R v Christopher Menouhos; R v Dean Ian Horst; R v Daniel Bezjak; R v James Button

[2017] NSWDC 421

District Court

New South Wales

Medium Neutral Citation:

R v Christopher MENOUHOS; R v Dean Ian HORST; R v Daniel BEZJAK; R v James BUTTON [2017] NSWDC 421

Hearing dates:

24 February 2017

Decision date:

28 April 2017

Jurisdiction:

Criminal

Before:

KING SC DCJ

Decision:

BEZJAK
Convicted on each count.
Indicative sentences:
COUNT 1, B&E w/i to commit serious indictable offence, larceny, with aggravation, knowing people there: Total Term - 5 years 4 months, NPP - 4 years
COUNT 2, recklessly wound in company – accessory after the fact: 18 months fixed term of imprisonment
COUNT 3, recklessly wound in company – accessory after the fact: 18 months fixed term of imprisonment
Aggregate sentence:
Special circumstances found – need for a more extended period of supervision than provided by the statutory relationship to assist the offender to reintegrate into the community & rehabilitate.
Sentenced to a term of imprisonment for 7 years with a non-parole period of 5 years to commence on 29 April 2016 and to expire on 28 April 2020, and a balance of term of 2 years commencing on 29 April 2020 and expiring on 28 April 2022. Eligible for release to parole on 28 April 2020.

 

BUTTON
Convicted on each count.
Indicative sentences:
COUNT 1, B&E w/i to commit serious indictable offence, larceny, with aggravation, knowing people there: Total term of imprisonment – 5 years 8 months; NPP – 4 years & 3 months
COUNT 2, recklessly wound - in company: Total term of imprisonment – 4 years; NPP – 3 years
COUNT 3, recklessly wound - in company: Total term of imprisonment – 4 years; NPP – 3 years
Aggregate sentence:
Special circumstances found - need for a more extended period of supervision than provided by the statutory relationship to assist the offender to reintegrate into the community & rehabilitate.
Sentenced to a total term of imprisonment of 8 years with a NPP of 5 years and 6 months to commence on 9 July 2016 and to expire on 8 January 2022 and a balance of term of 2 years and 6 months to commence on 9 January 2022 and to expire on 8 July 2024.
Eligible for release to parole on 8 January 2022.

 

HORST
Convicted on each count.
Indicative sentences:
COUNT 1: Total term of imprisonment of 6 years with a NPP of 4 years and 6 months
COUNT 2: Total term of imprisonment of 8 years with a NPP of 6 years
COUNT 4: Total term of imprisonment of 4 years with a NPP of 3 years
Aggregate sentence:
Special circumstances found – need for a more extended period of supervision than provided by the statutory relationship to assist the offender to reintegrate into the community & rehabilitate.
Sentenced to a total term of imprisonment of 10 years with a NPP of 7 years to commence on 19 September 2016 and to expire on 18 September 2023 and a balance of term of 3 years to commence on 19 September 2023 and to expire on 18 September 2026. Eligible for release to parole on 18 September 2023.

 MENOUHOS
Indicative sentences:
COUNT 1 [SEQ 9], B&E w/i to commit serious indictable offence, larceny, with aggravation, knowing people there: - Total term of imprisonment of 6 years – NPP of 4 years and 6 months
COUNT 2, wound w/i to cause GBH – in company: Total term of imprisonment of 8 years – NPP of 6 years
COUNT 4, recklessly wound – in company: Total term of imprisonment of 4 years – NPP of 3 years
COUNT 1 [SEQ 10] : Agg B&E & commit serious indictable offence - in company – larceny
+ Form 1 Matter [SEQ 3] Carry cutting implement taken into account: Fixed term of 2 years and 6 months
Aggregate sentence
Special circumstances found - need for a more extended period of supervision than provided by the statutory relationship to assist the offender to reintegrate into the community & rehabilitate.
Sentenced to a total term of imprisonment of 10 years and 6 months with a NPP of 7 years and 6 months to commence on 8 October 2015 and to expire on 7 April 2023, and a balance of term of 3 years to commence on 8 April 2023 and to expire on 7 April 2026.
Eligible for release to parole on 7 April 2023.

Catchwords:

CRIMINAL – Sentence – break & enter with intent to commit serious indictable offence, larceny, with aggravation, knowing people there - recklessly wound - in company – home invasion – joint criminal enterprise – subjective matters - aggregate sentences

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Richards (1981) 2 NSWLR 464
Pearce v The Queen (1998) 194 CLR 610

Category:

Sentence

Parties:

Regina
Daniel BEZJAK
James BUTTON
Dean Ian HORST
Christopher MENOUHOS

Representation:

Counsel:
Crown: Mr B Hatfield
Bezjak: Mr P Kondich
Button: Mr M Burke
Horst: Mr R Bonnici
Menouhos: Mr C Evans
Solicitors:
Crown: Mr A Strik
Button: Ms R Dunlop
Horst: Mr A Majdoub
Menouhos: Mr C Kapsis

File Number(s):

2015/00103877 2015/00132158 2015/00125631 2015/00126797 2015/00126814

Judgment

1. Daniel Bezjak, James Button, Dean Horst and Christopher Menouhos all appear for sentence in relation to a number of offences. Mr Bezjak appears in respect of three offences, the first being an offence contrary to s 112(2), being an aggravated break, enter and steal at 4 Adamson Avenue on 8 February 2015, perhaps more appropriately referred to as breaking and entering, and then in the said dwelling house committing a serious indictable offence, namely larceny in circumstances of aggravation, namely, knowing there were persons inside the dwelling house.

2. Each of Mr Button, Mr Horst and Mr Menouhos are similarly charged and are to be sentenced in respect of the same offence referred to. The maximum penalty provided for such an offence is 20 years imprisonment, and there is a legislated standard non‑parole period of five years.

3. Mr Bezjak is also to be sentenced in respect of an offence contrary to s 35(3)/s 350, being an accessory after the fact to a reckless wounding in company, and a further offence of the same nature, one relating to a machete wound to a Mr Harrison, and the other relating to a wound caused by a shotgun pellet or pellets to the same individual. The maximum sentence provided for each of those offences is five years imprisonment. There is no standard non‑parole period.

4. In relation to Mr Button, in addition to the s 112(2) offence, there are two offences contrary to s 35(3) of reckless wounding in company, again relating to the machete and shotgun wounds to Mr Harrison.

5. In respect of Mr Horst, in addition to the s 112(2) offence, there is an offence contrary to s 33(1)(a) of wound with intent to cause GBH. That charge relates to the machete wound to Mr Harrison. The maximum penalty provided for such an offence is 25 years imprisonment and there is a standard non‑parole period of seven years. He is also to be sentenced in respect of a further offence contrary to s 35(3), being reckless wounding in company relating to the injuries caused by the shotgun pellets to Mr Harrison. The maximum penalty for an offence contrary to s 35(3) is ten years imprisonment, and there is a standard non‑parole period of four years.

6. In respect of Mr Menouhos, in addition to the s 112(2) offence, there is an offence contrary to s 33(1)(a) of wound with intent to cause GBH, again being in relation to the machete wound to Mr Harrison. The same penalty applies as previously referred to. There is a further offence contrary to s 35(3) of reckless wounding in company relating to the use of the shotgun and the same maximum penalty and standard non‑parole period apply as previously referred to.

7. In respect of Mr Menouhos, he is also to be sentenced in respect of a further offence contrary to s 112(2) relating to a break and enter of the dwelling house of Mr Chay Lum at 85 Hampden Road, Russell Lea, and then in the said dwelling house committing a serious indictable offence, namely stealing in circumstances of aggravation, namely being in company with another person.

8. In addition, he asks the Court, when sentencing him for that offence, to take into account a further offence contained on a Form 1 pursuant to s 32 of the Criminal Procedure Act. The further offence to be taken into account is an offence contrary to s 547D of carrying a cutting implement. The maximum penalty provided for such an offence is six months imprisonment or five penalty units. I note that in the absence of it being associated with the s 112(2) offence, it is a matter that would have been dealt with in the Local Court.

9. In relation to Mr Horst and Mr Menouhos, they appear for sentencing subsequent to a trial which commenced before a jury on 11 October 2016. Each was charged with the same offences. They included four counts, the fourth count being an alternative to the third count. The third count was related to discharging a firearm, namely a sawn‑off shotgun, with intent to cause grievous bodily harm, and the alternative available for the jury's consideration was the offence that while in company with each other and a person unknown, recklessly wounded Brad Harrison relating to the discharge of the shotgun.

10. The jury returned their verdicts in respect of each of Mr Horst and Mr Menouhos on 31 October 2016, finding them guilty of Counts 1 and 2, not guilty of Count 3, but guilty of the available alternative Count 4. In respect of Mr Bezjak and Mr Button, the matter was listed for trial commencing on Monday 10 October 2016. There was some discussion between the parties on that date, and on the following day, being Tuesday 11 October 2016, pleas of guilty were entered by Mr Bezjak and Mr Button to the matters that I have indicated they are to be sentenced in respect of.

11. It is convenient at this time to refer to the availability of a discount for the utility of any plea. The pleas of guilty entered by Mr Bezjak and Mr Button in each case were very belated, falling, as they did, on the second day after the matter was listed for trial, although prior to commencement of the trial.

12. The plea was entered in circumstances where there was some variation made from the original charges to what they pleaded to. But they had not, prior to the discussions with the Crown, offered a plea to any counts, either those with which they had been charged or any alternative count. In the circumstances, I will allow a discount of 5% for the utility of the plea alone in respect of each of Mr Bezjak and Mr Button, in respect of each of the charges that they are to be sentenced for.

13. In respect of Mr Horst and Mr Menouhos, there is no discount for utility as they both proceeded to trial with one exception, and that is in respect of Mr Menouhos and the additional matter of the section 112(2) offence to which the Form 1 attaches, relating to the Hampden Road, Russell Lea premises. At the conclusion of the trial those matters were listed for trial. At the conclusion of the trial, having been found guilty by the jury, as I have indicated, Mr Menouhos then elected to plead guilty to the charges which were then to be subject to trial.

14. In respect of those offences, the plea was again a very belated plea, even though it fell before the trial had actually commenced. I have assessed the utility of those pleas, including the matter on the Form 1, as appropriately attracting a discount for utility of 5%. Each of the discounts that I have referred to in relation to each of the offenders and the individual charges has been applied to the sentences which I will reach in due course. I turn to the facts consistent with the verdicts of the jury and also consistent with what are, in essence, agreed facts as supplied in respect of Mr Bezjak and Mr Button.

OFFENCES FOR ADAMSON AVENUE, DUNDAS VALLEY:

1. The offenders participated in a joint criminal enterprise to go to 4 Adamson Avenue to break, enter and steal in circumstances of aggravation. The circumstances of aggravation are that the offenders knew that there were persons inside.

2. This particular property was targeted on the basis that the offenders expected cash, drugs or other valuables to be there for them to steal.

3. Shortly after midnight on Sunday 8 February 2015, five offenders drove to 4 Adamson Avenue in Bejzak's white Mitsubishi Lancer vehicle with the intention of entering the house and stealing money from within. This vehicle was driven to and from the location by Bezjak.

4. Some of the males were armed during the incident: at least one or more machetes, a screwdriver and a sawn‑off shotgun were produced.

5. At the time they arrived, Brad Harrison, a guest of the residents of 4 Adamson Avenue, was sitting outside in his car on the driveway of the property talking to his wife on his mobile phone. He was intending to sleep at the property that night, as was a friend of his who had also attended for that purpose, a Mr James George, who was present inside the premises.

6. As Brad Harrison sat talking to his wife, someone tapped on his window and told him to, "Get out, be quiet and go into the house." He got out of his vehicle and saw two other men walking towards the house. He noticed that the man who had told him to go into the house was carrying a sawn‑off shotgun. Instinctively, Mr Harrison grabbed for the gun, after which a tussle ensued and the shotgun went off, injuring him in the right thigh. He fell on the ground still holding the gun. He managed to fight off the offenders for some time, wielding the gun to protect himself during the fight. The men were telling him to get into the house. There was a further shot fired during the struggle.

15. In accordance with his evidence, I accept that prior to being told to get out of the car and then observing three persons to be present in close vicinity, with whom he then struggled, he observed the shadow of a figure passing by the window of the vehicle and proceeding towards the front door of the premises. It was after that observation that there was the tap on the window and he was asked to remove himself from the car and the struggle then ensued.

7. During the attack, Mr Harrison realised that something had happened to his wrist, as he noticed afterward that it was spurting blood and felt as if it was hanging from his arm. He was also wounded to the shoulder. I accept his evidence that, having alighted from the car, he proceeded to try and take possession of the shotgun and it discharged. During the subsequent struggle, it discharged again, either while still in the possession of one of the offenders or having been taken into his possession during the struggle. The struggle had commenced in the vicinity of the driver's side door of the motor vehicle he had been sitting in. It continued down the driveway to the street gutter. On his evidence, the first time at which he noticed the injury to his wrist from the machete was at a point when he had reached the gutter, still struggling with three of the offenders, and immediately prior to all four leaving the vicinity.

8. Mr Harrison was later taken to Westmead Emergency Department where the following wounds were observed:

1. A deep, penetrating wound to the right shoulder;

2. A deep laceration to the left wrist, exposing the tendons, but not severing them;

3. Pellet holes to the right thigh; and

4. Superficial abrasions to his forehead, chest, back, knees, and ankle;

16. I note that there was a further photograph produced during the trial which appeared to indicate a pellet wound to his right foot. The wound to the right thigh was said to be consistent with the use of a firearm.

9. While Mr Harrison was being attacked outside the house, one male entered the house, brandishing a machete. He said to one of the occupants of the house, Mr Hunter, "Give me your shit." Mr Hunter then wrestled briefly with that person, after which he fled, seeking refuge in a room with his then almost 8 month pregnant girlfriend. The intruder took Mr Hunter's G‑Star bum bag from him, which contained $700 in cash, as well as a sterling silver necklace being worn at the time by Mr Hunter, around his neck.

10. I further note that before that person entered the premises, Mr Hunter had heard a sound, being the discharge of the firearm, and he and Mr George had endeavoured to hold the door to the premises closed, but it was forced open by the intruder; Mr George essentially then fleeing through the back of the house.

11. After being attacked, Mr Hunter saw the man leave the house and then run off with three other men. He described his attacker as wearing a black balaclava, a dark grey hooded jumper with the hood down, and possibly wearing a black hat. He noticed the man had distinctive eyes. And of the other three man he saw running away, one was wearing a grey hooded jumper, and the other two, dark jumpers.

12. Mr George, who was to stay overnight at 4 Adamson Avenue, was watching the television when he heard a loud bang and his friend, Mr Harrison, shouting "What are you doing? Get out of here." He went to the door to see what was happening, whereupon he saw the man running up the stairs, brandishing a machete with a blade some 30 centimetres in length. He described him as wearing a grey hooded jumper, a blue or black beanie hat, and with a black bandanna across his face. He appeared to him to be of solid build and at least 6 foot tall.

13. He could see a commotion outside involving Mr Harrison and heard a shot go off. He and Mr Hunter tried to shut the door on the man with the machete, at which point Mr George heard a further shot and ran out to the back of the house, over the back fence, before walking to the front of the neighbour's yard. He then observed Mr Harrison lying on the stairs leading to the front door of the premises with injuries to his foot, wrist, shoulder, and head.

14. Mr Hunter's partner, Jasmine Truran, also resided at 4 Adamson Avenue. She was at the home at about midnight, playing on the computer. She heard the dog barking and noise from the lounge and walked into the hallway where she saw a man wearing a black hat with a bandanna over his mouth threatening her partner with a machete. She further described the man as “really tall”, aged about 20 to 25 years and wearing a dark grey jumper and black pants. She heard him yelling at Mr Hunter, "Give me your money. Where's your stuff?" To her, he sounded as though he had a Lebanese accent.

15. Ms Truran did not notice any blood on the handle of the machete. She ran back to her room to try to find her mobile phone to call the police. Mr Hunter followed her into the room and tried to close the door, but the male got through. He was holding up the machete as if he were going to strike Mr Hunter. The dogs were barking and jumping at the male, who then backed off and ran out of the room and down the hallway. Mr Hunter gave chase. Ms Truran then walked to the front door and saw Mr Hunter coming up the driveway with Mr Harrison, who was covered in blood.

16. The property was later examined by police and damage was observed to the timber front door, with the timber split on the doorjamb and the strike plate at a side angle. There is no evidence as to the cost of repair of any damage.

IDENTIFICATION OF THE OFFENDERS

BEZJAK'S VEHICLE

17. A neighbour who was sitting at home on his computer at about midnight heard a loud bang outside followed by what he described as “unhappy” male voices. He looked out a bedroom window and saw three men running down Adamson Avenue. One of them appeared to be carrying something 2 or 3 feet long. They ran to a white Mitsubishi Lancer parked in Rope Street and got in, after which the vehicle sped off. He observed that the vehicle had yellow numberplates with black symbols, with the first or second symbol being the letter Q. He later informed police that the tail lights were triangular in shape and that he believed the Lancer was a 2000 or 2001 model.

18. While at Adamson Avenue, Mr Hunter informed an officer, when asked if he knew of anyone who would want to do this to him, that 6 months earlier he had had an issue with a man he would not name who lived in the middle building of the Three Sisters housing complex in Telopea. On a subsequent occasion, Mr Hunter later identified that person as a man named Gavin Black.

19. The officer later drove the short distance from Adamson Avenue to the Three Sisters housing complex and entered the car park at the rear of 33 Sturt Street. He then walked to the car park of 29 Sturt Street, being the middle of the three towers, where he saw parked near the entrance a white Mitsubishi Lancer bearing the registration number QSC 646, which was registered to the offender Bezjak. The registration plates were black on yellow in colour, and vehicle had triangular shaped tail‑lights. He placed his hand on the bonnet and felt that it was slightly colder than lukewarm in contrast to the surrounding vehicles which were observed to be covered in dew.

20. The officer observed a screwdriver wedged in the seat running frame, next to the centre console. It had a gold and orange coloured handle which he recognised as being identical to a screwdriver that he had earlier located on the grass in the front yard area outside 4 Adamson Avenue.

21. At about 4.40am the Lancer was removed by police and was later forensically examined.

PLATYPUS SHOES BAG

22. When Mr Harrison was being carried to an ambulance, he was heard by an officer to say, "The bags are not ours, they don't belong to us." Officers located two bags on the front lawn, one being for the brand Platypus Shoes containing a receipt for the purchase of a pair of shoes at 8.51pm on 5 February 2015 at the Westfield Parramatta store.

23. A casual worker at the Platypus Westfield store was able to confirm that on the evening of 5 February 2015, she was working and sold a pair of shoes with a 40% staff discount to a person she knows as “Gavin”.

24. CCTV was obtained from Westfield Parramatta, and showed Bezjak's Mitsubishi Lancer entering the car park at 8.25pm. CCTV also showed Gavin Black, Bezjak, and another man not linked to the offence together in the shopping centre. Black can be seen to be carrying a Platypus bag. Bezjak's car left the car park at 9.42pm.

25. Gavin Black resides at the unit complex at 31 Sturt Street, his unit being on the first floor. At 10.49pm on 5 February, Black, Bezjak, and the third male were seen to arrive back at the entrance to the unit complex. Black was then carrying a Platypus bag.

CCTV FROM 31 STURT STREET FOR 7 AND 8 FEBRUARY 2015

26. Examination of CCTV footage from cameras located in the foyer and stairwell of 31 Sturt Street recorded all four of the offenders attending those premises on 7 February, together with a number of other persons.

27. Bezjak is seen leaving at 22 seconds past midnight wearing a dark coloured hooded top with the hood down, with the distinctive rectangular white pattern and lettering on the chest. His face is clearly visible. He is seen returning at 20.05 wearing the same hooded top, this time with the hood up. He confirmed to police that he was the person seen in the CCTV image at that time, however he offered no explanation as to the identity of the person he was seen leaving with, claiming it may have been a coincidence they all arrived and left at the same time. He accepted that it would take approximately two minutes to drive from Sturt Street to Dundas Valley.

28. Button was seen leaving at 27 minutes past midnight, wearing a dark hooded top and dark tracksuit pants bearing a white stripe down the side. His hood was down, although his face was visible. He is observed returning at 19.54 in the same clothing but on this occasion with the hood up. The CCTV footage showed the offender Button and the offender Bezjak leaving the complex just moments prior to the offences with three other heavily disguised males. One of those heavily disguised males was carrying a black Platypus branded bag.

17. Similarly to the offenders Bezjak and Button, the offenders Menouhos and Horst were recorded by the CCTV coverage arriving at the Sturt Street premises some time after 4pm on 7 February. The CCTV coverage recorded them later in the day leaving the premises wearing the same clothing that they had arrived in and returning some hours later dressed in different clothing, Mr Horst in particular wearing a grey hooded jacket with black trousers or tracksuit pants and a black bandanna covering his face. Mr Menouhos returned, having changed from green or blue coloured shorts and a white cap and T‑shirt, then wearing a grey hoodie, carrying a black bag and also having the hoodie up and his face covered by a black garment or material. In addition, he had changed into tracksuit pants with a white stripe, that clothing being similar to the clothing seen when the men departed prior to attending the scene of the offences.

18. When departing from Stuart Street, immediately prior to travelling to Mr Hunter's premises, Mr Menouhos is recorded in CCTV footage carrying, as previously referred to, the black Platypus brand bag, which appeared, from the CCTV footage, to contain something. He had also changed from the white hat that he had been wearing when he first attended the premises to a blue or purple cap. When returning after the commission of the offences, he was carrying a black bag or garment. When Mr Horst returned after the offences, he was recorded wearing the same clothes that he had departed in as well as with what appears to be a black bum bag in his left hand.

19. Also of note in relation to the various offenders is that at various times, either going down the stairwell or crossing the foyer to leave or return, a number of them can be observed to be wearing gloves. In particular, Mr Horst is wearing at least one glove and apparently carrying a further glove when he exited the premises down the stairwell in order to travel to Mr Hunter's premises.

20. Mr Button, at least on his return - after having arrived that day wearing a black Nike singlet and blue shorts, and later observed to be in black shorts with a white T‑shirt, carrying a bag, and leaving through the foyer - having donned a black hoodie and a pair of black track pants with a broad white stripe down the leg, is observed returning in the same clothing, although with the hood up and wearing green or purple gloves, as he returns through the foyer. He subsequently departed the premises, having changed back into the clothing of black shorts and a white T‑shirt.

21. In short, it is apparent that each of the offenders - and although I have not referred to the other person seen in the CCTV footage at relevant times entering and leaving from Sturt Street - that each of the four offenders, together with a fifth unknown person, attended Mr Black's premises and at various times either went outside to change the clothing they were wearing or changed in Mr Black's premises into clothing they had brought with them, and into his unit, before subsequently departing to travel in Mr Bezjak's car to Mr Hunter's premises. It is clear in those circumstances that the offence was premeditated and organised.

22. The CCTV footage does not allow a conclusion as to where the weapons were obtained from, or as to who used them at any time, with one exception. I accept beyond a reasonable doubt, despite some discrepancies in the descriptions given of the offender who entered Mr Hunter's premises and brandished the machete, that the jury found that that was in fact the offender, Dean Horst. The fact that Dean Horst can be identified beyond reasonable doubt as being that person, however, does not mean that he was the person who inflicted what has been referred to as “the machete injury” on Mr Harrison.

23. As I have previously indicated, I accept that there were five persons who travelled from Sturt Street, Mr Bezjak being the driver of the vehicle. Four of the five then attended at 4 Adamson Avenue, Mr Horst being in effect the shadow that went past Mr Harrison's window, and the person to in effect “make the beachhead” at the door of 4 Adamson Avenue and force entry. The other three persons, including an unidentified person, were responsible for the assault on Mr Harrison, one of them using a shotgun that had been loaded with two cartridges, and I accept the description given by Mr Harrison that it was a double barrel sawn‑off shotgun. As to who had the sawn‑off shotgun, it is impossible to determine on the evidence other than that it was one of three persons, that is, at least not Mr Horst and not Mr Bezjak.

24. As to the injuries suffered by way of the machete wound to the wrist, on Mr Harrison's evidence as to the timing, it is a possibility that it was inflicted by Mr Horst after he had left the house and then, finding that his co‑offenders had not in effect been able to reach the beach, having been delayed by their attack on Mr Harrison, it is possible that his last act on leaving was to use the machete against Mr Harrison. However, there may have been more than one machete or more than one implement capable of inflicting the injury, and there is no specific evidence before the Court that would allow the Court to find beyond reasonable doubt that it was Mr Horst that inflicted that injury on Mr Harrison.

25. As to Mr Bezjak, the facts before the Court for sentence indicate the following:

"Mr Daniel Bezjak was the driver of the vehicle to and from the offence. Prior to departure, he was fully aware of the events that were to take place. In relation to Counts 2 and 3, he was an accessory after the fact, knowing that these were reasonably foreseeable to the joint criminal enterprise, and aided the other four offenders to avoid detection by driving them away from the scene. Within the hours following the offence, Mr Bezjak removed a number of items from the getaway vehicle."

26. The Crown cannot specify what these items were due to the concealment he employed. Each entry or exit of 31 Sturt Street was captured on the building's CCTV footage. It is accepted that Mr Bezjak remained either in or in the vicinity of the white Lancer in Rope Street and was not in fact physically present at 4 Adamson Avenue.

27. The offences were clearly organised and planned in advance, including obtaining a number of weapons for use in the planned home invasion to be conducted for the purpose of obtaining drugs, money or other valuables. Offenders who take part in a joint criminal enterprise are of course criminally liable for the conduct of any other participant carrying out the objects of the joint criminal enterprise. However, criminal liability and moral culpability are not the same.

28. In relation to Mr Bezjak, it is important to note that the charges in respect of him relate to his assistance in driving four other persons to the premises but also otherwise to driving them away and being an accessory after the fact to, in each case, the reckless wounding caused to Mr Harrison, placing him in a significantly different position from each of the other offenders.

29. As I have indicated, I accept beyond reasonable doubt that it was Mr Horst who was the person described during the trial by Mr Bonnici, counsel for Mr Horst, as "machete man." While his actions in relation to the breaking into the home, his physical violence towards Mr Hunter and the theft of the material, including of course the brandishing of the machete at Mr Hunter, is clearly conduct by him in carrying out the joint criminal enterprise. However, in relation to the altercation outside, while Mr Button and Mr Menouhos were party to that, it cannot be established who brandished any particular weapon or who caused any particular injury.

30. Relevant to the objective seriousness and aggravating features in respect of the principal offences in respect of 4 Adamson Avenue, being first of all the s 112(2) offence, which is relevant to each of the offenders, I note the following: the offence was committed at night; it involved a physical altercation with the occupant, Aaron Hunter, although I note he suffered no significant injuries as a result; it involved a physical altercation with Mr Harrison in an endeavour to force him to go into the house; that while in the premises, the machete was brandished to place the occupants in fear; the offence was committed in company. Although only Mr Horst managed to enter, it was evident to Mr Harrison and Mr George that there were others outside in an altercation with Mr Harrison.

31. 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 they departed to travel to Adamson Avenue.

32. In respect of the offences contrary to s 33(1)(a) relating to Mr Horst and Mr Menouhos, and in regard to the use of a machete, the relevant matters are: that the machete was used as a weapon; that there was a significant degree of violence; and of course, the nature and extent of the wound to Mr Harrison's wrist, which while not life‑threatening was in my view a substantial injury, and in respect of which he suffers ongoing difficulties. He, being a truck driver, has difficulty with increasing stiffness and pain in using his wrist and hand while journeying in his occupation. And again, that the offence that involved the machete was committed in company.

33. As to the offences contrary to s 35(3) regarding the machete in respect of Mr Button and the shotgun in respect of Mr Button, Mr Horst, and Mr Menouhos, the following matters are relevant: that the machete and/or the shotgun in the relevant case was used as a weapon; the significant degree of violence and substantial risk of injury in respect of the machete as referred to; also of relevance are the injuries from the use of the shotgun. I accept that on the evidence the shotgun injuries were relatively superficial and are not being said by Mr Harrison to have resulted in any significant ongoing difficulty.

34. As to the offences in respect of Mr Bezjak, being the offences of being an accessory after the fact to the reckless wounding of Mr Harrison by machete and shotgun, I note that his principal assistance in committing that offence was driving the perpetrators from the scene. Taking that course assisted them to evade justice for a period slightly in excess of two months. I accept that his motivation in relation to committing that offence was his own criminal association with the other offenders regarding the s 112(2) offence.

35. I find in respect of the s 112(2) offences that it is approaching the mid‑range of objective seriousness, and similarly, in respect of the s 33(1)(a) offences previously referred to, I find that they were similarly approaching the mid‑range of objective seriousness. And similarly, in respect of the s 35(3) machete offence in respect of Mr Button, and the shotgun offences in respect of Mr Button, Horst, and Menouhos: I find that again, they were approaching the mid‑range of objective seriousness.

36. Whatever Mr Bezjak knew about what was planned or what weapons were or were not being taken, or had been taken, I note that a resident who was within his own home, further away from where the Lancer motor vehicle was parked in Rope Street, had no difficulty in hearing and being alerted by the sound of the discharge of the shotgun. Either that resident or another resident who gave evidence observed an object being carried back to the Lancer motor vehicle as the offenders departed. There were a total of five persons. Mr Bezjak had to have been alerted by the manner in which people changed their clothing at various times before attending Adamson Avenue, and had to at least know of the presence of a weapon by the time the shotgun was discharged and persons returned.

37. I note that with the exception of a screwdriver and two empty carry bags, no weapon was located at the premises, and each weapon, being at least a machete and a shotgun, was carried away to the motor vehicle where Mr Bezjak was waiting to assist in transporting the offenders away.

38. While his principal assistance in relation to the s 35(3)/s 350 offences was driving them away to assist them to evade apprehension and justice, he nonetheless must have been aware at least by the time they returned to the motor vehicle that a serious offence was highly likely to have been committed, apart from any break and enter, considering that, in my view, he must have heard the discharge of the firearm as residents in the area did. Nonetheless, he provided assistance. In my view, the objective seriousness of that offence also approaches the mid‑range of objective seriousness.

39. I have yet to deal with the facts in relation to the offence involving Mr Menouhos and 85 Hampden Road, and it is appropriate that I do so now. The facts provided to the Court, which have not been contested, are as follows:

1. On Wednesday 8 April 2015, the occupier of 85 Hampden Road, Russell Lea, a Mr Lum Chay or Chay Lum, as he is referred to in the copy of the indictment, returned home from work at approximately 9.30am. As there was a black Commodore parked outside his premises, he parked outside number 83. As he entered his front gate and was walking to the front door, he heard the Commodore beep its horn once and then take off at speed.

2. When he entered the front door, Mr Chay immediately noticed his bedroom had been ransacked. He then saw two men, being Mr Menouhos and his co‑offender in relation to that offence, Mr Button, wearing balaclavas and running towards the rear of the house. They exited through a rear window which was already broken. Mr Chay gave chase, cutting his right forearm as he followed them through the window. The two men jumped over a side fence and Mr Chay noticed one of them drop a white glove. They ran off along Hampden Road and in to Sibbick Street, chased by Mr Chay. At one point on Sibbick Street, the offender Button stopped and threatened Mr Chay with a blue crowbar, causing him to back off. That was witnessed by a bystander, Mr Paul Mulvey, who called Triple‑0 and continued to follow the two men into Bouvardia Street.

3. The co‑offenders Menouhos and Button continued running into Mons Street and Tait Street, followed by Mr Mulvey, who lost sight of them on Tait Street momentarily. He then caught up with them in a driveway in Tait Lane, where he saw them removing their hoodie tops. He then followed them into Lyons Road, where he saw them stopped by police officers.

4. An officer heard a report over the radio of two men running along Mons Street wearing balaclavas, and shortly after saw the co‑offenders running along Lyons Road. They reduced their pace to a walk when they saw the police vehicle.

5. The officer approached Mr Menouhos, who he noticed was sweating profusely. A colleague approached Mr Button, who complained about being hot.

6. An officer directed Mr Menouhos to get on his knees and he responded by removing the backpack he was wearing and taking out a knife from his pocket. The officer drew his firearm in response and Mr Menouhos then dropped the knife when directed to do so. The co‑offenders were separated and handcuffed.

7. Mr Chay had returned to Hampden Road and his premises after being threatened by Button. He again observed the Commodore vehicle at this time driving up and down the street. He went back inside his house, and noticed that a PlayStation 4 games console and other items were missing. The backpack that the offender Menouhos was seen to be wearing was later searched and found to contain property belonging to Mr Chay, including the games console. A glass jar of coins had also been stolen from the premises and broken during the offender's escape. A Hansel and Gretel trail of coins led police back to 85 Hampden Road, and the blue crowbar used to threaten Mr Chay was located outside 18 Tait Street.

8. There was damage to the front door of 85 Hampden Road consistent with an attempt to gain entry using an instrument such as a crowbar. The back window was broken, appearing to be consistent with the point of entry, after having failed to get in through the front door.

9. A white glove was found outside the house near the front door on the bottom rung of a step ladder. A tape lift was forensically examined and the DNA profile of the co‑offender Button was present.

FORM 1 MATTER CARRY CUTTING IMPLEMENT

10. When arrested, a knife was produced by Mr Menouhos from his pocket.

11. Button entered a plea of guilty to a charge pursuant to s 112(2) of the Crimes Act 1900 for his part in the home invasion and received the benefit of a two year Intensive Correction Order. In respect of the correction of parity in regard to those offences with the co‑offender Mr Button, it is relevant to note that on 23 March 2016, Sides QC DCJ delivered his reasons on sentence, determining that a term of imprisonment of two years was appropriate, and then adjourning the matter to 16 May 2016 for the purpose of an ICO assessment being prepared. On 16 May 2016, the co‑offender Button having been determined to be suitable for such an order, his Honour imposed a sentence of two years imprisonment to be served by way of an Intensive Correction Order.

40. His reasons on sentence from 23 March 2016 indicated that he allowed a full utility discount of 25%; that he further found that the co‑offender was remorseful and on that basis further reduced the sentence as well as also taking into account, in his view, that there was no professionalism in terms of committing the offence or any particular aggravating features apart from being in company, and finding that the matter was somewhat below the middle of the range of objective seriousness. He also noted that there was no evidence of the value of repairs either to the window or the door. The only injury suffered to the victim was a cut to his arm as he left through the window to chase the offenders, and there was no evidence of any permanent disability or disfigurement as a consequence. He also noted that the property stolen was recovered and did not appear to be of a type where it would have sentimental value.

41. In addition, in considering the subjective circumstances of the offender, he found that he had had a dysfunctional upbringing and was satisfied that it was appropriate to make a finding of some reduction in moral culpability as a result, however indicating that the weight to be given in a matter such as this was less than it might be in other cases, particularly as at the time the matter was before him, noting that unlike many other individuals Mr Button had only one previous matter on his record, and on the evidence before his Honour, had been able to abstain from illicit substances from the age of about 24 or 25.

42. In respect of this particular offence and its objective seriousness, I note, as did his Honour, that the damage was limited; there is no evidence as to the value of any repairs; there is no significant disability or permanent injury caused to Mr Chay; that the property taken was recovered and was not likely to have any significant sentimental value, and indeed there was no evidence as to actually what was taken by way of the coin jar and left as a Hansel and Gretel trail.

43. Although the facts refer to the premises as being ransacked, there was no evidence of any particular damage other than what I have referred to. There was, however, on the facts, evidence of planning: there was a Commodore left outside, parked in the street outside the premises as a lookout to provide a warning to those inside; and the co‑offenders had clearly premeditated the commission of the offence, taking with them necessary implements such as the crowbar to assist in gaining entry, and items to disguise, such as balaclavas and gloves. I accept the assessment of his Honour Judge Sides that in the circumstances it can be accepted that the offence was somewhat below the middle of the range of objective seriousness.

44. I'm intending to move onto subjective matters and I don't want to start that and have to stop partway through. So what I think I'll do now is to take an early lunch break and return at 1.30 to continue. Could I just ask in relation to what I have covered in terms of the facts and objective seriousness in relation to any of the offences, is there any particular matter that counsel would like to suggest that I am wrong in respect of or have omitted?

EVANS: No. Nothing, your Honour, thank you. It's on behalf of Mr Button.

LUNCHEON ADJOURNMENT

STRIK: Your Honour, I don't know if this is an appropriate time, I found out those inquiries; he was on bail. I think my friend earlier conceded that‑‑

HIS HONOUR: Yes, he did.

STRIK: ‑‑in relation to Mr Menouhos.

HIS HONOUR: I thank you for that.

STRIK: I have three documents if your Honour wishes to see it. I've showed my friend.

HIS HONOUR: No, it's okay. If it's accepted, that's fine. I just wanted to make sure Mr Evans wasn't accepting something which seemed to be obvious if there was in fact some other explanation, even if that was difficult to think of.

45. Just before I turn to the subjective matters, it is one thing to make findings as to the objective seriousness of individual offences when they are considered in isolation, but as a general offence, which I might refer to as home invasion, the circumstances of the charges arising from this matter indicate that it has to be viewed as an objectively very serious example of a home invasion.

SUBJECTIVE MATTERS

DANIEL BEZJAK

46. Mr Bezjak did not give evidence on sentence. Available to the Court in respect of subjective matters is the evidence of Robert Dundas; Mr Meddes; a letter from the Reverend Peter Baines, being the chaplain at Long Bay Correctional Centre; and the offender's criminal history; a pre‑sentence report from K. Menemenios, dated 15 February 2017; a psychological report from Susan Hawil, dated 3 February 2017; and a letter to the Court from the offender, dated 20 February 2017. The subjective matters are drawn from that material.

47. The offender was 21 years of age at the time of the offending and is now 23 years of age. The evidence given by Mr Robert Dundas indicates that the offender attends weekend services at Long Bay Correctional Centre and that Mr Dundas has spoken with the offender about his offending. According to Mr Dundas's opinion, the offender's involvement in this matter weighs deeply on him. He otherwise refers to him as being a pleasant and quiet man.

48. Mr Meddes's evidence was that he is a builder who is concerned in building maintenance. He has known the offender since he was seven years of age, when Mr Meddes first met the offender's mother and had a relationship with her between 2000 and 2006. The offender, according to Mr Meddes, regards Mr Meddes as in effect his father, and Mr Meddes regards the offender as being intelligent and very smart, having been able to assist Mr Meddes in relation to his paperwork for his business. He indicated that when released, he will support the offender by providing him with a job in his business.

49. Reverend Baines indicates that in his view, the offender is coming to terms with the gravity of what he has done in initially becoming a drug user and then engaging in criminal activity. He says that he is eager to enter the workforce when he leaves gaol and also that he understands that Mr Meddes is the proprietor providing him with future employment. He is said to never miss a church service.

50. The report from the psychologist, Ms Hawil, indicates that the offender stated that he was born in Australia and has a Russian background. However, according to the pre‑sentence report, he was born in Israel and migrated to Australia in 1995, gaining his Australian citizenship in approximately 1998. Although there is an apparent discrepancy between the two reports, I do not consider it is a matter of any significance. He is said to have had an unstable upbringing, his mother having had multiple partners. He is the eldest of three children from his mother, and his parents separated when he was some six months of age. He has had no contact with his biological father and he describes a relationship with his mother and siblings that is supportive.

51. He has had to move homes on multiple occasions during his childhood and adolescence and was residing on a number of occasions at the age of six, 11 and 12 years of age in refuges following a number of his mother's relationship breakdowns. He was suspended from high school during Year 10 because he was not motivated. He did not return to formal education, leaving school at 16 years of age. He is said to have had sporadic employment at 17 years of age, with two years being the longest period of employment.

52. As referred to in the pre‑sentence report and as indicated in the psychological report, he was employed as a scaffolder for 1.5 years, as a painter for 1.5 years and as a factory hand/blind installation person for a period of some six months in the period since he has left school. He is said to have completed a pre‑vocational mechanics course in 2010 and a Certificate 11 in Information Technology in 2011.

53. He started binge drinking alcohol at 16 years of age, and by the age of 17 he was consuming up to one bottle of spirits daily which decreased to what is referred to as "recreational drinking" at 20 years of age. He has a history of illicit substance use commencing with cannabis when he was 16 years of age, becoming 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 indulge in illicit polysubstance use until he went into custody at the age of 21. He informed the pre‑sentence officer that at the time of committing the offence he had been drinking during the evening and claimed that he was still under the influence of methamphetamines from the evening prior to the event.

54. The psychological report indicates that he was introduced to MDMA and crystal methamphetamine, which is his drug of choice. Although his initial use was sporadic, it increased until he was using the drug daily for a period of two months, and he has been using it on and off for a period of a few years. He claimed that he was affected by crystal methamphetamine at the time of the offending and that he had not slept for approximately 48 hours prior to the time of the offence. Despite the references to his binge drinking and his consumption of one bottle of spirits daily, referred to in the pre‑sentence report, the psychological report indicates that he informed the psychologist that he "denies any history of alcohol misuse".

55. The pre‑sentence officer assessed him as having a medium risk of reoffending. The psychologist had carried out a number of tests but she found that he had no history of oppositional defiant disorder or conduct disorder and stated that there was also no history of juvenile criminal offences, which of course was relevant to her overall assessment. That, however, as I will come to in due course, is not correct, and significantly affects what weight can be placed on the psychological report. The psychologist stated:

"Mr Bezjak's behaviour on the day of the offence should be viewed in context of his psychological symptoms which caused impairment to his capacity for reasoned evaluation of options open to him. It appears that Mr Bezjak's substance use may have further impaired his judgment and decision making."

56. She had diagnosed him as meeting the criteria for a diagnosis of substance use disorder, amphetamine type substance..(not transcribable)...a number of other tests were carried out, indicating that he had an average non‑verbal intelligence; suffered from mild levels of depression, low levels of anxiety; and according to the assessment by the psychologist, fell into the low range for re‑offending. Of course, I note, as I have already indicated, although the psychologist refers to having available to her a criminal history bail report, she believed that he had no history of juvenile criminal offences, which is in fact incorrect.

57. In 2010, in the Kogarah Children's Court, a charge of on train not make ticket available for inspection was dismissed with a caution, being two counts, which I note is, of course, not relevant to current sentencing but does indicate that there is the commencement of a history in the Children's Court, or as a juvenile.

58. In July 2011, he was charged with an offence occurring on 17 April 2011, being robbery in company. In September 2011 at Bidura Children's Court, he received a Control Order of nine months with a non‑parole period with conditions to include 26 days supervision by Juvenile Justice at Wollongong and to undertake any programs or courses as directed.

59. In November 2011, at the Sutherland Children's Court, he was dealt with for the offence of receive/dispose of stolen property less than $5,000 in value, in respect of which he received a bond pursuant to s 33(1)(b) of six months. There was a further offence approximately one month later in July 2011 of assault occasioning actual bodily harm in company of others. He was dealt with at the Sutherland Children's Court in November 2011, and he received probation pursuant to s 33(1)(e) of 12 months with supervision.

60. His first adult offence was in relation to an offence committed on 24 March 2012 of affray, dealt with on 21 August 2012 at the Downing Centre Local Court. He received a Community Service Order of 50 hours. There was a subsequent offence of special category driver driving special range PCA, which is of no relevance for current purposes, which was dismissed pursuant s 10; that is, with no recorded conviction.

61. However, that record indicates that in part the psychologist's conclusion as to his being in the low range for re‑offending has to be treated with some circumspection. She summarised his position as being that he came from an extremely unstable childhood; was exposed to domestic violence throughout his childhood and adolescence; has been using illicit substances to repress his past negative life; and that he has limited family and social support networks; and has not previously received any psychological treatment. According to the psychologist, she offers the following opinion, "It is the assertion of the author that there is a direct link between the alleged offences and Mr Bezjak's mental condition." -

SUBSTANCE USE ISSUES

62. "Mr Bezjak's behaviour on the day of the offence should be viewed in the context of his substance use issues, as a result of psychological trauma stemming from his childhood and adolescent years. It appears that Mr Bezjak’s substance use may have impaired his judgement and decision making on the day of the offence. It is further asserted that due to Mr Bezjak's past negative life events, he has become increasingly violent with substance use. Mr Bezjak's significant sleep deprivation following the use of crystal methamphetamine had also impaired his capacity for reasoned evaluation of options open to him."

63. I note Mr Bezjak did not give evidence on sentence. There is nothing more before the Court other than the assertions he made to the psychologist about his condition on the day of the offence. While I have no difficulty in accepting that he has from time to time in the past abused prohibited drugs, there is no independent evidence of him being in any way substantially affected on the date of the offence.

64. As previously indicated, on behalf of Mr Bezjak, a letter from him to the Court was tendered on sentence. As indicated at the time that it was tendered, I place very little weight on letters from offenders tendered on sentence in circumstances where the offender is not prepared to give the evidence on oath and be cross‑examined in relation to the assertions made in the letter or correspondence.

65. He endeavours in the letter to distance himself by way of limited knowledge of the co‑offenders prior to the evening, and repeats what he has otherwise said to those assessing him, "I believe ice and alcohol greatly impaired my judgement. There is not a day I don't think about how that stupid decision ruined my life and how badly I regret it." Otherwise the letter goes on to talk about his observations of how difficult it is to be in prison surrounded by other offenders, violence and intimidation. I have no doubt that Mr Bezjak regrets his current position in gaol.

66. In respect of his assertions to being substantially affected by drugs and/or alcohol on the evening in question, I note that he can be viewed at various times prior and after the offence on the CCTV footage. It is difficult to assess from simple CCTV coverage the state of an individual's sobriety or the extent to which they might be affected by drugs. However, there is nothing in his conduct that is recorded in the CCTV footage that appears to indicate that he is anything other than relaxed and physically able to move about without any drug or alcohol effect being evident.

67. It is common, unfortunately, for offenders to believe that if they can convince the Court that they were affected by drugs or alcohol at the time of the offending, that it somehow reduces their moral culpability for committing the offence. The fact is that Mr Bezjak participated in the offences in the manner that I have previously referred to in dealing with the facts, and whether or not he may have been affected by alcohol and/or drugs, his moral culpability for so participating is not diminished -noting, of course, that it will be evident from what I have said that I have significant difficulty in accepting untested assertions made to psychologists, pre‑sentence officers, or in letters to the Court.

68. I accept that he retains the support of Mr Meddes, and that that may be of some assistance to him when released. The pre‑sentence report also indicates that "During the interview, the offender minimised his violent offending behaviour, indicating he was only the driver, and was not aware that the co‑offenders were carrying weapons." On the limited evidence available, I am unable to find that there is evidence of genuine remorse and contrition; although I accept, on the basis of his limited past criminal history - even though it does include, as a juvenile, an offence of robbery in company and an offence of assault occasioning actual bodily harm in company - that there is a medium risk of re‑offending.

69. His prospect of not re‑offending would be remarkably enhanced were he to cease completely the use of prohibited drugs, and also cease associating with those inclined to criminal offending. There is some evidence of remorse, but it is limited, and in the circumstances where his pleas of guilty were not entered until after the matter had reached trial and he had then been in custody as a result of the commission of the offence from 1 May 2015. Such a lengthy period prior to entering the pleas in not indicative of remorse or contrition.

JAMES BUTTON:

SUBJECTIVE MATTERS

70. Mr Button did not give evidence on sentence. Available to the Court in relation to subjective matters is: the pre‑sentence report of Michelle Branewood, dated 16 November 2016; a psychological report from Danielle Hopkins, dated 15 November 2016; an affidavit from Chloe Button, a sister of the offender, dated 24 February 2017; and the offender's criminal history. At the time of the offending he was 27 years of age, and he is now 29. The subjective matters are drawn from that material.

71. First of all, I note that his sister, Chloe Button, is supportive of him and will no doubt continue to be supportive of him. She notes that the offender's partner is expecting to give birth to a child of hers and the offender's in July 2017. There was a period of time when he was subject to an ICO that she was residing with him and, in effect, behaving himself. She states that, "James hates alcohol due to our dad's drinking when we were young. He wasn't drinking or using drugs when he was living with me." And he was helping her son with his homework and taking her son to and from school on occasions. She has visited him while he has been in custody.

70. He is one of six children born to his biological parents. He has two older sisters and three younger brothers. He was raised in Rydalmere and has spent most of his life in that area. His family resided in a Department of Housing residence in a high crime area. He is said to have developed in an atmosphere of hostility due to his father's domestic violence towards his mother, resulting from his father's consumption of alcohol and intoxication. He has witnessed his father push her and throw stuff at her, which resulted in him having a limited respect for his father.

71. Lacking a male role model, he is said to have sought older male role modelling through his peers, while he had a generally distant relationship with his father. In his childhood, he is said to have had a distant relationship with his mother, she also having a problem with the excessive consumption of alcohol. He apparently moved between various family members as a result of the family situation, residing with an aunt at the age of 18 years who, unfortunately, was herself involved in illicit substance use. He intermittently returned to his parents from time to time, but crime was normalised for him when he was with his aunt in particular because his maternal cousins and uncles were "in and out of jail frequently". His sisters are said to be prosocial individuals. The family had limited but adequate financial stability.

72. He was a low achieving student academically, having some learning issues which led to him being bullied by other students to which he retaliated physically, incurring several suspensions. He ceased his education of his own volition part way through Year 8. As to employment, he has been sporadically employed by his father in maintenance work between the ages of 15 and 17. From 19 until he was 22, he was intermittently employed in cleaning. He has in the past secured two positions in steel installation and steel fixing, at 23 and 24 for a few months on each occasion. Otherwise, he has been unemployed and supported through Centrelink payments since leaving school.

73. He reported to the pre‑sentence officer that he has completed a certificate in Fitness at TAFE, and also that he is a member of an outlaw motorcycle gang. In the psychologist's report, he is referred to as being an affiliate rather than a member. Apparently, he has the numeral one and the percentage symbol tattooed on his hand, having some delusional thought that this represents a power/protection thing. He is said to be undecided about his future with the outlaw motorcycle club, but that it does appear to fulfil some of his needs for esteem and belonging. His partner, who is said to be pregnant with the child, continues to be supportive of him.

74. At around 25 years of age, he is said to have been hospitalised for mental health concerns. In 2015, he indulged in two rounds of steroids, although he denied any accompanying impact on mood or psychological functioning. He claims minimal alcohol use throughout his life and that he smoked cannabis daily at a level of up to 7 grams between the ages of 17 and 25. He used ecstasy weekly at the rate of two pills each session between the ages of 18 and 25, and used intranasal cocaine biweekly between the ages of 18 and 24 and then daily from 24 until he was 25 years of age.

75. He claims to have ceased cannabis, ecstasy and cocaine use after he was hospitalised for acute mental health symptoms, and he denied any relapse into substance use over the past four years, and so did not present with any substance use issues related to the current offending. His explanation for his participation was that his Centrelink payments had been cut off and he was in a position of financial strain, participating in order to improve his finances and particularly to assist him in being able to obtain a driver's license.

76. In terms of intelligence, an assessment indicated that on the verbal scale he was 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; however it was above the cusp that would have warranted investigation for intellectual disability.

77. As to the mental health issues that resulted in treatment or being hospitalised, it appears from the report that they occurred at a time when he was using cocaine daily, and thus may have, in fact, been problems triggered by his abuse of prohibited substances. Apparently he was prescribed Valium at the time, and does not have any ongoing difficulties other than that he continues to experience moderate anxiety at times related to situational factors. He has low self‑esteem as well as literacy issues.

78. He informed the pre‑sentence officer that he has been diagnosed with anxiety, depression and bipolar disorder, but that he was not currently on medication. There is nothing in the psychological report which would indicate that the offender has been diagnosed in the past as being bipolar, rather than, perhaps, what is contained in the report, of hospitalisation because of the adverse effects of the consumption of prohibited drugs.

79. The pre-sentence report states as follows in respect of factors related to offending:

“Violence - given the nature of the offences and his prior conviction, it would appear the offender has the potential to inflict harm towards others. Mr Button appears willing to participate in intervention to address his offending behaviour.”

82. As for his attitude to the offending:

"In relation to the matter before the Court, Mr Button agreed with the facts. The offender claimed he did not have a weapon in his possession, and was not aware that the co‑offenders had weapons. He further claimed that he attended the address as a lookout for his co‑offenders. Mr Button demonstrated insight into his offending, stating he felt sorry for the victim, and that the victim did not deserve what had happened."

83. He was assessed as at a low to medium risk of reoffending. It is, of course, exceedingly difficult in the circumstances of what occurred in relation to the attendance at 4 Adamson Avenue to accept that the offender was not aware of at least others having weapons, if he himself did not in fact have a weapon; or that he was simply attending as a lookout in the circumstances where I have found beyond reasonable doubt that he was at least one of the three who physically assaulted Mr Harrison, including the use of the shotgun and at least a machete.

84. There is no significant or acceptable material contained in what is before the Court that would allow the Court to make a finding that the offender is remorseful for his conduct rather than regretting it and regretting the situation that he now finds himself in, particularly in the circumstances where he did not enter a plea of guilty until the second day after the scheduled trial date.

85. As to the offender's criminal history, in April of 2007, he committed the offence of aggravated break and enter and commit serious indictable offence in company, which is an offence of the same nature as he is now before the Court for. That was dealt with in February 2008 at the Sydney District Court. He received a sentence of imprisonment of two years, which was suspended on entering a s 12 bond with supervision, in particular, for illicit drug use by the New South Wales Probation Service.

86. In April 2015, he committed a further offence of aggravated break and enter and commit serious indictable offence in company. This was dealt with on 16 May 2016 at the Parramatta District Court. Despite his earlier offence, he received the benefit of an Intensive Correction Order of two years, commencing in May 2016 and concluding in May 2018. This was the sentence imposed by Judge Sides that I previously referred to when dealing with the co‑offender and the facts in respect of Mr Menouhos.

87. The offence in respect of 4 Adamson Avenue was committed on 8 February 2015. He then committed the further offence on 8 April 2015, two months afterwards, despite what had occurred at Adamson Avenue, being a further offence of a similar nature. In my view, the subsequent offence in April 2015, when combined with this offence and the earlier offence in 2007, indicates a contemptuous disregard for the criminal law and society's requirements that persons abide by the law.

88. In my view, his past history, despite there being some difficulties in relation to his upbringing, does not warrant the Court considering that his moral culpability has in any way been reduced by that background. Sides SC DCJ found on the basis of the material that was then before him, rather than the material that is now before me that in relation to that offence there was some reduction in moral culpability. I am unable to find so in relation to this offending.

DEAN HORST:

SUBJECTIVE MATTERS

89. Mr Horst did not give evidence at trial nor did he give evidence on sentence. Available to the Court is his criminal history, a pre‑sentence report dated 22 February 2016, a psychological report from Ms D. Santa Brigida dated 12 February 2017. There is also a letter to the court from a Mr Neil Monks, dated 23 February 2017, Mr Monks being the offender's father, and further, a letter from Catherine Towers, dated 22 February 17, she being the offender's de facto for the last four years. The subjective matters are taken from that material.

90. The offender was 30 years of age at the time; he is now 32 years of age. The charges were defended and in the material before the Court, he continues to deny participation beyond an initial agreement and withdrawal prior to any offending conduct. Accordingly, there is no evidence of remorse or contrition. He has been in a de facto relationship for approximately some four years. There is a child of the relationship, aged somewhere between two and a half and three years of age. He continues to be supported by his de facto partner, who regularly visits him with his daughter while he has been in custody.

91. He was born and raised in Sydney. Tragically, however, when he was two years of age, his father was sentenced to a term of life imprisonment for the offence of murder, and although the offender was regularly taken to visit his father in custody, his father was not released until approximately 16 years later. The pre‑sentence report indicates that he had difficulties relating to his father's incarceration, but that his mother did everything she possibly could to provide him with stability during his upbringing. His mother died from ovarian cancer some four years ago, and this is said to have been an especially difficult time for him, he having become, in recent months prior to her death, a full‑time carer.

92. He was educated to Year 10 level. However, his schooling was adversely affected by the fact that his peer group were aware of his father's imprisonment for the offence of murder, and this meant that he became the subject of bullying and harassment which persisted throughout his education. As a result, he was constantly involved in fighting and it was necessary for him to change schools on a number of occasions, but apparently the non‑acceptance and harassment would continue whenever he changed school. He left secondary school in Year 9, enrolling in TAFE, and at TAFE completed his education to the end of Year 10, obtaining a school certificate.

93. After his father was released from imprisonment he began working with his father, being employed in a number of occupations, but initially in door manufacturing and later in several positions prestressing concrete. In a later period of Community Corrections supervision that I will refer to later, in 2008, he relocated to Port Hedland, Western Australia with his father, where he was working. His father has provided a reference to the Court indicating that his son attended TAFE and became a rigger dogman, supporting cranes with heavy lifts; that he was very good at this work and held various positions, including at Port Hedland, Western Australia, on a 28/7 roster; also working in Mackay in northern Queensland as a rigger and dogman, again on a 28/7 roster.

94. His father's reference indicates that when working for New South Wales Prestressing Pty Ltd, his achievements included being responsible for all the bridge panels lining the M7 Expressway; the structures at the entrance and exit of the Lane Cove Tunnel; the emergency escape stairwell and main water sump of the Cross City Motorway; prefabrication assistance with the erection of the William Street Railway Bridge at Chatswood; and the prefabricated panels of the Light Horse Interchange of the M7 and M5 Motorways.

95. His father's reference does not say exactly how he was responsible for those matters, that is, what his actual work designation was, but I accept that he had some major responsibility in relation to those matters. His father indicates that he and the offender's partner will continue to support him when he is released in order to assist his "reintegration into society and to once again become a productive member of society."

96. As to his use of prohibited substances, this is said to have commenced during his mid‑adolescence, with the use of cannabis escalating during the later years of his adolescence. He first tried methamphetamine in his early 20s and his drug use escalated and became more entrenched in recent years, along with the development of a gambling problem. He informed the pre‑sentence officer that his illicit drug use exacerbated his problems with depression and anxiety attacks, and he has previously been treated with an antidepressant. His mother's death caused such distress to him that it is said to have led to a suicide attempt and heightened illicit drug use.

97. As to his attitude to offending, the pre‑sentence report includes the following quote:

98. "Mr Horst said that he was using large amounts of methamphetamine at the time of the offending. He admitted that he was a party to planning the offence, and that he was a member of this criminal group. He denied taking part in the offence, stating that he pulled out prior to the crime being committed."

99. He was assessed as being at a medium risk of reoffending, and having unresolved drug problems and associated mental health difficulties. The psychological report indicates that he first started experimenting with crystal methylamphetamine at 22 years of age, and his use escalating to between 5 and 10 points per day. He both smoked and injected ice. As to his gambling habit, which commenced after the death of his mother, he was spending approximately $1,000 per day on poker machines, which resulted in the necessity to sell a unit he had at Ryde; but that, however, as he continued gambling, he had to steal in order to support his gambling addiction. He is said to currently have had that under control, but otherwise to have been diagnosed with a severe gambling disorder; that the cessation of his gambling problem is said to have been some eight months prior to his arrest for the current offences, as a result of his partner giving him an ultimatum.

100. As to his intelligence, he is assessed on verbal, non‑verbal, and the IQ composite as being below the average range. On testing in relation to adult ADHD, it is said that he has a clear indication of adult ADHD, and to also be suffering from what is referred to as an intermittent explosive disorder and a post‑traumatic stress disorder, particularly as a result of the bullying he suffered during his adolescence.

101. On testing for depression and anxiety, he is said to suffer from severe depression and severe anxiety; however, the report notes that those findings may well be attributable to his current incarceration. It would be a rare prisoner, whether serving a sentence or on remand, who is not affected to a significant degree by depression and anxiety, considering their circumstances. According to the psychologist, he was in the high to moderate range for risk of recidivism.

102. I am unable to find that any of those matters result in any reduction of his moral culpability for the offending, noting, of course, that he was the person on the facts who actually effected entry and threatened the occupants with a machete, including assaulting Mr Hunter, and in the circumstances of Mr Hunter's de facto being some eight months pregnant at the time, or almost eight months pregnant.

103. As to his criminal history, he has a number of offences, both as a juvenile and an adult. In 2001 at Hornsby Children's Court, a number of offences were dismissed with caution, but they included a break and enter with intent to steal; larceny; destroying or damaging property; and receiving or disposing of stolen property. They were dismissed, pursuant to s 33(1)(a) with a caution.

104. As an adult, he went before the District Court at Parramatta on 19 May 2006 in relation to an offence committed in November 2005 of robbery in company. He received a sentence of imprisonment of 24 months, with a non‑parole period of 16 months, the sentence being suspended on entering a s 12 24 month bond with supervision by New South Wales Probation Service, including accepting all reasonable directions regarding rehabilitation and counselling in relation to drugs and alcohol.

105. In 2009, he was before the Ryde Local Court for possessing a prohibited drug, which was dealt with by way of a fine. In 2013, at the Parramatta Local Court, he was again dealt with for an offence involving the possession of a prohibited drug, again dealt with by way of a fine, and five months later at the Woy Woy Local Court, he was further dealt with for possess prohibited drug, again by way of a fine. The most relevant offence is, of course, the robbery in company offence, being his first adult offence, committed in 2005.

106. As I have previously indicated, there is no evidence of remorse or contrition. The matters were defended. As to rehabilitation, it cannot be said that there is no prospect of rehabilitation, although it cannot in the circumstances be said that there is a good prospect of rehabilitation or a low prospect that he will not reoffend.

CHRISTOPHER MENOUHOS

SUBJECTIVE MATTERS

107. In respect of Mr Menouhos, the offender did not give evidence at trial, nor did he give evidence on sentence. At the time of the offences he was 26 years of age and is now 28 years of age.

108. Available in relation to subjective matters are: a pre‑sentence report from Mariah Illiffe, dated 13 February 2017; and a psychological report from Mr Borenstein, dated 5 August 2016, I note having been prepared in relation to a matter in respect of which he was sentenced by Sides SC DCJ in 2016; that is, it was not prepared for the purposes of this matter which limits its utility, although it does still have some relevance. In addition, there is a letter from a Mr John Torr, being a teacher from the Cumberland High School, dated 26 January 2017, and a New South Wales Department of Corrective Services case note report.

109. The letter from Mr Torr indicates that the offender was well known to the author when he was at school, the offender suffering from dysgraphia ‑ that is a learning disability that affects written expression ‑ and also dyslexia. Mr Torr's first contact with the offender was to discuss behavioural issues arising from the fact that the offender's disability clearly frustrated him, leading to confrontation and conflict with teachers. Mr Torr found him to be, over time, a friendly student who related well to people who respected him, courteous and willing to work well. Mr Torr assisted him with his individual difficulties and came to think well of him despite his difficulties at school.

110. The New South Wales Department of Corrective Services case note report indicates that while he has been in custody, he has been attending literacy and numeracy classes, at least at the time of the report, for a period of some three to four months, which appears to have been since they were first offered. He is said to have been enthusiastic and to have attempted and conquered many of his fears of education by being open and trying hard. His writing and reading are said to have improved to the point of answering his frustration by using a pen, as in the case of writing a letter, or an explanation of an incident. He was at the time, being August 2016, attempting to read his first easy reader novel. He is said to be always polite and helpful in class.

107. He was under the supervision of Community Corrections in the past and the records confirm that he had complied with the supervision requirements and also engaged in intervention to address his illicit substance use, as well as securing both employment and accommodation, as a result of which compliance, his supervision was terminated early in November 2012.

108. The psychological report of Mr Borenstein indicates that: he has a criminal history defined by illicit drug use; that he has been on the Disability Support Pension since the age of 18; has occasionally worked with a friend installing optic fibre for the NBN/Optus; that, at least in relation to the time at which he committed the offence the report was prepared in relation to, he had been using drugs, namely ice, heroin and marijuana on a daily basis and at chronic and dangerous levels.

109. He had commenced using marijuana when he was 12. By 14, he was introduced to ecstasy. In 2005, he added ice to his daily drug intake. Although marijuana was his preferred drug, he had an escalating drug use particularly of ice and heroin, following a past fallout with a cousin in relation to an agreement to purchase a Jim's Mowing franchise. This would appear to be when he started smoking heroin, and in about 2013. He has in the past been depressed and had a significant debt to a drug dealer. His habit at the time of the offence the report was prepared in relation to was estimated to at $500 per day. He was, however, unfortunately disinclined to enter a methadone program because he said he did not want to substitute one drug for another. He is said to have been a binge drinker of alcohol from Year 10 at high school and over the following four years.

110. The psychological report notes that he was identified as having a significant learning disability and speech impediment in his childhood, as well as ADHD and ADD. Apparently, apart from the reading and spelling courses he has undertaken while in custody, he has also taken some courses in English and computer skills. He is said to have suffered from epilepsy and to have had several seizures while in prison, which are unknown to the authorities because he is disinclined to inform them. However, I note his mother has confirmed that she has herself personally witnessed in the past an epileptic episode, the last being in 2015.

111. He was born in Sydney. He has three younger brothers. He describes his father as a junkie who stole from the family. His parents had a volatile and dysfunctional marriage, with frequent separations and eventual separation and divorce. He attended Toongabbie Primary School up to Year 1, and Oatlands Primary School from Year 2 to Year 6, as well as attending Cumberland High School, where he completed Year 12. He has had assistance with reading, spelling, and writing throughout his primary and high school years. He achieved a Certificate of Achievement in relation to the Higher School Certificate.

112. He is said to have used drugs throughout high school, at times smoking marijuana with his father. He was put on a Disability Support Pension almost immediately after leaving school, and he has failed in his attempts to gain gainful employment. He has had only one past relationship which spanned a period of approximately eight years and came to an end, as I interpolate, towards the end of 2014 or early 2015.

113. There is, however, no suggestion of any serious psychiatric disorder. His thoughts for content and process are normal. There is also no evidence of any perceptual disorder, such as delusions, hallucinations or ideas of reference or feelings of passivity. He has had some difficulties in the past with suicidal ideation and anger management issues, as well as symptoms of depression and anxiety. He received some counselling at the Parramatta Community Health Centre from the age of five, and later received some assistance through a Salvation Army program at Parramatta.

114. He was admitted at Ryde Hospital in 2010 due to seizures and at that time was diagnosed with epilepsy. He had several orbital operations at Westmead Children's Hospital in 2003 for an orbital infection, from which it is believed that he later developed the epilepsy.

115. His previous relationship that I referred to ended as a result of his chronic drug use. I accept that he had a dysfunctional family environment marred by domestic violence and the use of illicit substances, particularly by his father. He has apparently had, while in custody, minimal parental support as a result of both of his parents being banned from institutional visits following warnings for bringing contraband into different institutions. He has no current contact with his ex‑partner.

116. At school, he was suspended on multiple occasions due to fighting. He claims that at the time of this offending, he was under the influence of methamphetamines and had minimal recollection of his offending behaviour. He has previously completed a community‑based drug program, being MERIT, in 2010, and managed to be abstinent from the use of prohibited drugs for 10 out of 12 weeks. Although he had at the time expressed interest in entering a long‑term rehabilitation facility and treatment program, he has not done so, and his interest is said to be "somewhat contradicted by his continued illicit substance use whilst in custody."

117. The pre‑sentence report indicates under the heading, “Violence”:

"Mr Menouhos's index offences demonstrate a high level of violence and aggression. He is unable to understand the severity of his actions and impact on the victim and witnesses. Mr Menouhos attributed his lack of understanding previously and during the writing of this report to his illicit substance abuse at the time of the index offences. Mr Menouhos's criminal history confirms a prior conviction of possess or use of prohibited weapon without permit in 2011. This suggested a continued pattern of behaviour regarding the use of a weapon to potentially inflict harm."

122. Under “Attitude to Offending”, it is stated:

"Mr Menouhos acknowledged the seriousness of the index offences, however, disagreed with the police facts. He was unable to recall a full account of the offences due to being under the influence of methamphetamines at the time. Mr Menouhos failed to acknowledge the impact on the victim and witnesses. He was unable to explain his involvement, stating the victim was a known associate. Mr Menouhos has continued to display pro‑criminal and antisocial behaviour whilst in custody.

123. This is evident in the 20 recorded misconducts for failed drug tests, disobeyed direction, destroyed property and possessed tobacco. Whilst he had identified a willingness to address his illicit substance use and comply with supervision requirements, this is contrary to his poor custodial behaviour and inability to comply with the institutional regime. He is assessed as a medium risk of reoffending.

124. Under “Assessment”, he is said to have no insight into the severity of his offending behaviour."

125. I will not repeat what I have previously said in relation to the observations of the various persons from CCTV footage apparently being able to enter and exit the Sturt Street premises, appearing ‑ although again repeating it is difficult to assess it from CCTV footage to which there is no audio ‑ but appearing to be unaffected at any time by any substance. I will not repeat what I said previously about the degree to which or the extent to which persons awaiting sentence appear to believe that by asserting that they were affected by drugs and cannot remember what happened, that they somehow diminish their moral culpability for the offending.

126. Mr Menouhos, at the time of committing this offence, was the subject of bail for the offence committed on 11 March 2014. There is a long line of authority that this is a serious aggravating factor, as expressed in R v Richards (1981) 2 NSWLR 464 by Street CJ at 465. The protection of the community from those who abuse their liberty on bail to commit further offences calls for "severely deterrent sentences", which ordinarily involves a significant accumulation of the sentence for any subsequent offences on top of the sentence to be passed or passed for the original offence.

127. In relation to Mr Menouhos, there is no evidence of remorse or contrition, nor does he appear even after trial to acknowledge the seriousness of the offences committed. It cannot be said that there is no prospect of rehabilitation but it appears to be very limited in those circumstances.

128. In the instinctive synthesis of determining appropriate sentences, I have of course taken into account all of the material that is before me. I have previously indicated the extent to which any particular offender will receive a discount in respect of any particular offence and I do not intend to repeat that. I have also referred to my view as to the objective seriousness of the individual offences as well as the objective seriousness of the offences within the context of the total offending.

129. For the purposes of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and take account of such of the aggravating or mitigating factors as are referred to in s 21A(2) and sub (3). The sentence must reflect the objective seriousness of the offence as well as the need to provide both specific and general deterrence. I am of the view that in relation to each of the offenders, considering the nature of the offending conduct, both specific and general deterrence are important factors to take into account. Any sentence must of course also meet the fundamental purpose of punishment, that is, the protection of society.

130. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act in relation to each of the offenders that there is no penalty other than imprisonment that is appropriate. Indeed, no submission has been made on behalf of any offender that there is any appropriate alternative to a period of full‑time imprisonment. I intend to proceed by way of, in each case, an aggregate sentence. Accordingly, I am required to specify the indicative sentence in respect of each offence, and in respect of those offences where there is a standard non‑parole period, both the indicative non‑parole period and the total term of sentence. I note that in determining sentence I have had regard both to the maximum sentence as provided for any individual offence as well as, where one has been provided, the standard non‑parole period as a guideline rather than a tram track.

131. First of all, I will indicate the indicative sentences in relation to each of the four offenders. In respect of Mr Bezjak, in respect of the offence contrary to s 112(2) of aggravated break, enter and steal in its short form, the indicative sentence is a non‑parole period of four years with a full term of five years and four months; that is, the balance of term is one year and four months. In respect of the offence contrary to s 35(3)/s 350, being reckless wounding in company in respect of Mr Harrison after the fact, involving the use of a machete, the indicative term there, being no standard non‑parole period is 18 months. Similarly, in respect of the further offence contrary to that section and of the same nature but involving the use of a shotgun after the fact, the indicative sentence is 18 months.

132. In respect of Mr Button, the indicative sentence in respect of the offence contrary to s 112(2) in its short form description, aggravated break, enter and steal, the indicative non‑parole period is four years and three months, with a total term of five years and eight months, indicating a balance of term of 17 months.

133. In relation to each of the two offences contrary to s 35(3) of reckless wounding in company involving the machete, and the other offence involving the shotgun, the indicative sentence is of a similar term, that is, a non‑parole period of three years in each case, and a full‑term sentence of four years. That is, a non‑parole period of three years and a balance of term of one year.

134. In relation to Mr Horst, in respect of the s 112(2) aggravated break, enter and steal, the indicative non‑parole period is four years and six months, and the full‑term indicative sentence is six years. That is, the balance of term is 18 months.

135. In respect of the offence contrary to s 33(1)(a) of wound with intent to cause grievous bodily harm, relating to the use of the machete, the indicative non‑parole period is six years and the full term is eight years, indicating a balance of term of two years.

136. In relation to the further offence contrary to s 35(3), of reckless wounding in company involving the use of a shotgun, the indicative non‑parole period is three years and the full term is four years, indicating a balance of one year.

137. In relation to Mr Menouhos, the indicative sentences are, in respect of the s 112(2) aggravated break, enter and steal, a non‑parole period of four years, six months and a total term of six years, indicating a balance of term of one year and six months.

138. In respect of the offence contrary to s 33(1)(a) of wound with intent to cause grievous bodily harm involving the machete, the indicative non‑parole period is six years and the total term is eight years. That is, the balance of the sentence is two years.

139. For the offence contrary to s 35(3) of reckless wounding in company involving the shotgun, the indicative non‑parole period is three years and the total term is four years, meaning a balance of term of one year.

140. In respect of the offences involving the premises in Hampden Road of Mr Chay, the indicative sentence in respect of the s 112(2) aggravated break, enter and steal, also taking into account when sentencing for that offence the offence contained on the Form 1 contrary to s 547D of carry a cutting implement, the indicative sentence is a sentence of two years and six months.

141. I will now return to the aggregate sentence in relation to each of the offenders. I have taken into account the principles contained in Pearce v The Queen (1998) 194 CLR 610 , and that the sentences imposed in each case should appropriately reflect the overall conduct.

142. Mr Bezjak, would you please stand. You are sentenced to a term of imprisonment with a non‑parole period of five years and a balance of term of two years. The sentence will commence from the date of your arrest, being 29 April 2015. The non‑parole period will expire on or about 28 April 2020, and the balance of term expires on 28 April 2022. You will be first eligible for parole on or about 28 April 2020. Whether you are released on that date or not will be a matter for the authorities and will depend largely upon how you have behaved while in custody. There are a number of courses that you might find within the prison system to assist you with your various problems.

143. Mr Button, would you please stand. You are sentenced to a term of imprisonment with a non‑parole period of five years and six months. The total term of imprisonment is eight years, that is, a balance of term of two years and six months. You were refused bail by me on 11 October 2016 when you entered your pleas, and you had previously spent a period in custody between 29 April 2015 and 31 July 2015 in relation to these matters. That is a period of 94 days.

144. Taking into account the 94 days and that you have been in prison since 11 October 2016 solely in relation to these matters, your sentence will have commenced from 9 July 2016. You will be first eligible for parole five years and six months later, being 8 January 2022. When released, you will be subject to parole for a period of two years, six months, the total term expiring on 8 July 2024.

145. I trust that you understand that, similarly to Mr Bezjak, your release on 8 January 2022 will largely depend on your own conduct while in custody. It is a matter for you. You should take the opportunity of whatever courses and assistance you can achieve while in custody to improve your situation for when you will leave.

146. Mr Dean Horst, would you please stand. You are sentenced to a term of imprisonment with a non‑parole period of seven years and a balance of term of three years. That is, a total sentence of ten years. I will backdate the sentence from the time that you went into custody on 28 October 2016, also allowing for the 39 days in custody from when you were arrested on 28 April 2015 to 5 June 2015. Accordingly, that means that your sentence commences on 19 September 2016. You will be first eligible for parole seven years later on 18 September 2023, and the balance of term of three years will expire on 18 September 2026.

147. Again, as you would understand, your release on or about 18 September 2023 will be subject to your conduct while in custody, and of course, you, just as the other offenders, will be aware that any breach of parole is likely to see you serving the balance of any parole period.

148. Mr Menouhos, you are sentenced to a term of imprisonment with a non‑parole period of seven years and six months, with a total term of ten years and six months. The non‑parole period is seven years and six months, and the balance of term is three years.

149. You were charged while in custody in relation to another matter, in respect of which you had received a nine month non‑parole period. I have taken that into account and I propose to backdate your sentence to be concurrent as to the last three months of that nine month non‑parole period. The matter that I refer to is the matter you were sentenced for at Parramatta District Court on 4 October last year.

150. Accordingly, your sentence commences on 8 October 2015, with the non‑parole period in respect to that other matter expiring in January 16. The non‑parole period is seven years, six months, commencing on 8 October 2015. It expires on 7 April 2023. The balance of term of three years will expire on 7 April 2026.

151. It will be noted in respect of the aggregate sentences that I have not, in effect, found special circumstances. However, when imposing the aggregate sentences, I have reduced the non‑parole period from the statutory relationship 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.

152. In relation to Mr Menouhos and Mr Horst, I have reduced the non‑parole period to ensure that each of them has the benefit of three years of parole, which is the maximum period of supervision provided by the regulations. However, I have also made some reduction in relation to Mr Button for the same reason, to allow for a greater period of supervision than would otherwise be the case.

153. In relation to Mr Menouhos, I have also taken into account the fact that he was already serving a sentence, although I have made the non‑parole period in relation to this matter concurrent as to the last three months, the variation in the non‑parole period takes account of the fact that, in effect, if one counts the period to be served from the existing sentence, meaning that his total non‑parole period is, in effect, eight years and the total sentence one of 11 years from the commencement of that non‑parole period as also justifying a reduction in the statutory relationship of the non‑parole period to the balance of term. Although, I have taken it even further than re‑establishing a 75% to 25% relationship.

154. It is probable that I have forgotten something in this complex process. Are there any matters that I have referred to wrongly or significant matters that I have omitted that counsel would like to remind me of?

EVANS: No, your Honour. Thank you.

HIS HONOUR: I won't ask you if the calculations are correct, I believe they are. If they are not, you can tell me later and, if necessary, they can be adjusted.

Decision last updated: 01 March 2018