Bernes, Dwayne Andrew v The Queen - [1998] TASSC 27

27/1998

PARTIES:  BERNES, Dwayne Andrew
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 124/1997
DELIVERED:  2 April 1998
HEARING DATE/S:  5 March 1998
JUDGMENT OF:  Cox CJ, Crawford and Slicer JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Generally - Sentence manifestly excessive in all the circumstances.

Midson v R 26/1998, applied.
Aust Dig Criminal Law [835]

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Application to reduce sentence - When granted - Particular offences - Property offences - Burglary and stealing - Substantial antecedents - Whether two years nine months' imprisonment is manifestly excessive.

Aust Dig Criminal Law [1012]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  D J Bugg QC, R Mainwaring
Solicitors:
             Appellant:  In person
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:
Judgment ID Number:  27/1998
Number of pages:  8

Serial No 27/1998
File No CCA 124/1997

DWAYNE ANDREW BERNES v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

COX CJ
CRAWFORD J
SLICER J
2 April 1998

Orders of the Court

Appeal allowed.

Sentence quashed.

Substitute a sentence of imprisonment for two years three months from 9 December 1997.

COX CJ

The appellant pleaded guilty to one count of burgling a newsagency and one count of stealing therefrom cash and goods to an approximate value of $20,000. He was sentenced to imprisonment for two years nine months.
The appellant was one of three persons involved in the crimes and admitted to having played the part of driver to transport offenders and the stolen property consisting of (inter alia) large quantities of cigarettes and magazines. Apart from the value of the property stolen, it appears to have been a fairly typical burglary of commercial premises. It was not aggravated by the use of explosives or safe-breaking equipment. What makes it a clear case for condign punishment is the previous criminal record of the offender. I repeat what I said in the case of Midson v R 26/1998 which is published contemporaneously herewith in respect of the approach of the courts to persistent offenders. In fact, the learned sentencing judge dealt with both matters on the same day and prefaced his comments on passing sentence in respect of this appellant by saying, "You are the second habitual offender to appear in my court for sentence today".
The appellant was 22 years of age and numerous offences of dishonesty were proved against him in the Children's Court resulting in supervision orders and, eventually, sentences of imprisonment, some actual, some suspended and some of the latter activated because of failure to be of good behaviour. In the Supreme Court in 1992 just before his 17th birthday, he was convicted of aggravated burglary and sentenced to eighteen months' imprisonment, the execution of one half of which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bernes, Dwayne Andrew v The Queen

Details

AGLC: Bernes, Dwayne Andrew v The Queen [1998] TASSC 27
Case: [1998] TASSC 27
Decision Date: 2 April 1998

CaseChat Overview and Summary

The case of Bernes, Dwayne Andrew v The Queen was heard by the Court of Criminal Appeal in Tasmania. The appellant, Dwayne Andrew Bernes, was convicted of burgling a newsagency and stealing from it cash and goods to an approximate value of $20,000. He was sentenced to imprisonment for two years and nine months. The appeal focused on whether this sentence was manifestly excessive in all the circumstances.

The legal issues the court had to decide were whether the sentence was manifestly excessive, whether the sentence failed to provide an adequate discount for the plea of guilty, and whether the sentence failed to take account or take account adequately of the youth of the appellant. The appellant's extensive criminal history, which included numerous convictions for dishonesty and other offences, was a significant factor in the court's consideration. The appellant had been involved in a series of burglaries and thefts, and his criminal conduct had continued despite various sentences and rehabilitation efforts.

The court held that while the sentence of two years and nine months might not be unwarranted in isolation, it was manifestly excessive when considering the appellant's extensive criminal history and the need for incapacitation to protect the community. The court also noted that the sentence did not adequately account for the appellant's plea of guilty or his youth. The appeal was allowed, and the sentence was substituted with imprisonment for two years and three months, to commence on 9 December 1997.

The court's reasoning emphasized the need for sentences to reflect the seriousness of the crime, the appellant's persistent criminal conduct, and the principles of incapacitation and deterrence. The court warned that recidivists should not expect to be treated the same as more ordinary offenders. The substituted sentence aimed to balance the need for deterrence and protection of society with the principles of proportionality and warning regarding the increase in penalties.

Orders