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
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
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…
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.
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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.