Director of Public Prosecutions v Berry

[2018] VCC 1607

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01200

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRANT BERRY

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2018
DATE OF SENTENCE:	2 October 2018
CASE MAY BE CITED AS:	DPP v Berry
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Pleas of guilty – attempted armed robbery (2 charges)
Legislation Cited:	Criminal Procedure Act 2009 (Vic); Sentencing Act 1999 (Vic)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571
Sentence:	Convicted and sentenced to 4 years’ imprisonment with a minimum term to be served before being eligible for parole of 20 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson	Office of Public Prosecutions
For the Accused	Ms K. Ballard	Doogue & George

HIS HONOUR:

1Mr Berry, you can remain seated.  There are a number of things I have got to go through given the materials that are before me and the plea put forward by your counsel, Ms Ballard. In particular the written material of which I have had the benefit of being able to read in preparation for your plea. 

2Coming firstly to the indictment, Mr Berry comes before this Court now aged 30, having committed at the age of 29 two indictable offences of attempt armed robbery. They are respectively Charges 1 and 2 and were committed on 1 August 2017, in circumstances where a meat cleaver was used and the attempts were made, firstly insofar as the property of one Nathan Berecz, specifically a mobile phone, that attempt was made at the Sunshine railway station.  Immediately thereafter a further attempt at armed robbery was made upon his companion, Mr Samstrum, seeking again, a mobile phone, which it turns out the victim did not possess, and then for money.  Although the only matter that is put as part of the indictment is the issue of the mobile phone.

3As I say, Mr Henderson appeared on behalf of the Director and Ms Ballard appeared on behalf of Mr Berry. Exhibit A tendered is the prosecution summary, which is accepted by Ms Ballard as being the facts upon which I am to sentence her client.  In addition, at Ms Ballard's request, the CCTV footage was played.  The offence is aggravated by the circumstances of its commission.  To commit such an offence, albeit, an attempt, is still a very serious offence as is evidenced by the intent of Parliament, that the maximum penalty imposed for such an offence is one of 20 years.

4In addition, pursuant to section 145 of the Criminal Procedure Act, I have been asked to take into account two summary offences, which I will come to in due course.  However, coming back to the offences, to commit these offences at a public railway station is, as I have already described in this plea, absolutely outrageous.  To commit them in daytime when two young men, in this particular instance, aged 18 and 16, were making their way on the public railway system is, again, a matter of aggravation.

5At no stage was there any suggestion that immediate gaol is not appropriate, and, that was accepted by Ms Ballard on the basis of the need for a sentence which reflects not only specific deterrence and general deterrence, but denunciation and punishment in regard to these crimes. 

6In the matters put to the Court, the prosecutor put that it was the view of the Director that within the range of sentences appropriate, was a combined s.41 sentence, by way of immediate gaol and a community correction order.

7That indeed was the sentence sought by Ms Ballard upon the totality of the circumstances put to me, which I will recount in due course.  That is a view which I reject.  This offence by its very nature, given the maximum sentence imposed by Parliament is such that in my view, to consider any sentence which imposed an immediate period of gaol of only one year would be totally inappropriate.  In my view, it is not within the range of an appropriate sentence in this matter.  That comes about of course by way of a total consideration of all the factors, one of the factors here being the unfortunate bad criminal background of Mr Berry.

8True it is that Mr Berry has limited offence by way of assaults; however, from the age of 19, but for a commendable gap, he has had considerable offending for which it can be remarked by this Court, he has been given every opportunity possible.  As was pointed out by his counsel, for a period of five years up to 2014, he managed to get his life together.  He is a person with intelligence, a good work record, good qualifications and during that five year period was apparently faithfully working for the railways, although he had not fully freed himself from the curse of drugs to which he has been subject to for many, many years.

9However, from, it would appear 2014 on, he has been very much living the milieu of the drug offender.  One of the very concerning factors about his priors is that he has regularly been found with prohibited weapons, either riffles or some other prohibitedtre://ftr/?label="CC 3-4"?datetime="20181002120955"?Data="85668fd6" weapon.  Of course, since these offences, he has continued to offend and been convicted, and finally found himself gaoled  where he is currently serving a sentence which was imposed in February of this year, after an appeal he was given a 12-month sentence with a minimum of six months to serve, which will be finalised on the second day of January 2019.

10One impact of that sentence, has been that he has not been able to enter bail during that period.  The sentence imposed in February envisaged a situation where he would have been eligible for bail on 14 August of this year.  To the extent that that has deprived him from approximately two months eligibility for parole, I will take that into account in the sentence I impose.

11Insofar as the submission of the learned prosecutor, while indicating that a combined order was within range, there was no issue that, as far as the prosecution was concerned, this was a serious matter, where not only is it aggravated by the circumstances, but aggravated by the fact that it was committed on bail.  Insofar as the plea was concerned, as I said, the excellent written submissions of Ms Ballard were tendered, and I have had the opportunity to fully read those, and they have been spoken to today.

12In addition has been tendered the psychological report of Mr Cummins, Exhibit 2, together with the counsellor's report, Exhibit 3.  Mr Berry's letter, Exhibit 4, to the Court, which I accept as genuine.  One never likes to be involved in sentencing, even a relatively young man, he is now 30, to gaol.  As I have said and what has become clear, given his background, there has been no option for him currently to be in gaol, and in my view to be in gaol for longer. 

13However, hopefully, given the sentiments expressed, given the negative drug screens demonstrated in Exhibit 6 and the bundle of certificates demonstrated in Exhibit 7, not only has there been the remorse shown by the plea of guilty but the Court would give credence, to a limited degree, to the proposition that there is genuine remorse shown.  And that is as a result of his expressions to Mr Cummins, his expressions to his father and I take into account the valuable letter which seemed to me to be very honest from Mr Berry senior, which is Exhibit 5.

14However, as one must understand, we are in a position where Mr Berry's life has been greatly affected by drugs.  However it started, he is now a person of the age of 30.  Despite his history, in the end there is only one way he is going to stop that drug addiction and that is by having the guts to stop himself.  If he does not, his path is clear.  Not only will he never see his two girls, not only will he continue to suffer from mental distress.  The drugs to date have caused paranoia, and psychiatric imbalance, to the degree that he has attempted to take his own life.

15The addiction has obviously impacted on his capacity for employment, it has estranged him from his own father and placed him in a position where he has been living the life of the drug milieu and the drug addicted, which is a life of crime, theft and generally disappointing everyone who loves you.  It is also a life where your mental health is greatly impacted.  This Court of course always takes into account the great burden of sentencing someone to gaol, especially a person hopefully who has some future, a person with intelligence who has shown that he had the capacity, at least for five years, to beat the rigours of a drug addiction.

16However, given the circumstances which have led to him being in gaol and which will lead to the sentence I am about to impose, although one hopes for rehabilitation, one must be guarded about that hope. Insofar as your personal circumstances are concerned, Mr Berry, I have taken into account in particular these matters set out in the written submission, in particular, [11] to [24], those matters have been highlighted by your counsel today.

17I take into account the principles set out in the case of Bugmy (2013) 249 CLR 571, [44] by way of your background. I also take into account that your counsel has submitted that, not by way of excuse but by way of explanation, that these are the offences of a person in the throes of drugs addition and I think everything that I have already said acknowledges that totally. I do not want to repeat it, but it is that very drug addiction that has led you to these criminal offences, serious criminal offences I stress, together with the impacts on your family, your own mental stability, your capacity for employment. I do, however, take that into account as the explanation for these crimes.

18In particular, you are entitled to a discount for the plea of guilty.  That plea of guilty of course is a plea that is utilitarian on behalf of the community, effects the course of justice and indeed does demonstrate remorse.  This is not in any way to diminish that plea, but in the circumstances as was put, given the CCTV footage, no doubt inevitability this would have been the position that you would have been taking.  I do, however, apply the appropriate discount in the sentence I am to impose.

19As has been pointed out by the High Court recently, the fundamental importance of sentencing in all cases before this Court, and hopefully the manner in which this Court has always carried out its task, is to sentence you appropriately upon the particular circumstances of this case presented to me.  Those circumstances as I have said are the totality of the matters put in written submission, in the exhibits tendered on your behalf and in the matters put to me today.

20Despite my expression as to appropriate sentence to the prosecutor, your counsel maintained that an appropriate sentence in all circumstances would be a determination under s.41 of the Sentencing Act, whereby a period of immediate imprisonment would be combined with a community correction order.  As I said to the learned prosecutor, and as I confirm having considered the matters put to me by your counsel, this is not, given the seriousness of the crimes, an appropriate occasion for such a disposition. 

21I find, there is only one appropriate disposition, and that is a period of immediate imprisonment, which will be followed by a period of parole.  I indicate to you that that period of parole will be less than I had envisaged originally because I take into account that you have, while waiting for this plea, lost the ability in regard to your current sentence to seek parole.  Indeed, the specifics of that are that there is almost two months elapsed for the time that you would have otherwise been eligible for parole until the time of this sentence.

22Taking all of those matters into account therefore I intend to sentence you as follows.  If you would be good enough to stand up Mr Berry.  Insofar as Charge 1 on the indictment, you will be sentenced to imprisonment of four years.  In regard to Charge 2 on the indictment, you will also be sentenced to imprisonment of four years.  I make no order as to cumulation in regard to that matter.  Insofar as the period of which you must serve prior to being eligible for parole, I impose a period of 20 months and I indicate that I have specifically reduced that figure, bearing in mind the circumstances whereby you have not been able to seek parole.

23I indicate to you that had you not pleaded guilty, pursuant to the requests of Parliament, while not always that easy to do because that request is around the fact of not pleading guilty only, there are many, many factors that come into a sentence on your behalf.  However, doing as best I can to comply with the will of Parliament, can I indicate to you that had you not pleaded guilty to both of these crimes, the aggregate sentence that I would have sentenced you to would have been a period of five and a half years with a minimum of three and a half years.

24So, it is important to point out to you that the sentence, in effect with no cumulation, of four years with a minimum period to serve before being eligible for parole of 20 months is indicative of the importance to you of the plea of guilty.  The summary matters of which you have also pleaded guilty to.  On the bail matter, I will sentence you to a period of imprisonment of one month.  On the breach of the family intervention matter I will sentence you to a period of imprisonment of three months.  Again, I will make no order as to cumulation.

25So that the totality of the sentence, Mr Berry, that will be imposed on you for all of those offences, but in particular the two charges of attempted armed robbery is a period of imprisonment of four years with an order that you must serve 20 months before being eligible for parole.  That declaration is to be recorded in the records of this Court as will be the 6AAA declaration.  Are there any other matters, Mr Prosecutor?

26MS BALLARD:  As Your Honour pleases.

27MR HENDERSON:  No, Your Honour.  No.

28MS BALLARD:  No, Your Honour.

29HIS HONOUR:  Yes, I thank you both for your assistance.  The prisoner can be taken away.  Yes, I'll excuse counsel. 

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