Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bezjak v R; Button v R [2018] NSWCCA 178 Hearing dates: 18 April 2018 Date of orders: 17 August 2018 Decision date: 17 August 2018 Before: Hoeben CJ at CL at [1] Fullerton at [2] Davies J at [3] Decision: On the application of James Button: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by His Honour Judge King SC in the District Court on 28 April 2017. (4) In lieu, sentence the appellant to an aggregate sentence of imprisonment for seven years and six months commencing 9 July 2016 and expiring 8 January 2024 with a non-parole period of five years expiring 8 July 2021. On the application of Daniel Bezjak: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by His Honour Judge King SC in the District Court on 28 April 2017. (4) In lieu, sentence the appellant to an aggregate sentence of imprisonment for six years commencing 29 April 2015 and expiring 28 April 2021 with a non-parole period of four years expiring 28 April 2019. Catchwords: SENTENCING – mitigating factors – plea of guilty – aggravated break and enter – reckless wounding in company – aggregate sentence - whether the sentencing judge erred by failing to apply 5% discount for late plea – error apparent when indicative sentences were compared to those of co-offenders who did not plead – whether sentence manifestly excessive – applicant re-sentenced SENTENCING – appeal against sentence – break and enter – accessory after the fact to reckless wounding in company – whether aggregate sentence manifestly excessive - co-offenders – disparity between sentences – whether differences in reduction of statutory ratio resulted in justifiable grievance – whether differences in notional accumulation of indicative sentences evinced disparity Legislation Cited: Crimes Act 1900 (NSW) ss 33, 35, 112, 350 Cases Cited: 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 Texts Cited: Nil Category: Principal judgment Parties: Daniel Bezjak (Applicant) James Button (Applicant) Crown (Respondent) Representation: Counsel: F Coyne (for Daniel Bezjak) A Evers (for James Button) B Baker (Respondent) Solicitors: C Sweeney (for Daniel Bezjak) R Dunlop (for James Button) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/126797 & 2015/126814 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 28 April 2017 Before: King DCJ File Number(s): 2015/126797 & 2015/126814 Judgment 1. HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes. 2. FULLERTON J: I agree with Davies J. 3. 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). 1. 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). 1. 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. 2. 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. Two other co-offenders, Christopher Menouhos and Dean Horst stood trial on offences arising out of the same incident. Each of those offenders stood trial and was convicted of the following offences: (1) Aggravated break, enter and commit a serious indictable offence. (2) Wound with intent to cause grievous bodily harm (involving the machete) contrary to s 33(1)(a) of the Crimes Act. The maximum penalty for this offence is 25 years' imprisonment and there is a standard non-parole period of seven years. (3) Reckless wounding (involving the shotgun). 1. In addition, Mr Menouhos pleaded guilty to a further offence against s 112(2) of the Crimes Act. He asked for an offence of carrying a cutting implement to be taken into account on a Form 1. 2. The sentences imposed and the indicative sentences in respect of the four co-offenders are shown in the following table: Offences Max/SNPP Plea Entered Time I/C Sentence Offender Indicative sentences 1. 5y 4m, NPP 4y Bezjak 1. s112(2) agg break, enter & steal 20yrs/5yrs PG 11/10/16 (second day of trial) 1yr 9m 23d 2. 18m (since 1/5/15) 3. 18m Aggregate sentence 7y, NPP 5y 2. s35(3)/s350 accessory after the fact to reckless wounding I/C 5yrs/- PG 3. s35(3)/s350 accessory after the fact to reckless wounding I/C 5yrs/- PG Indicative sentences 1. 5y 8m, NPP 4y 3m Button 1. s112(2) agg break, enter & steal 20yrs/5yrs PG 11/10/16 7m 15d 2. 4y, NPP 3y (second day of trial) (equivalent date is 10/7/16) 3. 4y, NPP 3y Aggregate sentence 8y, NPP 5y 6m 2. s35(3) reckless wounding I/C (machete) 10yrs/4yrs PG 3. s35(3) reckless wounding I/C (shotgun) 10yrs/4yrs PG Indicative sentences 1. 6y, NPP 4y 6m Horst 1. s112(2) agg break, enter & steal 20yrs/5yrs NG Trial 5m 17d 2. 8y, NPP 6y (equivalent date is 20/9/16) 3. 4y, NPP 3y Aggregate sentence 10y, NPP 7y 2. s33(1)(a) wound w/I to cause GBH (machete) 25yrs/7yrs NG 3. s35(3) reckless wounding I/C (shotgun) 10yrs/4yrs NG Indicative sentences 1. 6y, NPP 4y 6m Menouhos 1. s112(2) agg break, enter & steal 20yrs/5yrs NG Trial 1yr 9m 20d 2. 8y, NPP 6y (since 4/5/15) 3. 4y, NPP 3y Aggregate sentence 10y 6m, NPP 7y 6m 2. s33(1)(a) wound w/I to cause GBH (machete) 25yrs/7yrs NG 3. s35(3) reckless wounding I/C (shotgun) 10yrs/4yrs NG Menouhos s112(2) agg break, enter & steal 20yrs/5yrs PG (at conclusion of first trial) 1yr 10m 1d FT 2y 6m (since 9/4/15) FORM 1 – s547D - carry cutting implement 6mths /or 5pu 1. The applicant Button seeks leave to appeal against his sentence on the following grounds: 1. The sentencing judge failed to give effect to the sentencing discount for the plea in relation to counts 2 and 3. 2. The sentencing judge erred in allowing a discount of only 5% for the guilty plea entered by the applicant. 3. The sentencing judge erred in failing to take into account the deprived background of the applicant when assessing the applicant's moral culpability. 1. The applicant Bezjak seeks leave to appeal against his sentence on the following grounds: 1. His Honour failed to apply his finding of special circumstances to the non-parole period imposed. 2. His Honour erred in imposing a sentence which offends the parity principle. 3. The sentence is, in all circumstances, manifestly excessive. 1. At the outset of the hearing of the appeal, counsel for Mr Bezjak sought leave to add as a ground of appeal ground 2 in Mr Button's appeal. Counsel indicated that he was content to rely on what was put on Mr Button's behalf in that regard. The Crown did not oppose leave being given. Facts of the offending 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. Remarks on Sentence 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. Subjective matters James Button 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. He claimed to have ceased using all of those drugs after he was hospitalised for mental health symptoms. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. Daniel Bezjak 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. Grounds of appeal James Button Ground 1: Discount for the plea in relation to counts 2 and 3 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. Error is therefore shown in relation to this ground. Ground 2: The sentencing judge erred in allowing a discount of only 5% for the guilty pleas Ground 3: Mr Button's deprived background 1. As it is necessary to re-sentence Mr Button, no point is served by dealing with these grounds other than in the context of the re-sentencing exercise. The submissions made in relation to them will, to the extent that they are relevant, be dealt with at that time. Daniel Bezjak Ground 2: Parity Ground 3: Sentence manifestly excessive 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. Ground 1: His Honour failed to apply his finding of special circumstances to the non-parole period imposed 1. 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. 1. 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]. 2. 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. 1. 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. Ground 4: The sentencing judge erred in allowing a discount of only 5% for the guilty pleas 1. Since Mr Bezjak is to be re-sentenced, it is not necessary to say anything about this ground. Re-sentence James Button 1. The factual findings relating to the offending have been set out earlier. I agree with the sentencing judge's findings that the aggravating factors were the planning, the use of the machete and shotgun, the significant degree of violence used, and the substantial risk of injury from the use of the weapons. In my opinion, the offending by Mr Button approached the mid-range of objective seriousness. 2. The pleas by both offenders were entered on the second day after the trial was listed. No prior offers of a plea had been made by either offender. Both offenders submitted in support of their ground of appeal concerning the extent of the discount accorded by the sentencing judge that, following R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [151]-[158], a discount of 10% should be given. 3. Whilst the Court in that case suggested a range of 10% to 25%, the Court also allowed for the possibility that sometimes no discount at all would be given. It may be accepted that the late plea had some utilitarian value in that the trial proceeded only against two of the accused with some reduction in the trial time, but that value would be limited. I would provide a discount of 5% for that value. 4. I have earlier summarised Mr Button's subjective features and his background. His counsel pointed to what was said in the psychologist's report to link his low average and borderline abilities as assessed on psychometric testing and his upbringing to his involvement in antisocial behaviour and the commission of the offences. These matters were said to reduce his moral culpability. Counsel made reference to what was said by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. 5. As noted, Mr Button did not give evidence at the sentence hearing. The information in the psychologist's report was second-hand and untested. Little weight can be given to such untested evidence: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 368 at [58]-[59]. That is the more so here where, in the account given to the psychologist, Mr Button appeared to minimise his role in the offending, saying that he was simply a "lookout", was not privy to the planning, and did not know that anyone had a gun. 6. The psychologist noted lower verbal skills and said of them in Mr Button's case: Lower verbal skills can be problematic because they assist with decision making, inhibiting impulsivity and in allowing for consequential thinking. Thus, when these are deficient an individual may be prone to malleability through the influence of others and more likely to make hasty and poorly considered choices. 1. However, the offences, particularly the offence against s 112(2) involved planning and premeditation. The weapons were arranged and brought to the property and the offenders changed their clothes for the offending. In that regard, impulsivity and hasty and poorly considered choices do not appear to be involved in the present offending. 2. It may be accepted, however, that, as the psychologist observed, Mr Button has developed some antisocial attitudes through years of negative peer associations, and that this appears to have been brought about as a result of a chaotic upbringing where he became exposed to alcoholism, drug abuse and violence with all his extended family members except, it would seem, his sisters. Indeed, the only sworn evidence before the sentencing judge was an affidavit from his sister, Chloe Button, with whom he lived at the time he was incarcerated for the present offences. Her evidence was that she had supported him and would continue to do so. He said that he did not use drugs or alcohol at the time he lived with her, no doubt because he was then subject to an Intensive Correction Order. 3. Mr Button had a criminal record which disclosed that he had been given a one year suspended prison sentence in 2008 for an offence of aggravated break, enter and commit a serious indictable offence committed in 2007. He had also been given a two year Intensive Correction Order for an offence of the same kind committed two months after the present offending. This offending shows, as the sentencing judge noted, a contemptuous regard for the law. 4. There was little before the sentencing judge to show remorse for the offending, and the affidavit of the applicant read at the hearing of the appeal said only that the applicant knew that he "stuffed up" when he committed the offences. In my opinion, remorse is not shown. Nor, given his history, is there much to suggest that he will not reoffend, the only possible hope being that he became a father for the first time in July 2017, and in his affidavit he says that he wants to change his ways for his daughter. 5. I would make a finding of special circumstances on the basis that the applicant will need a longer period subject to supervision to assist him in distancing himself from influences which have been detrimental to him since he was a teenager. 6. Taking into account the discount for the plea, I propose an aggregate sentence of seven years six months with a non-parole period of five years. The indicative sentences are as follows: Count 1 - five years and three months with a non-parole period of three years and nine months; Count 2 – three years and ten months with a non-parole period of two years and six months; Count 3 – three years and ten months with a non-parole period of two years and six months. Daniel Bezjak 1. Mr Bezjak's role in the offending was certainly at a lower level of moral culpability than that of the other offenders. That is, to some extent, reflected in the charges preferred against him. His counsel, when dealing with the manifest excess ground, submitted that in all the circumstances an aggregate sentence of seven years with a non-parole period of five years was manifestly excessive for what was described as "a role which was no more than driving the offenders to and from the subject premises". That, of course, is not a true representation of what Mr Bezjak was being punished for. He was part of a joint criminal enterprise to engage in a violent home invasion with two dangerous weapons where serious injury was inflicted and where he subsequently assisted the other offenders and himself to evade detection for a two month period. 2. Given the extent of the planning involved, and the fact that Mr Bezjak drove the other offenders to the house, it is difficult to believe that he was unaware of the weapons prior to the home invasion, particularly when it is remembered that those weapons were a sawn-off shotgun and a machete. In any event, he certainly knew the gun was involved before he became an accessory after the fact because it was discharged a number of times during the break-in. 3. I would assess the objective seriousness of his offending as approaching the mid-range. 4. Although, in a letter to the District Court, Mr Bezjak expressed some remorse for what he had done in terms of the impact it had on the victim, the victim's family and his own family, Mr Bezjak did not give evidence at the sentence hearing. Nor was any additional evidence provided to this Court on the appeal. 5. Further, the pre-sentence report said that Mr Bezjak minimised his involvement in the offending, and denied knowing that that the co-offenders had weapons. He made similar remarks in his letter to the District Court. As I have found, he certainly had knowledge of the weapons from the time he drove the co-offenders away from the scene. 6. I consider that there is little evidence of remorse. 7. The pre-sentence report evidences a history of alcohol and drug abuse for some years by Mr Bezjak. The report from the psychologist confirms his drug abuse but, as I have noted earlier, it reports that Mr Bezjak denied any history of alcohol abuse, and is in that way inconsistent with the pre-sentence report. It is troubling that, in the face of that denial by Mr Bezjak, his letter to the District Court claimed that ice and alcohol impaired his judgment at the time of the offending. The pre-sentence report also said that although Mr Bezjak denied using drugs whilst in custody, prison reports indicated a misconduct charge by reason of possession of drugs. 8. Mr Bezjak's criminal record shows that in 2011, whilst a juvenile, he was convicted of robbery in company, in respect of which he was given a nine month control order. In November 2011, he received a six month bond for receiving stolen property and 12 months' probation for assault occasioning actual body harm. While on parole from the control order, and while subject to the bond and the probation, he was involved in an affray for which he was convicted and sentenced to 50 hours of community service. 9. His criminal record and unresolved drug and alcohol issues lead me to the conclusion that there is a moderate to strong risk of reoffending. I find special circumstances to vary the statutory ratio because of the need for Mr Bezjak to be assisted with his drug and alcohol problems and his antisocial behaviour when he is released into the community. 10. Having regard to the sentence proposed for Mr Button, the sentences given to the other co-offenders, the difference in the charges, Mr Bezjak's lesser role in the offending, and taking into account the discount for his plea, I consider that the appropriate aggregate sentence is one of six years imprisonment with a non-parole period of four years. The indicative sentences are as follows: Count 1: Four years and nine months with a non-parole period of three years and one month Count 2: 17 months imprisonment Count 3 17 months imprisonment Conclusion 1. I propose the following orders: On the application of James Button: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by His Honour Judge King SC in the District Court on 28 April 2017. (4) In lieu, sentence the appellant to an aggregate sentence of imprisonment for seven years and six months commencing 9 July 2016 and expiring 8 January 2024 with a non-parole period of five years expiring 8 July 2021. On the application of Daniel Bezjak: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by His Honour Judge King SC in the District Court on 28 April 2017. (4) In lieu, sentence the appellant to an aggregate sentence of imprisonment for six years commencing 29 April 2015 and expiring 28 April 2021 with a non-parole period of four years expiring 28 April 2019. ********** 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. Decision last updated: 17 August 2018