Director of Public Prosecutions v Berry

[2014] VCC 1765

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01708

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDAN BERRY

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2014
DATE OF SENTENCE:	17 October 2014
CASE MAY BE CITED AS:	DPP v Berry
MEDIUM NEUTRAL CITATION:	[2014] VCC 1765

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Ellwood
For the Accused	Mr A. Jackson

HIS HONOUR: 

1Brendan James Berry, you can stay seated for the time being.  You have pleaded guilty to an indictment charging you with two offences of theft, one offence of aggravated burglary, one of reckless conduct endangering a person or persons, and one offence of possessing a firearm whilst being a prohibited person.  The offences of theft carry a maximum term of imprisonment of ten years each.  The offence of aggravated burglary carries a maximum term of imprisonment of 25 years.  The charge of reckless conduct endangering a person carries a maximum term of imprisonment of five years.  Possessing a firearm whilst being a prohibited person carries a maximum term of imprisonment of seven years.

2You have also admitted a number of prior convictions and court appearances, although the last of those was in September 1998. I note that apart from these offences, for which I have to sentence you today, you have no other court appearances up to the appearance before Her Honour Judge Wilmoth, for which you were sentenced on 26 August 2011.  For a person with the kind of bad behaviour that you exhibited during the 1990s, to have kept out of trouble, apart from these matters in 2001, for that period of time is I think encouraging in terms of your rehabilitation in the long term, although that is not without difficulties, as I will come to in a moment.

3The prosecution tendered a prosecution opening on the plea, which is Exhibit A.  That was read out in court this morning, I am not going to repeat it.  I incorporate it, in its entirety, in to these reasons for sentence.   It is accepted as being an accurate statement of the facts upon which I can proceed to sentence you.

4The first of the offences occurred on 12 November 2001, when you stole a Mitsubishi Express van.   That vehicle was used to commit the offences that took place on 18 December 2001 in the early hours of the morning, when you participated in an aggravated burglary at a retail shop in Malvern Road, Glen Iris, and stole $73,214 worth of women's fashion clothing, including suits, dresses and shirts.  During the course of making your getaway you were pursued by a police vehicle, in which the victims of the offence, the subject of charge 4, of reckless conduct endangering serious injury, were on duty.  It was whilst that pursuit was taking place, albeit at relatively low speed, that you used the firearm, namely a .22 calibre repeating rifle, which you had used during the course of the aggravated burglary, to fire a number of shots in to the air, no doubt to dissuade them from continuing their pursuit.  As it was, it seems that they were unaware, at that stage, of what you had done.  Not long after that you abandoned the vehicle, ran away and were successful in evading capture.   But you left behind various items, including the sledgehammer that had been used to break in to the retail premises, a black balaclava, the sawn off 22 calibre repeating rifle and various fired cartridge cases and unfired cartridges.  There was a blue balaclava and the radio scanner also found on the front passenger seat of the vehicle.

5The burglary was reasonably planned.  It was successful in the sense that you were able to carry it out without actually being stopped.   You did not get away with it, because a neighbour saw what was going on, telephoned the police, and they were on hand fairly quickly.

6The aggravated burglary offence is quite a serious one of its kind.  There are more serious ones and there are less serious ones, but it is aggravated by the fact that you did take a firearm in there.  I accept entirely that you did not take it in there with the expectation that you would find anybody within the premises, indeed that was the whole plan of attending at two o'clock in the morning, or shortly after, to avoid bumping in to anybody else.   But you took it in case you were disturbed and would no doubt have used it to menace anybody that tried to prevent you completing the offence.  I accept that you did not intend to harm anybody with the weapon.  It, nevertheless, is an aggravating feature in that not only did you have the weapon but you had ammunition and it is in such circumstances that not only can people be extremely frightened being confronted by a person with a balaclava, and a weapon of that kind, but it can, in certain circumstances, lead to persons either being caused serious harm or being killed.  It is for that reason that it is clearly an aggravating feature of the offence, despite your lack of intent, or expectation, that you would actually need to use the weapon.

7I do regard the firing of the weapon, albeit in to the air, as a serious offence.  It was a highly dangerous thing to do.  It could have caused injury, as you well know, and was calculated to be frightening to the persons in the police car.  The fact that it did not, at that stage, actually frighten them, because they did not know what you were doing, is not to the point.  When they did discover, I am told that they did have an emotional reaction to the knowledge that they might have been harmed by your activity and the danger that they potentially were in, in those circumstances.  There is no victim impact statement, but I think I can reasonably infer that that knowledge would have caused a not insignificant emotional response for the two police officers involved.

8You were a prohibited person within the terms of the Firearms Act, from possessing any firearm, much less a sawn off 22 repeating rifle.  That, too, is an offence which is regarded by Parliament as a serious one, carrying a maximum term of imprisonment of seven years and I regard it as a serious offence.

9Having made your escape, there was nothing at that stage linking you to the crimes and they went undetected for many years, until you were in custody as a result of the offending for which you were sentenced by Her Honour Judge Wilmoth, and which occurred on 22 January 2011.  A DNA sample was taken  from you, and it matched with DNA recovered from items located in or about the van used in the commission of the offences on 18 December.  As a result of that you were suspected of having been involved in the offence and you made admissions in conversation with two police covert operatives whilst you were at the Melbourne Custody Centre on 15 February 2012 and so it was that you were interviewed in relation to these matters.  You chose at that stage to make a no-comment record of interview as you were entitled to.  But you have pleaded guilty to these matters and you indicated a willingness to resolve the matter in or about July of this year.

10It is to your credit that you have admitted your guilt and there is considerable value in you having done so.   You have saved the state the cost of a trial and the witnesses the inconvenience of having to give evidence.  It might have been difficult, other than through the connection with the DNA evidence, and the admissions you made, to have put together an overwhelming case for the prosecution.  So I think that the fact that you did admit your guilt does attract a significant discount in the sentence that would otherwise have been appropriate.

11Turning to matters personal to you, your counsel provided me with a written outline of submissions, along with a report from Mr Jeffrey Cummins, dated 25 August 2011, which are Exhibits 1 and 2, respectively.  I was also provided with a copy of the reasons for sentence by Her Honour Judge Wilmoth, in relation to the offence of intentionally causing serious injury for which she passed sentence on 11 August.  That material, in combination, provides a deal of information about your background.   I do not propose to repeat it all in these reasons for sentence.

12You left school after year 10, but you were not employed for any great length of time and as I understand it you have not been employed for a considerable number of years, having chosen to live with your father, and essentially act as his carer.  As I understand it also attending the gym, at least in the earlier days, that he ran in Richmond and passing your life in that way.  I note that Mr Cummins suggests that you have a very dependent relationship with your father.   No doubt that was the way in which you managed the depression that you seemed to have suffered from for a considerable number of years.  Her Honour Judge Wilmoth took that in to account in sentencing you, in acknowledging that it somewhat reduced your moral culpability for the offence involving shooting your brother. 

13It seems to me that it has some relevance to these offences, although it is not quite so easy, perhaps, to see the link between the mental impairment of depression, dysthymic disorder, and this planned venture, or these planned ventures.   But I note that it was in the context of you suffering from that condition, or likely to have been suffering from that condition at that time that those events occurred.

14Perhaps more relevantly, I accept that for you to be serving a term of imprisonment with that mental impairment will make, and no doubt has made, your capacity to deal with it more difficult than that for a person who did not have that mental impairment.  So I take those matters in to account in further moderation of the sentence that would otherwise have been appropriate.

15Your period of being trouble free between these events of December 2001 and the offence of intentionally causing serious injury on 22 January 2011, a period of nine and a bit years, does, I think, indicate that you have the ability to stay out of trouble.  It seems to me that it is a reasonable conclusion to draw that, having such a close shave in 2001, may have acted as something of a deterrent.  You no doubt realise that if you had been caught you would have served a significant term of imprisonment for those offences, particularly with your, relatively recent criminal record.  It may well be that assisted to keep you out of trouble for that length of time.   But whatever the reason was, it is to your credit, and does show that your prospects of rehabilitation are not hopeless by any means.

16The future for you probably does not look all that good at the moment.  I have no doubt that you felt the departure of your father to a nursing home very substantially and that your separation from that relationship would have had a significant effect upon you.  The fact that you have been deprived of the continued association with him whilst you have been in custody and have the prospect in the future of being deprived of that, I am quite sure will be difficult for you. 

17Because you have not worked for a considerable number of years it will be difficult for you to find work when you are eventually released from prison.   Unless you gather some skills, and perhaps qualifications, whilst you are doing your time, then it will be more difficult for you to obtain work and to forge a life for yourself once you have completed your sentence.

18I think that if you are able to do those things, and make good use of your time in serving your sentence, then your prospects of rehabilitation and staying out of trouble in the future are reasonable, at least, and perhaps good in regard to the period that you stayed out of trouble.  I am urged not to impose a crushing sentence upon you.    I hope that the sentence I have in mind is not in that category.   I certainly do not intend it to be.   I am required to facilitate your rehabilitation as far as I reasonably can and that is what I propose to do.

19The question of whether you get parole when you're eligible to do so will be, I think, very much dependent upon your willingness to participate in the programs that are offered to you and to demonstrate that you are trying hard to equip yourself for life on the outside when you eventually get that opportunity.  I do urge you, and hope, that you will make good use of your time and treat it as a positive rather than a negative.

20I am, of course, apart from being concerned about your rehabilitation, required to express the denunciation of this court of the conduct of the kind in which you engaged and to punish you adequately for your offending conduct, to deter you, to the extent that that is relevant, from committing further offences.  I have already said that I think it is reasonable to infer that you were deterred by the prospects of having to serve a term of imprisonment for these matters and it may well have influenced your period of being able to stay away from the criminal courts during the period between 1998 and 2011.

21So I think individual deterrence is much less important in this case than general deterrence, that is deterring other people from engaging in this kind of conduct.  This had the air of professional crime about it.  It was an offence that was no doubt committed with the expectation of substantial financial reward and the admissions that you did make, suggested that you already had a buyer and the expectation of making a quick $20,000.  The way in which you planned and went about the offence, equipped as you were with the items, is a hallmark of a serious offence of its kind.  It is important that the courts send a message that offending of that kind is not to be tolerated and will result in substantial terms of imprisonment.

22Of course, there is another matter that I have to take in to account, and that is that you are already serving a substantial term of imprisonment.  The sentence imposed by Her Honour Judge Wilmoth was a sentence of eight years' imprisonment and with a non-parole period of five years and six months.  I am told that your earliest release date from that sentence is 6 September 2016.  There is, of course, as Mr Jackson points out, no guarantee that you will get parole at that time, and no guarantee that you will not have to serve the whole of that sentence.  I am required to apply what is known as the totality principle and a principal which requires me to impose no more punishment than is necessary to achieve the sentencing objectives that arise from the application of these sentencing principles.

23I am required to consider not only the appropriate sentence for each offence, but the extent to which it is necessary to reflect your total criminality, in this sentencing, in relation to these offences on this indictment in a total head sentence, but also to consider the extent to which I need to impose a degree of cumulation on the sentence of eight years that you are currently serving.  I need to take all that in to account to ensure that I impose a total sentence that is just in assessing your total criminality and does not impose a crushing sentence upon you, and one that is no more severe than is required by all of those matters.

24It is a balancing exercise and I have to consider all of the matters that I have endeavoured to outline in these sentencing reasons and achieve what I regard as a just result.  You will have noted in the discussion I had with your counsel during the plea, the kind of approach that I have indicated that I would be taking and I am now ready to impose sentence upon you.  So, would you please stand?

25For the offence of theft in charge 1 on the indictment I convict you and sentence you to imprisonment for a period of nine months.  For the offence of aggravated burglary on charge 2 on the indictment I convict you and sentence you to imprisonment for a period of four years.  On charge 3 of theft of the clothing during the course of that aggravated burglary I convict you and sentence you to imprisonment for a period of two years.  For the offence of recklessly endangering persons of serious injury I convict you and sentence you to imprisonment for a period of 12 months.  On the charge of being a prohibited person in possession of a firearm I convict you and sentence you to imprisonment for a period of two years.

26The sentence of four years on charge 2 is to be regarded as the base sentence and I order that one month of the sentence on charge 1 and five months of the sentence on charge 4 be served cumulatively upon that sentence of four years, making a total effective sentence of five years.  I then have to go on to consider the extent to which that sentence should be served cumulatively upon the sentence you are currently serving.  It seems to me that justice requires that you be punished further for that offending conduct and I order that two years and three months of the sentence of five years that I have just pronounced be served cumulatively upon the sentence you are currently serving.

27The next stage is for me to set a new non-parole period for the whole of the offending conduct, that is that for which Her Honour Judge Wilmoth imposed a sentence of eight years, with a non-parole period of five and a half years, and for these matters.  I set a new non-parole period for all of those matters of seven years' imprisonment.  That effectively adds one and a half years to the non-parole period that was originally imposed upon you.

28I make the orders for forfeiture and disposal of property in accordance with the drafts with which I have been provided.  I understand there is no pre-sentence detention to declare.

29MR ELLWOOD:  That is so, Your Honour.

30HIS HONOUR:  Is there any other order that I need make?

31MR ELLWOOD:  Section 6AAA.

32HIS HONOUR:  Section 6AAA, yes, but for your pleas of guilty I would have sentenced you to a term of seven and a half years' imprisonment with a non-parole period of four years.

33MR ELLWOOD:  Your Honour, could I just check, Your Honour imposed, on the base sentence, as I understand it, a one month cumulation from charge 1 and a five month cumulation from charge 4.  That, as I understand it, would make it ‑ ‑ ‑

34HIS HONOUR:  It is four years and six months.

35MR ELLWOOD:  Six months, not five years.

36HIS HONOUR:  Yes.

37MR ELLWOOD:  I am not sure whether Your Honour then maintains the two years and three months.

38HIS HONOUR:  I had four years and six months originally in mind and then after Mr Jackson's eloquent plea I reduced it by six months.

39MR JACKSON:  I trust the transcript will be sent in an email as soon as possible.

40HIS HONOUR:  That is right, yes, that should be published, should it not.  So the total effective sentence is four years and six months, but I make the other orders, two years and three months by way of cumulation, and the overall non-parole period of seven years.

41MR ELLWOOD:  As Your Honour pleases.

42MR JACKSON:  Just to be perfectly clear, I know this is a state sentence, and I have had difficulty with Commonwealth sentences, which drives me insane.  The effect of what Your Honour is sentencing is that he does an extra year and a half on the non-parole period that he is presently serving.

43HIS HONOUR:  On the bottom, that is right, correct.

44MR JACKSON:  What I will have my instructing solicitors do is check with Corrections in a couple of weeks to make sure that their paperwork reflects what Your Honour has sought to achieve.  If there is any difficulty I will have my instructor contact Your Honour's associate and we will see what needs to be done, if anything.  I raise that as an abundance of caution.

45HIS HONOUR:  So it is 27 months on the top, 18 months on the bottom, in addition to what he has already served.

46MR JACKSON:  Thank you, Your Honour.

47HIS HONOUR:  All right, I have signed those drafts, Mr Ellwood.

48MR ELLWOOD:  Thank you, Your Honour.

49HIS HONOUR:  Thank you.

50MR JACKSON:  Might I approach the dock just before my client goes down?

51HIS HONOUR:  Yes, you may.

‑ ‑ ‑