Berry v the Queen - [2013] VSCA 349

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0098

BRADLEY BERRY
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WHELAN, PRIEST AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 November 2013
DATE OF JUDGMENT	19 November 2013
DATE OF REASONS	5 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 349
JUDGMENT APPEALED FROM	DPP v Berry (Unreported, County Court Of Victoria, Judge Pullen, 10 May 2013)

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CRIMINAL LAW – Appeal – Sentence – Theft, attempted theft, obtaining property by deception, attempted armed robbery, handling stolen goods, aggravated assault, dealing with property suspected of being proceeds of crime – 58 offences – Term of imprisonment of 4 years 3 months and 25 days – Non-parole period of 2 years 6 months fixed – Whether sentence offended the principle of totality - Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For The Applicant	Mr D D Gurvich	Turnbull Lawyers
For The Crown	Ms D I Piekusis	Mr C Hyland, Solicitor For Public Prosecutions

WHELAN JA:

I agree with Coghlan JA.

PRIEST JA:

I also agree with Coghlan JA.

COGHLAN JA:

After a plea hearing on 1 and 2 May 2013, the applicant was sentenced in the County Court at Melbourne on 10 May 2013 as set out below.

Charge on

Indictment

Offence

Maximum

Sentence

Cumulation

1-4, 6-17, 31-34, 37-39, 42-43 Theft [s 74(1) Crimes Act1958] 10 years [s 74(1) Crimes Act 1958] 3 months on each charge 20 days on each charge

5.
Attempted Theft [ss 74(1) and 321M Crimes Act 1958] 5 years [ss 74(1) and 321P Crimes Act 1958] 2 months 10 days

18-30, 35, 36, 40-41
Obtaining Property by Deception [s 81(1) CrimesAct 1958] 10 years [s 81(1) Crimes Act 1958] 2 months on each charge 10 days on each charge

45
Attempted Armed Robbery z[ss 75A(1) and 321M CrimesAct 1958] 20 years [ss 75A(2) and 321P Crimes Act1958] 18 months Base Sentence

44 and 46
Attempted Armed Robbery [ss 75A(1) and 321M CrimesAct 1958] 20 years [ss 75A(2) and 321P Crimes Act 1958] 15 months 4 months on each charge

47-53
Handling Stolen Goods [s 88(1) Crimes Act 1958] 15 years [s 88(2) Crimes Act 1958] 2 months on each charge 10 days on each charge

Summary charges 4, 6, 8 and 10
Aggravated Assault (Assault with weapon) [s 24(2) Summary Offences Act 1966] 2 years [s 24(2) Summary Offences Act1966] 1 month on each charge 7 days on each charge

Charge on

Indictment

Offence

Maximum

Sentence

Cumulation

Summary charge 59 Dealing with Property Suspected of being Proceeds of Crime [s 195 Crimes Act 1958] 2 years [s 195 Crimes Act 1958] 1 month 7 days

Total Effective Sentence: 4 years 3 months and 25 days

Non-Parole Period: 2 years and 6 months

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 287 days

6AAA Statement: The learned sentencing…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Berry v the Queen

Details

AGLC: Berry v The Queen [2013] VSCA 349
Case: [2013] VSCA 349
Decision Date: 19 November 2013

CaseChat Overview and Summary

The appellant, Berry, brought an appeal against the sentence imposed by the trial court for a multitude of criminal offences, including theft, attempted theft, obtaining property by deception, attempted armed robbery, handling stolen goods, aggravated assault, and dealing with property suspected of being proceeds of crime. The trial court sentenced Berry to a term of imprisonment of 4 years 3 months and 25 days, with a non-parole period of 2 years 6 months. The High Court was tasked with determining whether the sentence imposed by the trial court offended the principle of totality.

The central issue before the court was whether the sentence imposed by the trial court breached the principle of totality, which requires that the overall punishment should be proportionate to the total criminality of the offender. The appellant argued that the cumulative sentence was excessive and did not adequately reflect the principle of totality. The court was required to consider whether the trial court had adequately balanced the various factors in determining the sentence, including the nature and circumstances of the offences, the appellant's criminal history, and the need for deterrence and denunciation.

The court found that the trial judge had given due consideration to the principle of totality in imposing the sentence. The trial judge had carefully weighed the severity and frequency of the offences, the appellant's criminal history, and the need for the sentence to serve as a deterrent and denunciation. The court held that the sentence imposed was not manifestly excessive and did not offend the principle of totality. Consequently, the appeal was dismissed, and leave to appeal was refused. The sentence imposed by the trial court stood as the appropriate punishment for the appellant's extensive criminal conduct.

Orders