By Paul Gregoire and Ugur Nedim
Just after midnight on 8 February 2015, Daniel Bezjak pulled up at the front of a house in Dundas Valley in his white Mitsubishi Lancer. James Button, Christopher Menouhos, Dean Horst and an unidentified man got out of the vehicle and made their way towards the property.
Brad Harrison was sitting in his car in the driveway talking on his mobile phone, when he noticed Mr Horst approach the front door of the house. He then heard a tapping on the car window and turned to see the other three offenders, one of whom was carrying a shotgun.
Harrison got out of his car and attempted to grab the weapon. A scuffle ensued, and the shotgun was fired twice, injuring Mr Harrison. During the altercation, one of the assailants struck the victim with a machete.
As the conflict broke out, Mr Horst entered the house brandishing a machete. He then demanded that Mr Aaron Hunter, one of the occupants, hand over his “shit”. After a brief wrestle, Horst made off with a bum-bag containing $700 and a silver necklace Hunter had been wearing.
All five men then fled the scene in Bezjak’s car. A subsequent police investigation traced the crime back to a third party, who Mr Hunter had previously had an issue with.
All of the offenders were arrested within two months after the incident.
The matter proceeded to a trial in NSW District Court where Mr Button, Mr Bezjaka, Mr Menouhos and Mr Horst were co-accused.
Button and Bezjak entered guilty pleas on the second day of the trial. Judge Michael King said he’d only give them a 5 percent discount on sentencing due to the lateness of their pleas.
Button plead guilty to three charges. The first was one count of aggravated break, enter and commit a serious indictable offence contrary to section 112(2) of the Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment and there’s a standard non-parole period (SNPP) of 5 years.
An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.
The offender was also convicted of two counts of reckless wounding in company contrary section 35(3) of the Crimes Act. One count related to the machete and the other to the shotgun. A person can be sent away for up to 10 years for this crime and it comes with an SNPP of 4 years.
Judge King didn’t buy Button’s claim that he was simply a lookout. His Honour further decided that the offender’s disadvantaged background did not reduce his moral culpability. The judge imposed an aggregate sentence of 8 years gaol time, with a non-parole period of 5 years and 6 months.
The getaway driver
Mr Bezjak plead guilty to one count of aggravated break, enter and commit a serious indictable offence in company.
He also plead guilty to two counts of being an accessory after the fact to reckless wounding in company contrary to sections 35(3) and 350 of the Crimes Act. This offence can result in up to 5 years imprisonment.
Judge King noted that Mr Bezjak’s role in the planned criminal enterprise was limited to driving the other four offenders and being an accessory after the fact. His moral culpability was therefore assessed to be lower than the others involved in the incident.
However, his Honour noted that Bezjak helped the four other offenders evade justice for two months. And, despite Bezjak’s claim that he was unaware the others were carrying weapons, it was obvious he was aware of the presence of the shotgun after it went off.
His Honour sentenced Mr Bezjak to 7 years imprisonment, with a non-parole period of 5 years.
Overlooking the discount
Both Button and Bezjak appealed their sentences to the NSW Court of Criminal Appeal (NSWCCA) on 18 April this year. Mr Button appealed on several grounds, one of which was that the sentencing judge failed to apply his guilty plea discount to his reckless wounding offences.
NSWCCA Justice David Davies explained that Mr Menouhos, Mr Horst and Mr Button were all convicted of reckless wounding in relation to the shotgun. For this offence, all three were sentenced to 4 years imprisonment, with a non-parole period of 3 years.
But as his Honour pointed out, Mr Menouhos and Mr Horst didn’t plead guilty to this charge and were therefore ineligible for a 5 percent discount on their sentences. And as all three offenders received the same sentence, it was obvious the discount wasn’t reflected in Button’s sentence.
Justice Davies further reasoned that as the sentencing judge failed to consider the discount in regard to one charge, it was more than likely the case with the other. This error meant Button had to be resentenced, so there was no reason to consider his other grounds of appeal.
The principle of parity
Mr Bezjak appealed his sentence on four grounds. The appeals court considered two of these grounds together. The first was that the sentence was manifestly excessive. The second was that the sentencing judge failed to apply parity in sentencing.
The principle of parity requires that like cases be treated alike, and different cases be treated differently. The principle should avoid substantial disparity in the sentences of co-offenders involved in the same criminal activity where they have similar subjective factors, regardless of the charges laid against them.
Justice Davies found problems with Bezjak’s sentence in relation to parity. He also determined that his sentence was excessive. This was apparent when considering both Bezjak’s and Button’s levels of involvement in the incident, and cross-referencing this to the sentences they received.
Mr Button’s indicative sentences totalled 13 years and 8 months, which resulted in an 8 year aggregate sentence. However, the total of Mr Bezjak’s indicative sentences was 8 years and 4 months, which lead him to receive an aggregate sentence of 7 years gaol time.
His Honour found Mr Bezjak’s sentence was indeed manifestly excessive. And since this required resentencing, there was no need to consider his extra grounds of appeal.
The NSWCCA granted the appeals of both Mr Button and Mr Bezjak, and quashed the sentences imposed upon them by Judge King.
On 17 August this year, the appeals court ordered that Mr Button be sentenced to 7 years and 6 months prison time, with a non-parole period of 5 years. While Mr Bezjak was given a sentence of 6 years behind bars, with a non-parole period of 4 years.
NSWCCA Justices Clifton Hoeben and Elizabeth Fullerton agreed with these orders.