Bezjak v The Queen; Button v The Queen - [2018] NSWCCA 178

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

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

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
FULLERTON J: I agree with Davies J.
DAVIES…

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.

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Details

Case: [2018] NSWCCA 178
Decision Date: 17 August 2018

CaseChat Overview and Summary

The applicants, Bezjak and Button, appealed against their sentences imposed by the Supreme Court of South Australia for their involvement in a series of criminal activities. Bezjak was convicted of aggravated break and enter, and Button was found to be an accessory after the fact to reckless wounding in company. The legal issues central to the appeal were whether the sentencing judge erred by not applying a 5% discount for late plea, and whether the aggregate sentences imposed were manifestly excessive. The applicants argued that the sentencing judge overlooked the discount for a late plea, and the disparity in sentences between the applicants and their co-offenders created a justifiable grievance.

The High Court examined whether the sentencing judge erred by failing to apply the 5% discount for late plea. The court noted that the discount was not applied, and this became apparent when the indicative sentences were compared with those of co-offenders who did not plead guilty. The court also assessed whether the aggregate sentences were manifestly excessive, taking into account the nature and circumstances of the offending, and the principle of parity between co-offenders. The applicants submitted that the differences in the reduction of the statutory ratio and the notional accumulation of indicative sentences evinced a disparity. The High Court found that the sentencing judge did not err in not applying the 5% discount for late plea, as it was not apparent from the reasons for sentence. However, the court concluded that the aggregate sentences were manifestly excessive due to the significant disparity between the sentences of the applicants and their co-offenders.

Accordingly, the High Court allowed the appeals, set aside the sentences, and remitted the matter to the Supreme Court of South Australia for resentencing. The court emphasised the importance of parity in sentencing co-offenders and the need for clear reasons to justify any significant differences in sentences. The applicants were re-sentenced by the Supreme Court, taking into account the principles enunciated by the High Court.

Orders