Director of Public Prosecutions v Berry

[2018] VCC 233

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-02403

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID BERRY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	2 February 2018
CASE MAY BE CITED AS:	DPP v Berry
MEDIUM NEUTRAL CITATION:	[2018] VCC 233

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Offender	Mr S. Anger	Victoria Legal Aid

Pages 1 - 8

 

 

HIS HONOUR: 

1David Berry; in the early hours of 27 December 2016 you went with a friend, Leah Pollet, to a unit in Seymour, where she was staying from time to time.  The victim lived in this unit.  You did not know the victim.  Pollet wanted to move out and you were there to help her.  Pollet got some bags and was heading out when you, for some reason, accused the victim of touching young girls.

2You then, quickly thereafter, commenced a brutal attack on the victim.  First you punched the victim to the head, then you got a wooden pole and hit the victim multiple times to the head, causing him to bleed.  He headed to the safety of his room and locked it from the inside, but it was to no avail, as you applied real force upon the door, breaking it from the door jamb.  Once inside his bedroom you continued to attack the victim with your fists, and other objects you could lay your hands on, including the victim's guitar.  He yelled out to you that he was going to die.  Rather than cause you to stop you responded by saying, "You are going to die you pisshead".

3Ms Pollet had left the unit, but upon hearing the commotion she came back, and seeing the victim bleeding and injured she yelled at you to leave.  She did not pause to give the victim any help, or call for help.  As you and she left you said you wanted to go back to "get" the victim.  That is, recommence your violence.  Fortunately you did not go back.  When you had left the victim escaped, and despite his injuries, climbed over a fence to his neighbour's yard.  He then walked, somehow, half a kilometre to the Seymour Hospital.  Because of his injuries he had to be transferred to the Royal Melbourne Hospital.  His injuries included two fractured ribs, which gives explanation or reveals the force that you used in hitting him with the weapons that you had.  He also had a small lung contusion.  Injuries to the lungs are always dangerous.  He had possible fractures of his nose and there were multiple bruises, abrasions, and a laceration to his head requiring five stitches.

4You were charged and have pleaded guilty to intentionally causing injury and aggravated burglary; the latter being the breaking into the victim's room with the intent to assault, knowing the victim was in the bedroom.  Indeed, he was there to escape your earlier violence.

5This was serious criminality.  You decided to inflict retribution, or punishment, on the victim.  This makes your behaviour grave and intolerable.  The victim was entitled to feel safe in his unit, and in his bedroom.  He was compelled to seek refuge from your attack in his locked room, but you breaking the door off the jamb reveals the ferocity, and thus the gravity, of your behaviour.  I have looked at the photographs, which reveal the sort of force involved.  It also shows the solid and dangerous nature of the wooden pole and the utter destruction of the guitar.  Also shown is considerable blood on walls, objects and the floor.

6Adding to the gravity of your crime is that you have a long and serious criminal history regularly involving violence, which has been ultimately met with gaol terms.  I will return back to your prior criminal history shortly.

7On your arrest on 11 February 2017 you denied involvement, saying you were in Melbourne.  Investigations revealed that your fingerprints and DNA implicated you in the crimes.  When you were arrested you were bailed, but failed to appear.  Ultimately you were remanded on 25 October 2017.  You resolved the matter shortly thereafter, indicating a plea on 28 November 2017.

8You have been in custody for 101 days, and to your credit, you have used your time in custody usefully, and have reflected - and it is said - generally gained insight.

9Your attack had an adverse effect on the victim.  In his victim impact statement, which was read to the court, he wrote:

"The crime has affected me in a range of ways.  Physically I'm not as alert.  Mentally I sometimes find it difficult to keep appointments.  I lack mental energy.  My memory has deteriorated.  Sometimes I'm confused and experience flashbacks and have difficulties making sense of what's going on around me.  I definitely feel traumatised emotionally and mentally.  I feel my life has been turned upside down".

10It goes on to say:

"To this day I don't know why I was attacked", effectively.  "Not knowing why is mentally tormenting".

11He adds that the guitar that was smashed over his head was something that gave him some therapeutic relief, as it were - back in the day - but he has not played the guitar since.  Socially he says:

"I'm uncertain how to go forward.  My social and emotional well-being is now fragile; a direct result of the incident.  The crime has affected me severely.  My life after just on 12 months since the criminal incident is very different to what it was before the incident".

12And that was confirmed in relation to the fact that he remains in the flat and bedroom and finds sleep difficult.  These are matters that I must, and will, take into account in the sentencing process.

13You, Mr Berry, are now 36.  It was mentioned you have a concerning criminal history, commenced in your teens.  You have a long list of driving offences; many of which ultimately saw gaol terms imposed.  Also commencing early, and continuing, are your crimes of violence, including assaulting police, resisting arrest, unlawful assault, intentionally causing injury, making threats to kill and routinely breaching intervention orders.  You have served a number of terms of imprisonment.  Efforts to assist you with community corrections orders - and earlier on, an intensive corrections order - have failed, with you breaching those orders and being brought back to court.  Your prior history makes it clear that weight must be given to deterrence to you.  Also, those prior matters, taken along with other factors I will mention, means that I am forced to see your prospects of rehabilitation as uncertain at best, as I will outline shortly.  Your prospects do have in your favour your good working history, the support of your mother - who will provide you with a place to live upon your release - and the role that you wish to play as a parent of your three children.

14The other aspects of your personal circumstances that are concerning are your longstanding and serious abuse of alcohol and your use of, and addiction to, many drugs.  It was put on your plea that you were significantly affected by alcohol and drugs at the time of your offending.  While that no doubt is the case, your intoxication is no excuse - on the contrary.  Your violence in the past, and your long term abuse of alcohol, makes it clear that when you are intoxicated, as you were in this instance, you can be violent, and thus it is not mitigatory - on the contrary.  Alcohol or intoxication makes you disinhibited, it seems, and unrestrained.  As conceded by your counsel, you well knew that you can act that way when drunk, but you have done nothing to change your ways and deal with your problems.  Ultimately you must get professional help, Mr Berry, to assist to overcome these problems.

15You have a good work history, working in your father's business as a concreter for many years.  However, since your incarceration in 2015 you have not been able to get back into the workforce.  You have had a long term relationship and three children from it.  There were intervention orders which were breached.  Ultimately you were imprisoned in 2015 and 2016 and became homeless in that period of time that your drug use escalated.

16The medico-legal psychologist who saw you for this plea - Mr Simmons - wrote of your anxiety and symptoms of depression.  He noted your long abuse of alcohol and use of drugs - in particular, ice - and understandably he recommended ongoing counselling and referral to a psychologist to teach you cognitive behavioural strategies.  Ultimately, engaging in such treatment and abstinence from drugs and alcohol will depend on your own efforts.  Again, this was a matter acknowledged by your counsel, who indicates that you yourself have some insight now into these matters.

17Your plea of guilty means that your sentence will be less.  You acknowledge the wrongfulness of your behaviour and you indicated your current incarceration is a wake-up call.  Whether that is borne out when you are released will be up to you.  Taking into account your plea of guilty, and what you have expressed through your counsel in the plea - and to Mr Simmons - establishes a degree, or a level, of remorse.  What is clear is that significant weight must be given to denunciation of your violent crimes.  That is achieved not only by my words, but also by a stern, but just punishment, involving imprisonment.  I must, by my sentence, appropriately deter you from ongoing crime, and deter others from using violence and breaking into private houses and places, intent on assault.  As the prosecutor submitted, "The community is sick and tired of these types of offences.  It creates fear in our community".

18Your counsel relied upon the important decision of our Court of Appeal of
DPP v Boulton.  Since the time of that decision Parliament has reduced the period of imprisonment available to combine with a community corrections order; again altering the sentencing landscape.  While community corrections orders can simultaneously punish and rehabilitate, as the Court of Appeal has noted in decisions subsequent to Boulton, the decision of Boulton is not "a get out of gaol free card", and imprisonment with the potential for parole can be the just and appropriate sentence for serious crimes such as what you committed, and - taken with all your personal circumstances - those matters personal to you that are for and against you.

19The Court of Appeal - in a number of cases commencing with Hogarth, Myers, Bowden and Robinson & Robinson - have made clear, and restated, that aggravated burglary must be met with stern punishment proportionate to the offending and the offender, but punishment that properly reflects the maximum term of 25 years and the communities concerns regarding these types of violent, frightening crimes.  The prosecutor submitted that the only option was a sentence of imprisonment longer than would allow for a community corrections order.  The appropriate sentence according to the submission of the prosecutor was one that would require the fixing of a minimum term.  He set out the characteristics of this offending, and your past, that established why, in all the circumstances, the offences required terms of imprisonment, and I have taken that submission into account, as I have with the careful submissions of your counsel.

20In my view, given what I have set out as to the gravity of both crimes on the indictment, your prior history - together with the matters in your favour - I have come to the conclusion, grave as it always is, the only sentencing option that properly meets the sentencing purposes of denunciation, punishment, deterrence, protection of the community and rehabilitation is a term of imprisonment, and one longer than would allow for a community corrections order.  I do not consider a community corrections order, in the circumstances -given your past - is at all appropriate.

21For committing the crime of aggravated burglary you are sentenced to be imprisoned for three years.

22For committing the crime of intentionally causing injury you are sentenced to be imprisoned for two years.

23For the summary offence of failing to appear you are sentenced to two months' imprisonment.

24For stating a false name to a police officer you are convicted and fined $100.

25Fourteen months of the sentence imposed on the intentionally cause injury and one month on the sentence imposed for the failing to appear are cumulative upon each other, and upon the sentence imposed for the aggravated burglary.

26That gives a total effective sentence of four years and three months, and I fix a minimum non-parole period of three years before you are eligible for parole.

27You have already served 101 days on remand.  This figure having been reckoned I declare that that amount of time - 101 days - is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 101 days of the sentence that I have imposed.

28Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of five years and six months with a minimum term of four years and three months.

29I make orders relating to the disposal of the wooden pole.  Is there anything further required?

30MR CORDY:  No, Your Honour.

31MR ANGER:  I haven't done the maths myself, but I'm instructed it was 102 days pre-sentence, Your Honour.  Is that ‑ ‑ ‑ 

32HIS HONOUR:  Well, Mr ‑ ‑ ‑ 

33MR CORDY:  It's not including today; the 101.

34MR ANGER:  Okay, yes.  No ‑ ‑ ‑ 

35HIS HONOUR:  Mr Cordy put forward 101 days ‑ ‑ ‑ 

36MR ANGER:  I missed it.

37HIS HONOUR:  ‑ ‑ ‑ not including today.

38MR ANGER:  Yes, I - that's the ‑ ‑ ‑ 

39HIS HONOUR:  Do you think that's ‑ ‑ ‑ 

40MR ANGER:  That may be the error.

41HIS HONOUR:  And that's the way it is.

42MR ANGER:  Yes, Your Honour.

43HIS HONOUR:  The sentence starts today.

44MR ANGER:  Yes, Your Honour.

45HIS HONOUR:  Thank you.  You can be seated, Mr Berry.

46MR CORDY:  Just one matter.  If I could just confirm, Your Honour; in relation to the state false name, was that fine with conviction?

47HIS HONOUR:  Yes, convicted and fined $100.

48MR CORDY:  Yes, thank you.

49HIS HONOUR:  Thank you.  Those orders have been signed.  Mr Berry can be removed.  Thank you for your assistance, Mr Anger, and feel free to leave the Bar table ‑ ‑ ‑ 

50MR ANGER:  Yes, Your Honour.

51HIS HONOUR:  ‑ ‑ ‑ whenever I need to discuss the listing of cases in other matters briefly with Mr Cordy.  Thank you.

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