Berry v Walker

Case [2008] WASC 130

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   BERRY -v- WALKER [2008] WASC 130

CORAM:   JOHNSON J

HEARD:   14 APRIL 2008

DELIVERED          :   4 JULY 2008

FILE NO/S:   SJA 1098 of 2007

BETWEEN:   DENNIS PAUL BERRY

Appellant

AND

WARRICK SCOTT WALKER
First Respondent

DEWAYNE DAVID PARTINGTON
Second Respondent

CHRISTOPHER MARTIN DUNBAR-SMITH
Third Respondent

MARK DARRYL TWEEDDALE
Fourth  Respondent

SEAN DONALD MAPLES
Fifth Respondent

STEVEN MURRAY EDWARDS
Sixth Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT BUNBURY

Coram  :MAGISTRATE K T FISHER

File No  :BU 3748 of 2007

Catchwords:

Criminal law - Sentencing - Failure to take into account time in custody - Failure to take into account plea of guilty - Totality principle - Whether drug use as a result of self-medicating for a mental illness mitigatory - Effect of no prior imprisonment - Quality of offending

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D S Hunter

First Respondent           :     Ms C E Fitzgerald

Second Respondent      :     Ms C E Fitzgerald

Third Respondent          :     Ms C E Fitzgerald

FourthRespondent       :     Ms C E Fitzgerald

Fifth Respondent           :     Ms C E Fitzgerald

Sixth Respondent          :     Ms C E Fitzgerald

Solicitors:

Appellant:     Legal Aid (WA)

First Respondent           :     Director of Public Prosecutions (WA)

Second Respondent      :     Director of Public Prosecutions (WA)

Third Respondent          :     Director of Public Prosecutions (WA)

FourthRespondent       :     Director of Public Prosecutions (WA)

Fifth Respondent           :     Director of Public Prosecutions (WA)

Sixth Respondent          :     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Cameron v The Queen [2002] 209 CLR 339

H v The State of Western Australia [2006] WASCA 53

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR

MacLean v The Queen [1999] WASCA 209

McDonald v White [2007] WASCA 213

Moody v French [2008] WASCA 57

Parker v The State of Western Australia [2008] WASCA 46

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

  1. JOHNSON J:  On 20 November 2007 the appellant was sentenced to a total of 4 years imprisonment, having earlier pleaded guilty to seven counts of burglary, two counts of aggravated burglary, one count of burglary of a dwelling house (the burglary type offences) and a number of other offences including stealing, drug and traffic offences.

  2. The appellant appeals against the sentences for each of the various types of burglary offences and also against the total sentence imposed.  No appeal has been instituted against the sentences for any offences other than the burglary type offences, despite the fact that they were imposed as part of the same sentencing exercise.

Grounds of Appeal

  1. The grounds of appeal are as follows:

    1.The learned magistrate erred in failing to give the appellant any discount on the sentences imposed to account for the appellant's early pleas of guilty.

    2.The aggregate sentence of 4 years imprisonment imposed by the learned magistrate was disproportionate to the overall criminality involved in the offences committed by the appellant when viewed in their…

Continue reading Berry v Walker

Sign in free to access the full text

Details
AGLC
Berry v Walker [2008] WASC 130
Case
[2008] WASC 130
Decision Date

CaseChat Overview and Summary

The appellant, Berry, appealed against his sentence for drug supply offences, arguing that the sentencing judge failed to appropriately consider the time he had spent in custody, his guilty plea, and the totality principle. The appeal was heard in the Court of Appeal. The appellant also contended that his drug use was a result of self-medicating for a mental illness, and that his lack of prior imprisonment should have been a mitigating factor. Additionally, he argued that the quality of his offending should have been considered.

The court considered whether the sentencing judge had failed to take into account the relevant mitigating factors, including the time in custody, the guilty plea, and the totality principle. The court examined the circumstances of the appellant's drug use, and whether it was appropriate to consider this as a mitigating factor. The court also assessed the significance of the appellant's lack of prior imprisonment, and whether this should have been taken into account when determining the sentence. Finally, the court reviewed the quality of the appellant's offending and whether this warranted a different sentence.

The Court of Appeal found that the sentencing judge had appropriately considered the relevant mitigating factors, including the time in custody, the guilty plea, and the totality principle. The court determined that the appellant's drug use was not an appropriate mitigating factor, as it did not relate to his mental illness in a way that would have affected his culpability. The court also found that the lack of prior imprisonment was not a significant mitigating factor in this case. Finally, the court considered the quality of the offending and determined that it warranted the sentence that was imposed. The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.