R v Bereyne - [2003] NSWCCA 153

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Bereyne [2003] NSWCCA 153

FILE NUMBER(S):
60155/2001

HEARING DATE(S): 12 August 2002

JUDGMENT DATE: 06/06/2003

PARTIES:
Crown
Michael James Bereyne (applicant)

JUDGMENT OF: Hidden J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/2022

LOWER COURT JUDICIAL OFFICER: Luland DCJ

COUNSEL:
DC Frearson - Crown
Mr M Rumore (solicitor) - Applicant

SOLICITORS:
SE O'Connor - Crown
Mr M Rumore - Applicant

CATCHWORDS:
CRIMINAL LAW: Application for leave to appeal against sentence
armed robberies and other offences
no question of principle.

LEGISLATION CITED:

DECISION:
Leave granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60155/01
HIDDEN J
ADAMS J
Friday 6 June 2003

REGINA v Michael James BEREYNE

Judgment

HIDDEN J: The applicant, Michael James Bereyne, pleaded guilty in the District Court before the late Judge Luland to three charges of armed robbery. He also asked that a number of other offences be taken into account on two Form 1 documents. On the first of those documents there were seven further charges of armed robbery and three of stealing motor vehicles. On the second there were two further charges of armed robbery, two further charges of stealing motor vehicles, two charges of stealing, a charge of possessing car breaking implements and two traffic offences. It is unnecessary to set out the sentences on each of the three counts and the manner in which they were structured. It is sufficient to say that the effective overall sentence was imprisonment for twelve years with a non-parole period of eight years. He seeks leave to appeal against those sentences.
When the appeal was first listed before us the applicant was unrepresented. We adjourned the matter because he believed that he might be able to arrange representation by Mr Mark Rumore, solicitor, who had acted for him previously. On the adjourned date Mr Rumore appeared, we understand, without fee. We are grateful for his assistance.
For the purpose of the application there is no need to recite the facts of the offences. It is sufficient to say that they were committed between mid- December 1999 and the end of April 2000. For some of the armed robberies the applicant used a blood stained syringe, for others a knife. Several of the robberies were committed while he was on bail for another of them. He had a criminal record, primarily for offences of dishonesty, and had previously served terms of imprisonment. However, none of his previous convictions were for offences as serious as the armed robberies the subject of the present application.
The applicant was twenty-three years old at the time of the offences and is now twenty-six. He had a very disturbed background, detailed in a psychological report which was before his Honour. His schooling was limited and his criminal behaviour can be attributed to his abuse of drugs, which began in his early teens. The psychologist noted that, during his period in custody awaiting sentence, he had become involved in craft classes and showed some motivation to pursue rehabilitative programs. His Honour found special circumstances warranting a departure from the statutory proportion between head sentence and non-parole period. He did so by fixing a shorter than usual non-parole period in respect of the third count, resulting in an effective non-parole period which is two-thirds of the total sentence.
While he was unrepresented, the applicant prepared a document setting out ten matters which he wished to raise in his application. Although Mr Rumore later refined the argument, it was agreed that we should deal with those matters.
The first point was that he had not been afforded a twenty-five percent discount for his pleas of guilty. However, his Honour referred to those pleas in his remarks, noting their utilitarian value. He did not quantify a discount because of them but, while courts are encouraged to do so, they are not bound to: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at par 160. Even if his Honour had specified a discount, the history of the proceedings was such that a reduction of twenty-five percent would not have been warranted. It is sufficient to say that the pleas of guilty appear to have been given appropriate weight in the total sentence which his Honour imposed.
The applicant’s second point was that his Honour did not take into account the psychological report. In fact, as I have said, his Honour did refer to relevant parts of that report in his remarks and it appears to have had a significant bearing upon his finding of special circumstances.
The third, fifth, seventh and eighth points all raised matters which had occurred since sentence was passed. They refer to the applicant’s having gone on protection after being assaulted, his limited contact with his parents and lack of support from them, his pursuit of his rehabilitation through the mastery of pottery and ceramics, and his having contracted hepatitis C but, apparently, having been successfully treated for it. All of these matters might be relevant if we were to allow the appeal and re-sentence him but, obviously, none of them could demonstrate error in the sentence which his Honour passed.
The fourth point was that there was no pre-sentence report, although one had previously been ordered by another judge. Allied to this is a complaint that the applicant was not called to give evidence and that, generally, the sentence proceedings were rushed by counsel then representing him (not Mr Rumore). However, he acknowledged that he wished the matter to proceed despite the fact that the pre-sentence report had not been prepared, and it is difficult to see what such a report could have added to the comprehensive psychological report. Equally, he did not explain what his own evidence might have added to that report. Generally, there is nothing in the transcript or the remarks on sentence to suggest that his case was not properly presented.
The sixth point was that he admitted his guilt of four of the armed robberies even though the victims had not identified him and he had no recollection of them because he was affected by Rohypnol at the time. Nevertheless, he added that he had no doubt that he had committed those offences and he pleaded guilty so as not to waste the court’s time. He did not ask us to send those matters back to the District Court for trial, and he put nothing before us to call into question his formal admission of them (whether by pleas of guilty or by asking that they be taken into account on a Form 1).
The ninth point was that he had never previously committed “robbery type offences”. It is clear that his Honour was aware of this, noting that the applicant had “numerous convictions for dishonesty”, and there is nothing to suggest that the criminal record was given greater weight than it deserved. Nevertheless, it was a relevant matter, as was the fact that several of the armed robberies involved the abuse of conditional liberty on bail.
In the tenth and final point he claimed that he had been assured by the detective in charge of the investigation that, if he pleaded guilty promptly, the detective would recommend a non-parole period of four to five years. He added that he informed his barrister of this, but she failed to bring it to the attention of his Honour. It need hardly be said that the determination of sentence is a matter for courts, not the police. If the detective had given any such undertaking, it could not have had the slightest influence upon his Honour’s decision.
Put shortly, Mr Rumore’s submissions were that his Honour failed to give adequate weight to the applicant’s age and his subjective case, to his remorse and progress towards rehabilitation, and to the principle of totality. However, the applicant was no stranger to conflict with the criminal law and he stood for sentence for criminality of a high order. In my view, the effective sentence of twelve years imprisonment fairly reflects the favourable features of his subjective case and demonstrates the degree of moderation which the principle of totality requires. Equally, I am satisfied that an effective non-parole period of eight years is appropriate to mark the applicant’s criminality, and parole eligibility of four years is more than enough to foster his rehabilitation.
I would grant leave to appeal but dismiss the appeal.
ADAMS J: I agree.

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LAST UPDATED: 17/06/2003