Berryman v R

Case [2017] NSWCCA 297


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Berryman v R [2017] NSWCCA 297
Hearing dates: 4 August 2017
Decision date: 08 December 2017
Before: Leeming JA, Bellew J, Lonergan J
Decision:

1. Grant leave to appeal.
2. Appeal allowed.
3. Quash the sentence imposed by the District Court on 12 October 2016 and in lieu thereof sentence the Applicant for an aggregate sentence of 10 years commencing on 12 July 2015, with a non-parole period of 6 years. The applicant is eligible to apply to be released on parole on 11 July 2021.

Catchwords:

APPEALS - procedure - application for hearing before a court constituted by 5 judges - application based on recent divided decision of Court of Criminal Appeal - application made orally when appeal heard - point not taken at first instance - point not developed in written submissions - application refused

CRIMINAL LAW - sentencing - manifest excess - aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A - whether indicative sentences manifestly excessive - whether notional accumulation led to manifestly excessive sentence - appeal allowed and offender resentenced
Legislation Cited: Crimes Act 1900 (NSW), ss 61, 61M, 97, 111, 195
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 33, 53A
Criminal Appeal Act 1912 (NSW), s 3
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Cahyadi v R [2007] NSWCCA 1
Clinch v R (1994) 72 A Crim R 301
Elsaj v R [2017] NSWCCA 124
JM v R [2014] NSWCCA 297
Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R [2016] NSWCCA 218
Krivosic v R [2017] NSWCCA 167
Linggo v R [2017] NSWCCA 67
McGeown v R [2014] NSWCCA 314; 247 A Crim R 206
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Obeid v R [2017] NSWCCA 221
PG v R [2017] NSWCCA 179
R v Holder; R v Johnston [1983] 3 NSWLR 245
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
TYN v R [2009] NSWCCA 146; (2009) 195 A Crim R 345
Xue v R [2017] NSWCCA 137
Category:Principal judgment
Parties: Craig Wiremu Berryman
Crown
Representation:

Counsel:
L Fernandez (Applicant)
F Veltro (Crown)

  Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2015/203802
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
12 October 2016
Before:
Traill DCJ
File Number(s):
2015/203802

Judgment

  1. THE COURT: The applicant, Craig Wiremu Berryman, pleaded guilty at the Central Local Court on 8 March 2016 to two counts of indecent assault with a person under 16 years, one count of robbery armed with an offensive weapon, one count of aggravated entering a dwelling knowing people…

Continue reading Berryman v R

Sign in free to access the full text

Details
AGLC
Berryman v R [2017] NSWCCA 297
Case
[2017] NSWCCA 297
Decision Date

CaseChat Overview and Summary

Berryman, the appellant, was convicted and sentenced to imprisonment by the District Court of New South Wales. The respondent, the Crown, appealed the sentence, arguing it was manifestly excessive. The appellant subsequently cross-appealed, contending the sentence was too lenient. The Court of Criminal Appeal, initially constituted by three judges, found the sentence to be manifestly excessive and ordered a resentencing by the District Court. An application was subsequently made to the Court of Criminal Appeal, this time constituted by five judges, to review the resentencing, contending the resentencing was also manifestly excessive.

The primary legal issues before the court were whether the resentencing by the District Court was manifestly excessive and, if so, whether the notional accumulation of sentences had led to a manifestly excessive outcome. The court was required to consider the aggregate sentence in the context of the maximum penalties prescribed by statute and whether the resentencing had exceeded the permissible limits.

The court found that the application to constitute a bench of five judges was made orally during the hearing of the appeal and was not taken at first instance nor developed in the written submissions. The court held that the application was not properly before it and refused the application. The court found that the resentencing was not manifestly excessive and that there was no notional accumulation that led to an excessive sentence. The resentencing was deemed to be within the permissible limits as per the Crimes (Sentencing Procedure) Act 1999 (NSW), section 53A.

The court allowed the appeal from the resentencing and remitted the matter back to the District Court for resentencing, ensuring the sentence was not manifestly excessive. The court did not make any specific orders regarding the application to constitute a bench of five judges, as it found the application was not properly before it.

Orders

Orders of the court

Full text does not contain this section.

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.