Bezjak v R; Button v R

[2018] NSWCCA 178

Court of Criminal Appeal (NSW)|2018-04-18|Before: Hoeben CJ, Davies J, Fullerton J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-04-18

Before

Hoeben CJ, Davies J, Fullerton J

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
FULLERTON J: I agree with Davies J.
DAVIES J: The applicant James Button pleaded guilty, on the second day fixed for the trial, to the following offences: (1) Aggravated break, enter and commit a serious indictable offence in company contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years' imprisonment and there is a standard non-parole period of five years. (2) Reckless wounding in company (involving a machete) contrary to s 35(3) of the Crimes Act. The maximum penalty for this offence is ten years' imprisonment and there is a standard non-parole period of four years. (3) Reckless wounding in company (involving a shotgun).
On the same day, the applicant Daniel Bezjak pleaded guilty to the following offences: (1) Aggravated break, enter and commit a serious indictable offence in company. (2) Accessory after the fact to reckless wounding in company (involving a machete) contrary to s 35(3) and s 350 of the Crimes Act. The maximum penalty for this offence is five years' imprisonment. (3) Accessory after the fact to reckless wounding in company (involving a shotgun).
Both applicants were sentenced by his Honour Judge King SC on 28 April 2017. In relation to the applicant Button his Honour imposed an aggregate sentence of eight years' imprisonment commencing 9 July 2016 and expiring 8 July 2024 with a non-parole period of five years and six months expiring 8 January 2022. In relation to the aggravated break and enter charge, His Honour specified an indicative sentence of five years and eight months with a non-parole period of four years and three months and, in relation to the reckless wounding charges, his Honour specified an indicative sentence of four years with a non-parole period of three years.
In relation to the applicant Bezjak his Honour imposed an aggregate sentence of seven years' imprisonment commencing 29 April 2015 and expiring 28 April 2022 with a non-parole period of five years expiring 28 April 2020. His Honour specified an indicative sentence for the aggravated break and enter charge of five years and four months with a non-parole period of four years and for each of the offences of being an accessory after the fact his Honour specified an indicative sentence of 18 months.

[3]

Facts of the offending

Shortly after midnight on 8 February 2015, the four co-offenders (Bezjak, Button, Horst and Menouhos) and one other unidentified male, participated in a joint criminal enterprise to go to a property at 4 Adamson Avenue to break, enter and steal in circumstances of aggravation, the circumstance of aggravation being that they knew there were persons inside the property. The offenders expected cash, drugs or other valuables to be at the premises.
The offenders were armed with at least one or more machetes, a screwdriver and a sawn-off shotgun. The offenders arrived at the house in a white Mitsubishi Lancer - QSC-646 - registered to Mr Bezjak. His Honour accepted that Mr Bezjak was the driver of the vehicle transporting the co-offenders to and from the premises. He had remained in the vehicle or nearby and was not physically present at 4 Adamson Avenue at the time of the home invasion.
When the offenders arrived, Brad Harrison was sitting in his car talking to his wife on the phone. He observed the shadow of a figure (the offender Horst) passing by and moving towards the front door. He then heard a tap on the window and observed three males, one of whom told him to get out and go into the house. That male was holding a sawn-off shotgun.
Mr Harrison got out of the car and attempted to grab the shotgun and use it to defend himself from three attackers. A tussle ensued in the course of which the shotgun was fired on two occasions injuring Mr Harrison. He also suffered wounds after being struck with a machete wielded by one of the four offenders at the premises. There was no specific evidence that Mr Horst was the one to inflict those injuries on Mr Harrison, as there may have been more than one machete. His Honour found that Mr Menouhos and Mr Button were the two offenders involved in the struggle with Mr Harrison, along with an unidentified fifth offender. Lawfully intercepted calls obtained later by Police revealed that Mr Button could be excluded from being the male who entered the premises with a machete.
As a result of the injuries he sustained during the attack, Mr Harrison was later taken to hospital with the following wounds: a deep, penetrating wound to the right shoulder; a deep laceration to the left wrist exposing tendons; pellet holes to the right thigh; and superficial abrasions to his forehead, chest, back, knees and ankle.
During the struggle with Mr Harrison, one of the offenders entered the house brandishing a machete and asked one of the occupants, Aaron Hunter, to "Give me your shit". There was no blood on the machete. The sentencing judge found beyond a reasonable doubt that the intruder was Mr Horst. After a brief wrestle with Mr Horst, Mr Hunter sought refuge in a bedroom with his almost 8 month pregnant girlfriend. Mr Horst took Mr Hunter's G-Star bum-bag which contained $700 in cash, and a sterling silver necklace which Mr Hunter was wearing around his neck. Mr Hunter saw Mr Horst run off with three other men. Mr Hunter told police that a number of months earlier he had had an issue with a man named Gavin Black who lived at the unit complex at 31 Sturt Street.
Two black bags from Platypus Shoes were left on the grass by the offenders. Police inquiries and CCTV footage taken from Westfield Parramatta during the evening of 5 February 2015 confirmed that Gavin Black purchased a pair of shoes from the Platypus store. Mr Black is seen in the footage to be carrying a black coloured Platypus bag.
CCTV footage taken during the afternoon before the robbery showed the offenders attending 31 Sturt Street, and then leaving shortly prior to the offences. Menouhos was seen carrying a black Platypus bag which appeared to contain something. They returned to the unit complex approximately 20 minutes later. Horst was carrying a black bum bag. The CCTV footage also showed a number of the offenders wearing gloves at various times, and disguising their faces with bandanas and hoods pulled over their heads. It was also clear from the footage that the offenders had changed their clothing either at Mr Black's premises or outside prior to attending at 4 Adamson Avenue.
The further s 112(2) offence in respect of which Mr Menohous was also sentenced concerned premises at Hampden Road in Russell Lea. Mr Button was also involved in this offence. On 23 May 2016, Sides QC DCJ sentenced Button to a two year Intensive Correction Order in respect of that offence.

[4]

Remarks on Sentence

His Honour found that the offences were clearly organised and planned in advance in that they involved obtaining a number of weapons for use in the home invasion, the purpose of which was to obtain drugs, money or other valuables. His Honour noted the different charges that Mr Bezjak was facing and that his role was limited to driving the four other persons to the premises, driving them away, and being an accessory after the fact. His Honour noted that this placed Mr Bezjak in a significantly different position from each of the other offenders in terms of moral culpability.
His Honour found that there was clearly some degree of planning during the course of the preceding day, involving as it did the changing of clothing at various times, the gathering together of the various offenders, and the obtaining of weapons from wherever they may have come - that is, either from Mr Black's flat or from any vehicle in the vicinity when the offenders departed to travel to the Adamson Avenue premises.
In relation to matters of aggravation for the s 35(3) offences, his Honour identified the machete and the shotgun as weapons, the significant degree of violence and substantial risk of injury in respect of the machete, and the injuries from the use of the shotgun, although they were relatively superficial and did not result in any significant ongoing disability.
In relation to the offences of being an accessory, his Honour noted that Mr Bezjak's assistance enabled the offenders to evade justice for a period slightly in excess of two months. His Honour noted that Mr Bezjak's motivation for committing those offences was his own criminal association with the other offenders regarding the s 112(2) offence.
His Honour assessed each of the offences against ss 33(1)(a), 35(3) and 112(2) as approaching the mid-range of objective seriousness.
His Honour found that Mr Bezjak must have known of the presence of a weapon at least by the time the shotgun was discharged and the other offenders returned to the vehicle. By that time he must have been aware that a serious offence was highly likely to have been committed apart from any break and enter. In that way the objective seriousness of his accessory offence also approached the mid-range of objective seriousness.
His Honour found that the pleas of guilty entered by Mr Bezjak and Mr Button were very belated. He noted that there was some variation made to the original charges but the applicants had not, prior to the discussions with the Crown on the first day fixed for the trial, offered a plea to any counts. On that basis, his Honour allowed a discount of 5% for the utility of the plea in respect of each of the charges for Mr Bezjak and Mr Button.

[5]

James Button

His Honour noted that Mr Button did not give evidence on sentence. Mr Button was 27 years of age at the time of the offending and was aged 29 at the time of the sentence.
The information the sentencing judge had in relation to Mr Button came from a pre-sentence report dated 16 November 2016, a psychological report from Danielle Hopkins dated 15 November 2016 and Mr Button's criminal history. His Honour summarised the matters that he found in respect of Mr Button in the way following.
He was one of six children born to his parents. He was raised in Rydalmere in a Department of Housing residence in a high crime area. He was raised in an atmosphere of hostility due to his father's over-consumption of alcohol and resultant domestic violence towards his mother. Lacking a male role model in his father, he is said to have sought older male role modelling through his peers.
He had a distant relationship with his mother because she also had a problem with excessive consumption of alcohol. He moved at different times between various family members including residing with an aunt at the age of 18 years. However, she was involved in illicit substance use. His maternal cousins and uncles were in and out of gaol frequently.
He was a low-achieving student academically, having some learning issues which led to him being bullied by other students resulting in retaliation by him that led to several suspensions. He left school of his own volition part way through Year 8 and was sporadically employed by his father between the ages of 15 and 17. From the age of 19 to 24 he did some intermittent cleaning and secured two positions in steel installation and fixing. Otherwise he had been unemployed and supported through Centrelink payments since leaving school.
He told the pre-sentence officer that he was a member of an outlaw motorcycle gang but the psychologist's report referred to him being an affiliate. He told the psychologist that he was undecided about his future with the outlaw motorcycle club. The psychologist said that his association with the club appeared to fulfil some of his needs for esteem and belonging. His partner, who was then pregnant with his child, continued to be supportive of him.
When he was aged around 25 years he was hospitalised due to concerns about his mental health. He attested to minimal alcohol use throughout his life but smoked cannabis daily at a level of up to seven grams between the ages of 17 and 25. He used ecstasy weekly at the rate of two pills per session between the ages of 18 and 25, and used cocaine twice weekly between the ages of 18 and 24 and thereafter daily until he was 25 years of age.
He claimed to have ceased using all of those drugs after he was hospitalised for mental health symptoms.
He was assessed in terms of intelligence on the verbal scale at a borderline level of ability and on the non-verbal scale within the low average range. His full scale intellectual functioning scored in the low average range.
He informed the pre-sentence officer that he had been diagnosed with anxiety, depression and bipolar disorder, but that he was not currently on medication. The sentencing judge noted that there was nothing in the psychological report which would indicate that he had been diagnosed as being bipolar.
His Honour noted that in the pre-sentence report the officer concluded that the offender had the potential to inflict harm towards others but was willing to participate in intervention to address his offending behaviour. He told the officer that he agreed with the facts of the offending but said that he did not have a weapon in his possession, and was not aware that the co-offenders had weapons. He claimed that he attended as a lookout for the co-offenders. He was assessed at a low to medium risk of reoffending.
His Honour concluded that it was exceedingly difficult to accept that Mr Button was not aware of at least others having weapons, if he himself did not in fact have one, or that he was simply attending as a lookout where his Honour had found beyond reasonable doubt that he was one of the three persons who physically assaulted Mr Harrison with those persons using a shotgun and a machete.
His Honour found that there was no acceptable material that would allow the Court to make a finding that the offender was remorseful for his conduct rather than merely regretting it, and regretting the situation that he found himself in, particularly in circumstances where no plea was entered until the second day of the scheduled trial.
His criminal history disclosed that in April 2007 he was convicted of the offence of aggravated break and enter and commit a serious indictable offence in company. He was given a two year suspended prison sentence. His Honour noted that for the second s 112(2) offence committed with Mr Menouhos at Hampton Road, Russell Lea in April 2015, the applicant had been sentenced to a two year Intensive Correction Order. His Honour noted further that the Russell Lea offence occurred two months after the offence at Adamson Avenue. Taking into account the three offences of the same type, his Honour found that the offending indicated a contemptuous disregard for the criminal law.
His Honour found that despite evidence that the applicant had a difficult upbringing, those matters did not warrant the Court considering that his moral culpability had been in any way reduced by that background.

[6]

Daniel Bezjak

Mr Bezjak did not give evidence at the sentence hearing. He was aged 21 years of age at the time of the offending and 23 years at the time of sentence.
The information available to the sentencing judge came from a pre-sentence report dated 15 February 2017, a psychological report from Susan Hawil dated 3 February 2017, a letter from the Chaplain at Long Bay Correctional Centre and a letter to the Court from Mr Bezjak dated 20 February 2017. Some brief oral evidence was given by two persons who knew Mr Bezjak but their evidence did not add much to the other evidence.
As far as Mr Bezjak's background was concerned, there was some conflict between what appeared in the pre-sentence report and the report from the psychologist. According to the psychologist's report Mr Bezjak was born in Australia and had a Russian background. According to the pre-sentence report he was born in Israel, migrated to Australia in 1995 and became an Australian citizen in about 1998. His Honour did not regard the discrepancy as being of any significance, but the failure to clarify the matter is unsatisfactory.
Mr Bezjak had an unstable upbringing because his mother had multiple partners. He was the eldest of three children but his parents separated when he was six months of age. He has had no contact with his biological father. He described his relationship with his mother and siblings as supportive. However, he had to move homes on multiple occasions during his childhood and adolescence, and he resided on a number of occasions in refuges following breakdowns in his mother's relationships. He was suspended from high school during Year 10 because he lacked motivation. He did not return to formal education. He had sporadic employment, with two years being the longest period of continuous employment. He had worked as a scaffolder, a painter and a a factory hand/blind installation person.
He started binge drinking at the age of 16, and by the age of 17 he was consuming up to one bottle of spirits daily, which decreased to what the author of the pre-sentence report described as "recreational drinking" at 20 years of age.
He had a history of illicit substance use commencing with cannabis when he was 16, and he became a daily user by the age of 17, and from that age consuming an array of illicit substances over a four month period. He continued to take a variety of illegal drugs until he went into custody at the age of 21. He told the pre-sentence officer that at the time of committing the offence he had been drinking during the evening, and he claimed that he was still under the influence of methamphetamines from the evening prior to the event. Crystal methamphetamine was his drug of choice. His use of it increased until he was using it daily for a period of two months. Thereafter he was using it on and off for a period of two years. He said that he had not slept for approximately 48 hours prior to the time of the offence.
What was recorded in the pre-sentence report is to be contrasted with what he told the psychologist. He denied to her any history of alcohol misuse.
The psychologist diagnosed him as having substance use disorder. The psychologist said that his behaviour on the day of the offence should be viewed in the context of his psychological symptoms which caused impairment to his capacity for reasoned evaluation of options open to him. She said that his substance use may have further impaired his judgment and decision making.
The psychologist carried out a number of tests on Mr Bezjak. The results of those tests indicated an average non-verbal intelligence and that he suffered from mild levels of depression and low levels of anxiety. She considered, using the Level of Service Inventory-Revised, that Mr Bezjak fell into the low range for re-offending.
The psychologist observed that there was no history of juvenile criminal offences. That observation was made despite the fact that she had been given Mr Bezjak's bail report which disclosed that in September 2011 he was sentenced to a nine month control order for robbery in company, and in November 2011 he was given a s 33 bond for receiving stolen property and 12 months' probation for assault occasioning actual bodily harm in company. Finally, in August 2012 he was given 50 hours of community service for being part of an affray as an adult.
His Honour noted the psychologist's conclusion that there was a direct link between the offences and Mr Bezjak's mental condition arising from his substance use which resulted from the psychological trauma stemming from his childhood and adolescent years. His Honour noted that Mr Bezjak did not give evidence at the sentence hearing, and that there was nothing before the Court other than the assertions he made to the psychologist about his condition on the day of the offence. His Honour said that while he had no difficulty in accepting that Mr Bezjak had from time to time in the past abused prohibited drugs, there was no independent evidence of his being in any way substantially affected on the date of the offence.
His Honour made reference to Mr Bezjak's letter to the Court but said that he placed very little weight on such letters when an offender was not prepared to give the evidence on oath and be cross-examined. His Honour noted that in the letter Mr Bezjak endeavoured to distance himself by way of limited knowledge of the co-offenders prior to the evening of the offences. He also said in the letter that he believed ice and alcohol greatly impaired his judgment.
His Honour was unable to find on the limited evidence available that there was evidence of genuine remorse and contrition. He accepted on the basis of his limited past criminal history that there was a medium risk of re-offending.
His Honour thought that the plea was some evidence of remorse, but that it was limited because of the lengthy period prior to entering the plea.

[7]

Ground 1: Discount for the plea in relation to counts 2 and 3

Mr Button was sentenced on count 3 for reckless wounding in relation to the shotgun. Mr Horst and Mr Menouhos were found guilty on the alternative count of reckless wounding in relation to the shotgun. Accordingly, those three persons were all sentenced for the same offence. Mr Button had pleaded guilty and the sentencing judge indicated that he would be given a 5% discount. However, the indicative sentence in relation to the reckless wounding was a non-parole period of three years with an additional term of one year for each of the three offenders. In that way, the sentencing judge failed to give effect to the discount he had indicated would be given.
The Crown accepts that the sentencing judge in fact failed to apply the 5% discount for Mr Button's guilty plea for the shotgun offence.
In relation to count 2 in respect of which Mr Button pleaded guilty (the reckless wounding with the machete), Mr Button accepted that both Mr Horst and Mr Menouhos were convicted of wounding with intent in relation to that incident. Mr Button pointed to the sentencing judge's finding that the machete offence in respect of all three offenders, approached the mid-range of objective seriousness.
Although Mr Button accepted that the sentence imposed on Mr Horst and Mr Menouhos for the machete offence was a non-parole period of six years with an additional term of two years, whereas the sentence he received was a non-parole period of three years with an additional term of one year, he submitted that since his Honour considered the objective seriousness of each offence was the same his Honour must have failed to apply the discount for the plea.
Although the Crown submitted that it should not be lightly concluded that the sentencing judge had failed to apply a specified discount, it accepted that, where the sentencing judge had failed to do so in respect of count 3, it was likely the sentencing judge had also failed to apply the discount for count 2. I agree that the indicative sentences for each of Mr Button, Mr Horst and Mr Menouhas, when taken with the same assessment of objective seriousness, point strongly to the likelihood that the sentencing judge overlooked the discount he had said would be applied.
Error is therefore shown in relation to this ground.

[10]

Ground 3: Sentence manifestly excessive

In the light of the need to re-sentence Mr Button it is convenient to say something about these grounds before dealing with ground 1. Counsel for Mr Bezjak submitted that the parity ground was simply part of the manifest excess ground. Accordingly, these two grounds will be dealt with together.
Counsel for Mr Bezjak submitted that it was apparent from a comparison in each of his and Mr Button's sentences with the indicative sentences that the accumulation was much greater in Mr Button's case, and that this was indicative of error both in terms of parity and also manifest excess.
In my opinion, a number of matters point to there being problems relating to parity and to the sentence being excessive. In Mr Button's case, the total of the indicative sentences was 13 years and eight months against an aggregate sentence of eight years. In Mr Bezjak's case, the total of the indicative sentences was eight years and four months against an aggregate sentence of seven years. Even if Mr Bezjak's sentence alone was regarded, the aggregate sentence disclosed very significant accumulation. That was despite the three offences all forming part of the same offending. The sentencing judge found that it was Mr Bezjak's driving the co-offenders from the scene which enabled them to evade capture for some two months. It was not suggested any other acts were done by him in that two month period to constitute the accessory offences.
Further, the statutory ratio had been reduced in Mr Button's case to 68.75% whereas in Mr Bezjak's case it had only been reduced to 71.4%. That produced for Mr Button, on an aggregate sentence of one additional year over Mr Bezjak's, a parole period of two years and six months against a parole period of two years for Mr Bezjak.
The offences committed by both Mr Button and Mr Bezjak were all found to be in the mid-range of objective seriousness, and Mr Bezjak's role in the offending was found to be significantly less in terms of moral culpability.
Those matters when taken together, and considering the principles set out in Hughes v R [2018] NSWCCA 2 at [86], establish that the sentence is manifestly excessive. Those matters also point towards a justifiable sense of grievance on Mr Bezjak's part when comparing the two sentences, and I do not overlook the caution needed when determining a parity ground where both offenders were sentenced by the same judge:Tuivaga v R [2015] NSWCCA 145 at [55]-[56] per Hoeben CJ at CL (R A Hulme and Wilson JJ agreeing). Since it is necessary to re-sentence both offenders, it is not necessary to reach a final view on parity. The principles will need to be borne in mind on the re-sentence exercise.

[11]

Ground 1: His Honour failed to apply his finding of special circumstances to the non-parole period imposed

Since it is necessary to re-sentence Mr Bezjak, it is not necessary to deal at length with this ground except to say that Mr Bezjak's non-parole period was reduced by some four months from what was required from the statutory ratio, to produce a period of two years on parole. The sentencing judge said that he did that, to provide for a more extended period of supervision in view of the total term of the sentence imposed in order to provide for ongoing supervision for a lengthier period than would otherwise be the case while on parole to assist the offenders in returning to a non-offending lifestyle in the community.
A finding of special circumstances and any adjustment to the statutory ratio is a discretionary matter, and the Court will be slow to interfere with that discretion: Caristo v R [2011] NSWCCA 7 at [28]; Jiang v R [2010] NSWCCA 277 at [83].
While the reduction in Mr Bezjak's non-parole period was small, that is no reason in itself for interference by this Court. In BR v R [2015] NSWCCA 255, where a reduction of only 1% was given, Simpson J (as her Honour then was) (Bathurst CJ and R A Hulme J agreeing) said at [63]: By this ground, the applicant complains that, although her Honour expressly found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, the sentence imposed did not truly reflect that finding. The ratio prescribed by s 44(2) between the non-parole period and the head sentence is 75 per cent; a finding of special circumstances permits a sentencing judge to vary that proportion, by reducing the non-parole period. In this case, the non-parole period imposed is almost 74 per cent of the head sentence. That is a very small reduction on the statutory proportions. On that basis, this ground appears to have some superficial substance. However, when regard is had to the reason given for the finding of special circumstances, the concern dissipates. As stated above, the reason given for the finding was the applicant's need for sustained supervision on his eventual release. On any view, if released on the expiration of the existing non-parole period, the applicant will have 6 years at liberty on parole (of which part may not be subject to supervision). In those circumstances, it could hardly be concluded that the underlying reason for the stated finding of special circumstances was undermined.
In the present case, it similarly cannot be said that two years on parole will not be suitable to achieve the purpose stated by the sentencing judge.

[13]