New South Wales Court of Criminal Appeal CITATION : Regina v Perry Jeffrey Bettler [2004] NSWCCA 418 revised - 26/11/2004 HEARING DATE(S) : 10/8/04 JUDGMENT DATE : 25 November 2004 JUDGMENT OF : James J at 1; Adams J at 2; Bell J at 24 DECISION : Leave to appeal granted; Appeal dismissed. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 PARTIES : Regina Perry Jeffrey Bettler (Applicant) FILE NUMBER(S) : CCA 2004/1747 COUNSEL : In Person (Applicant) G Rowling (Respondent) SOLICITORS : N S Williamson (Applicant) C WIlliams (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0825 FILE NUMBER(S) : LOWER COURT Berman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60149/04 2004/1747 JAMES J ADAMS J BELL J Thursday 25 November 2004 REGINA v Perry Jeffrey BETTLER Judgment 1 JAMES J: I agree with Adams J. 2 ADAMS J: Perry Jeffrey Bettler was convicted on his plea of two counts of breaking, entering and stealing contrary to s112(1) of the Crimes Act 1900, the maximum penalty for which was imprisonment for fourteen years. The first count alleged that on 14 September 2000 he broke and entered the Waratah Rugby Club and stole an automatic teller machine containing $44,780. The second charge alleged that on 5 April 2001 he broke and entered the Umina Beach Bowling Club and stole an automatic teller machine containing $22,960. 3 The facts of the first of these offences was that entry to the club was gained by smashing a glass panel on the rear entrance door, entering the premises with a trolley on which was placed an ATM that was removed through the front entrance door. A security video showed that this exercise was completed in about two minutes. Something over two weeks later, the ATM was found in a bushland track at Mandalong. A square hole had been cut through the front door panel to gain access to the cash it contained. The second charge arose from a similar crime. The applicant had broken into a door in the premises, having driven a van close by. Again, the ATM had been removed from the premises by using a trolley and placed in the van. It appears, however, that the applicant's getaway was interrupted by security officers arriving on the scene when the alarms where activated. The van with the ATM half way into its back was discovered by the officers. The applicant had fled. 4 Four further similar offences were taken into account under a Form 1. These occurred at Mussellbrook RSL on 9 November 1999, when $10,000 was stolen, at Emu Plains Sports and Recreation Club on 23 March 2000 when $1,550 was stolen, at Albion Park Bowling Park on 18 May 2000 when $14,930 was stolen and the Forster Bowling Club on 27 September 2000 when $8,780 was stolen. 5 The applicant was sentenced for the Umina Beach offence to imprisonment for two years to commence on 14 March 2003, which was the day on which he went into custody on that matter, with a non-parole period of one year and six months which expired on 13 September 2004. In respect of the offence involving the Waratah Rugby Club, the applicant was sentenced to imprisonment for three years to commence on 14 March 2004 with a non-parole period of two years which will expire on 13 March 2006. Accordingly, the applicant was subject to an effective overall sentence of four years and was eligible to be released to parole after three years. The non-parole periods were set in order to reflect the statutory ratio referred to in s44(2) of the Crimes (Sentencing Procedure) Act 1999 because of what his Honour regarded as an inappropriate adverse consequence that would otherwise have followed from the accumulating of the sentences. His Honour took the matters on the Form 1 into account in the second sentence. The applicant was given the benefit of a 25% utilitarian discount for his pleas despite the sentencing judge's grave reservations as to whether the concession by the Crown that they were given at the earliest practicable time was correct, reservations which seem to me to be justified. However, there is no issue in these proceedings about this matter. 6 The applicant appealed to this Court upon the ground that the sentences imposed upon him were excessively harsh. 7 The crimes were quickly and efficiently carried out and clearly required some planning and a degree of skill. The applicant takes issue (amongst other things) with the learned sentencing judge's view that "a great deal of planning and a considerable degree of skill" was required. It may be that this language somewhat overstates the position but the context of his Honour's observation makes it clear that it did not have any material adverse effect on the applicant's sentences. When the applicant was arrested on 25 July 2000, police found stockings with eye holes, keys, bolt cutters, jemmy bars and gloves whilst in his vehicle was found a generator, an angle grinder, stockings and gloves. The angle grinder, powered by the generator, had plainly been used to a number of the ATMs he had stolen. It is obvious that the offences for which the applicant came to be sentenced and those which it was agreed should be taken into account comprised a very serious course of criminal conduct and that their objective seriousness necessitated a significant period of imprisonment unless there were other circumstances of an exceptional kind. 8 The applicant, who is now coming up to forty-five years of age, has a relatively lengthy criminal record going back to 1979, which includes a number of convictions for theft. Furthermore, the offences were committed when the applicant was subject to a three year recognizance imposed by the District Court in connection with the contravention of an apprehended domestic violence order on 21 August 1998. 9 The applicant and his wife gave evidence and some documentary material was tendered. The report of a psychologist, Ms Karlene Ryder, who interviewed and assessed the applicant on 3 March 2003 stated, in summary, that the applicant's intellectual capability was well within average range although his personal profile as, indeed, the history of his relationships, indicated some problematic and unstable characteristics, including a need to submit to demands made of him in the course of the relationship to avoid breakdown and a tendency to be suspicious and paranoid and thus blame others for his problems. In general, however, the applicant's personal history was unremarkable, although his parents separated when he was young and after school he started mixing with people involved in car stealing which may well explain why his criminal history commenced in 1979 with a number of offences relating to theft of motor vehicle. The applicant has no issues concerning alcohol or drug consumption. When asked to discuss the present offences he stated, "We had just had a baby. I dunno, just trying to make things nice and comfortable at home. We never had it when we were kids. Plus the wife was a bit of a gambler, that was a problem. Trying to keep things nice at home, plus keep the wife happy." When asked how he felt about his offences, the applicant replied, "I kick myself for doing them. I think I just went about it all the wrong way, trying to sort all our problems out the wrong way." 10 The applicant is married with three children who, as at the date of sentencing, were aged about fifteen, thirteen and four years of whom the teenagers were step-children. Mrs Bettler told the sentencing judge that, when the applicant was released from prison on parole in November 2002, he resumed family life and commenced working as a carpenter. She told the court that she was addicted to gambling and spent "whatever I could get my hands on, basically", with the applicant attempting to restrict the money available to her. Mrs Bettler said, and it is not disputed, that it was necessary for them to sell their home and another property which they owned in order to pay $100,000 to the New South Wales Crime Commission and cover their legal expenses, with the remainder being used as a deposit on another home. She said that she had not "really" discussed what motivated her husband to commit his offences but that he had told her that he would never commit an offence again, saying "he would never do that to me again". Although Mrs Bettler did not (as it seemed to me) attempt to downplay the extent of her gambling problem, she said that it amounted to "possibly" a couple of hundred dollars a week. On the face of it, it is difficult to reconcile this evidence with the suggestion made by the applicant that his wife's gambling was the principal cause of his criminal activity. On the other hand, there was no evidence – indeed, so far as the evidence went it was to the opposite effect – that the Bettlers had an expensive lifestyle or had purchased luxury items. It also appeared that the applicant was earning a reasonable income from his legitimate employment. 11 Also called on the applicant's behalf was a Mr Stephen Periot who was the State manager of a building company which sub-contracted work to the applicant, amongst others, for well over a decade. He considered that the applicant was a very hard and effective worker. Indeed, the firm re-employed him despite knowing that he had been in prison for offences involving dishonesty because they considered that he did "a good honest day's work for them" and, as I understand it, Mr Periot's personal judgment of the applicant, whom he knew well, was positive. As his Honour pointed out during the proceedings, it did not appear that there was any dispute about the applicant's hard working characteristics, "the problem is what he was using his talents for". 12 The learned sentencing judge noted (correctly) that, although the applicant had been subject to the supervision of the Probation and Parole Service since 1997, there appeared "to have been no real benefit in ensuring" that he did not re-offend. 13 Following the evidence of Mrs Bettler and Mr Periot, counsel made submissions on sentence and the learned sentencing judge reserved his decision. On the day upon which his Honour proposed to deliver judgment the applicant's then counsel sought to call the applicant because "he feels that I haven't put all points to your Honour on his sentence". Quite rightly, his Honour gave the applicant the opportunity to give evidence. The substance of the applicant's evidence was that, whilst he had been in prison serving his previous sentence, his son who was then eighteen months old, was brought to visit him each week and he was much affected by "saying goodbye to him" and vowed to his wife that he would never again commit a crime since it was "just too hard" having regard to his feelings for his family. (The applicant had been released on parole although the current set of charges were still outstanding since, at that time, he had pleaded not guilty. It was, in these circumstances, no doubt proper for the Parole Board to release him.) In the result, of course, he was returned to prison after only four months. The applicant said – "The four months I was out were pretty hard. I could never leave the house because [my youngest son] would always be there, clinging to me, thinking I wasn't going to come home again. And again it reinforced my regret and everything I had done in the past and made me realise what I was doing was wrong and I again vowed to my wife that never again, after putting him through all this and all the trouble I've caused…I wanted to try and just clear everything up and get off to a fresh start [a reference to his changed plea, as I understand it]. It's been pretty hard and that. I was released, I was given a second chance with my employment…I got a second chance with my family and also through work and other people. We were able to secure a home loan and we just bought a new home. I just want the chance to just live a normal life again. I know there are alternatives to full time custody but full time custody is not only punishing me, but it's also punishing my family. It's all I've just got to say, your Honour." 14 With respect to the issue of remorse, his Honour expressly took into account what had been said to him by both Mr and Mrs Bettler but concluded – "Mr Paish said I should take into account the fact that the offender was remorseful. Were I to find that he was genuinely sorry for what he had done in the sense that he regretted breaking the law because it was the wrong thing to do, I would certainly do so. However, I am satisfied that the only remorse felt by the offender is for his family. He is sorry that his wife and children will suffer because of the fact that he must now go to gaol for a significant period of time…The offender's attitude does, however, suggest that he is less likely to commit further offences upon his release, a matter which I have taken into account." 15 The learned sentencing judge also took into account the circumstance that each of the offences was committed in premises which were unoccupied and that this was an intentional part of the applicant's modus operandi. 16 Having regard to the determination that the applicant was not genuinely remorseful in the sense that "he regretted breaking the law because it is the wrong thing to do", his Honour thought that it followed that "more emphasis than usual" needed to be placed on specific deterrence in formulating the appropriate sentences for these offences. His Honour added that he did not see how Mrs Bettler's problems with gambling made the applicant's conduct any less serious, a conclusion which, with respect, I think is correct. 17 In this Court, the applicant relied upon written submissions made by him and Mrs Bettler and Ms Johanna Schroeder, Mrs Bettler's sister. The applicant supplemented to some degree what had been provided in writing and in oral submissions saying that much of what was contained in the material which he put before the Court had not "really come out when I was sentenced because the barrister I had at the time never put forward a lot of my case". The written material did disclose some additional matters which had not been mentioned at the sentencing hearing. Those matters concerned serious problems with an unborn child and the consequences of dealing with it appropriately. Otherwise, most of what the applicant said merely elaborated what had already come out clearly in the sentencing hearing. This material is not properly to be admitted in the present proceedings since it is an appeal and not a re-hearing. However, since the submissions that were made have the mark of sincerity and the applicant no doubt believes that they might or should affect his case, I think it right to say in these circumstances that nothing in the material which he has brought to the attention of this Court, even if given its full weight, could or should lead this Court to the conclusion that the sentences imposed upon him in the District Court were not wrong. 18 The applicant emphasises the sincerity of his intention not to commit another crime and is supported in this by Mrs Better who said that she had seen a remarkable change in him. The applicant also pointed to the hardship, both of a domestic and financial kind, suffered by his family because of his imprisonment. I would accept the applicant's statement of his future intentions as sincere. However, as it seems to me, this matter was adequately taken into account by the learned sentencing judge. As to the situation in which his family finds itself, this is not such an exceptional case which would justify the Court taking it into account to reduce what is otherwise a proper sentence. This Court could not, at all events, take a matter such as this into account upon an appeal of this kind. 19 The applicant also complains that the sentences did not take into account the pre-trial custody. It is clear from his Honour's reasons for judgment that, to the contrary, his Honour made an appropriate adjustment in this regard. 20 Ms Schroeder's statement discloses that the applicant's youngest son is displaying significance emotional problems which she attributes to the applicant's absence from the family. I do not doubt that this is true but this material is not receivable in these proceedings. Even if it were, it is not of such a kind as to justify a reduction in the applicant's sentence. 21 The applicant submitted that the fact that a number of outstanding offences covering some years were not dealt with at the same time by the same judge led to an overall term of imprisonment which was longer than it would have been had this not been the case. This is a matter which was raised during the sentencing proceedings and was adverted to by the learned sentencing judge in his Honour's reasons for sentence. It seems to me obvious that the sentences actually imposed reflect this consideration as well as other relevant matters. They would otherwise appear to be very much more lenient than could be justified. 22 The applicant also claims that the amount given to the New South Wales Crime Commission of $100,000 was greater than the proceeds of the offences which he committed but that he agreed to pay it because he was genuinely remorseful and wanted to make amends. I do not doubt that the fact that this money was paid to the Commission was taken into account by the learned sentencing judge and I do not think it appropriate now to enter into the way by which it was calculated. 23 In the result, it is apparent that the sentence below was well and truly within the learned sentencing judge's discretion to impose. It follows that the appeal must fail. I propose that leave to appeal be granted but that the appeal should be dismissed. 24 BELL J: I agree with Adams J. ********** Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.