating back to November 1999.
The offences were carried out swiftly and methodically. The first was completed in approximately two minutes. The second was interrupted when security officers arrived after alarms were activated, though the applicant had already fled. When police arrested the applicant in July 2000, they found in his possession stockings with eye holes, bolt cutters, jemmy bars, gloves, and in his vehicle, a generator and angle grinder that had been used to open stolen ATMs.
At sentencing in the District Court, Berman DCJ imposed a cumulative sentence totalling four years, with an effective non-parole period of three years. The applicant received a 25% utilitarian discount for his guilty pleas. He then applied to the Court of Criminal Appeal, contending the sentences were excessively harsh.
Legal Issues
- Whether the overall sentence of four years imprisonment was manifestly excessive, having regard to the objective seriousness of the offences and the applicant's personal circumstances.
- Whether the sentencing judge erred in characterising the offences as requiring "a great deal of planning and a considerable degree of skill."
- Whether the sentences adequately accounted for pre-trial custody.
- Whether the cumulative effect of sentences imposed on different occasions for related offences resulted in a total term longer than was appropriate.
- Whether the applicant's family circumstances, including the emotional impact on his children and his wife's gambling problem, warranted a reduction in sentence.
Decision
Adams J (with James J and Bell J agreeing) dismissed the appeal. While the Court accepted that the sentencing judge's description of the offences as requiring "a great deal of planning and a considerable degree of skill" may have overstated the position, it found that this characterisation had no material adverse effect on the outcome. The objective seriousness of the conduct, including six ATM thefts across multiple venues over roughly two years, warranted a significant custodial term absent exceptional circumstances.
The Court considered the applicant's personal background and the psychologist's report, noting that the applicant had no issues with drugs or alcohol, but did have a lengthy criminal history from 1979, including prior theft convictions. Significantly, the offences were committed while the applicant was on a three-year recognizance imposed in connection with an apprehended domestic violence order. The Court accepted that the applicant's stated remorse appeared sincere, but found this had been adequately considered by the sentencing judge.
On the family circumstances argument, the Court held that the impact of imprisonment on the applicant's family, including evidence of emotional problems in his youngest child, was not of a sufficiently exceptional character to justify reducing an otherwise appropriate sentence. The Court also found that the possibility of fresh evidence on this point was not receivable in appeal proceedings of this kind.
The Court found that the sentencing judge had properly accounted for pre-trial custody, and that the structure of the sentences reflected appropriate consideration of the fact that related offences had been dealt with in separate proceedings over time. The sentences were held to be well within the sentencing discretion of the District Court.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a minor overstatement in characterising the planning and skill involved in criminal offences will not constitute a reviewable error if it had no material effect on the sentence imposed.
- A significant custodial term is warranted for a systematic course of commercial burglaries, particularly where the offender has a prior record for theft and was on a recognizance at the time of offending.
- Family hardship, including the emotional impact of imprisonment on dependent children, does not amount to an exceptional circumstance justifying a reduction in an otherwise proportionate sentence.
- Fresh evidence going to personal circumstances is generally not receivable in a sentence appeal of this kind before the Court of Criminal Appeal.
- Where related offences are resolved in separate proceedings before different judges, the sentencing court must still have regard to the overall period of imprisonment that results, and the Court of Criminal Appeal will examine whether that consideration is reflected in the sentences imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1) (breaking, entering and stealing)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (statutory ratio for non-parole periods)
Cases: No specific cases were cited in the portion of the judgment provided.