Director of Public Prosecutions v Berry
[2013] VCC 547
•10 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00431
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRADLEY BERRY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 May 2013 | |
DATE OF SENTENCE: | 10 May 2013 | |
CASE MAY BE CITED AS: | DPP v Berry | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 547 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence –
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Flynn (Plea) | Office Public Prosecutions |
| Ms R. Maxwell (Sentence) | ||
| For the Accused | Mr M. Cahill (Plea) Mr A. Cini (Sentence) | Turnbull Lawyers |
HER HONOUR:
1 Bradley Berry, you have pleaded guilty on Indictment C12667783 to 25 charges of theft, the maximum penalty for each offence is 10 years' imprisonment. You have also pleaded guilty to 17 charges of obtaining property by deception, the maximum penalty being 10 years' imprisonment, and guilty to four charges of attempting to commit an indictable offence, one of those four charges being attempted theft and the other three being attempted armed robbery. The maximum penalty for attempted theft is 5 years’ imprisonment and the maximum penalty applicable to attempted armed robbery is 20 years’ imprisonment. You have also pleaded guilty to seven charges of handling stolen goods, the maximum penalty is 15 years' imprisonment.
2 You have also agreed pursuant to s.145 Criminal Procedure Act 2009 to this Court hearing five summary charges. They were four charges of assault with a weapon, and one charge of dealing with property suspected as being proceeds of crime. The maximum penalty applicable to those summary offences is 2 years’ imprisonment.
3 Immediately prior to this plea being heard by me, you also appealed the Conviction and Sentence imposed at Geelong Magistrates’ Court on 20 February 2013. The charge of deal with property suspected of being proceeds of crime was proven and I indicated at that stage that I was intending to sentence you to one month's imprisonment and I indicated I intended to order 7 days of that sentence be served cumulatively upon the sentence imposed on the charges before me in relation to your plea hearing. I also said that I would formally sentence in relation to the appeal matter when sentencing for the other offences before me today and I shall return to this at the end of these sentencing remarks.
4 Your offending to which you have pleaded guilty occurred between 11 June and 27 July 2012. On the last date you were arrested. Before me was a Prosecution Opening dated 30 April 2013 which contained a summary of agreed facts relevant to your offending behaviour (Exhibit A). In summary, the bulk of your offending involved theft of cash, credit cards, jewellery and other personal items from various people in shops/shopping centres. These were committed with your co-offender, Jackie Orme. In addition to those offences, you conducted a number of transactions using credit cards you had stolen from three of your victims to obtain property to the value of $3,600.
5 On 27 July 2012 following the last theft (Charge 43), you and your co-offender were followed by security staff from Westfield Plaza Shopping Centre.
6 After you left the Centre, one of the security officers approached Ms Orme, who agreed to remain with the officer. You were then approximately 20 metres away from Ms Orme and when approached by other security officers, you became aggressive and abusive. You produced a large hunting knife from the front of your tracksuit pants. Security officers, Moore, Hayes, Frame and Harrower were in the vicinity at the time. You swung the knife towards them. The swinging of the knife towards the four security officers constituted the four summary charges of assault with a weapon.
7 Following that altercation, you ran along Western Beach Road armed with the knife. You approached a motor vehicle containing two occupants, 67 and 70 years of age, one of those being Coral Nicholson. You opened the rear passenger side door of that car and entered armed with the knife, although the occupants of the car did not see the knife. You said “Drive, lady”. The female victim, Ms Nicholson, opened the door and got out of the car while the car was still moving. Her husband pulled on the handbrake and stopped the vehicle.
8 You then exited that car and ran off, again along Western Beach Road, and approached another vehicle driven by Theresa Stewart, a 42 year old female. You caused her to stop her vehicle. She was able to slam the door of the car onto your arm in the door frame. When she was in her car, she saw the knife in your hand at her face level. You managed to pull your arm free then ran to the other side of Western Beach Road.
9 You then approached another motor vehicle containing Helen Thomas and her two grandchildren, 6 and 4 years of age. You were aggressive and banged on the window of her car for her to open the door. You still had the knife. You were unable to open the door. You then ran off into Cavanagh Street attempting to stop other vehicles. You continued to be followed by the security officers, who by that stage contacted the police.
10 You tried several other vehicles until the police approached you, ordering you to drop the knife and to lie on the ground. You did this, you were arrested and taken to Geelong Police Station.
11 Your car, a 2009 Toyota Camry sedan was subsequently located in a car park at Westfield Plaza Geelong, bearing stolen number plates. Those number plates were the subject of Charge 47.
12 Located in your vehicle, and constituting Charges 48, 49, 50, 51 and 52, were another stolen number plate, a mobile phone, a Sony digital voice recorder, a BMW car key with tag registration, a Samsung mobile phone and a Nokia mobile phone. Each of those items had been stolen from the victims named in the Prosecution Opening.
13 In addition, in your car police located three gift cards which constitute the summary charge of dealing with property suspected of being proceeds of crime (Summary Charge 59).
14 You were taken to the Geelong Police Station and interviewed. You answered “no comment” to the questions asked of you by police and of course to answer that way was your right.
15 There is no doubt your offending is serious and in particular the offending involving attempted armed robbery. I have no doubt the occupants of each vehicle were very frightened by your actions, including the two grandchildren in the car driven by Ms Thomas.
16 There was a victim impact statement before me from Coral Nicholson. Ms Nicholson has suffered considerably in the manner described in her victim impact statement. It is also apparent from the statements made by Ms Thomas and Ms Stewart, contained within the depositions, that they were also scared by your behaviour towards them.
17 I also consider the victims of the other charges suffered in particular the inconvenience to them following loss of their property, such as credit card replacement and so on.
18 I sentence you on the basis of the agreed Prosecution Opening (Exhibit A) and the discussions I had with your counsel, Mr Cahill, during the course of your plea hearing regarding your offending. Suffice to say, I regard the totality of your offending as very serious indeed.
19 There are aggravating aspects of your offending. There were 40 victims involved. Also, your offending occurred on many occasions and over a significant period of time (approximately 6 weeks).
20 Mr Cahill submitted that at the time of your offending, and in particular from 2006, your drug use had escalated. He was not relying on your drug use as mitigatory and nor is it. For completeness, I state I do not sentence you on the basis that your drug use was an aggravating feature of your offending.
21 Ms Orme, your co-offender, appeared at Melbourne Magistrates’ Court on 13 December 2012. She appeared on more theft charges and other offences not before me in your case. Ms Orme, however, did not face any offences of attempted armed robbery relevant to 27 July 2012. Also, Ms Orme was 18 years of age at the time of sentence, considerably younger than you. She was convicted and placed on a Community Corrections Order for 12 months with conditions attached.
22 That a co-offender has been dealt with is relevant and I shall return to the issue of parity later in these sentencing remarks. Suffice to say at this stage, I consider there are a number of features which distinguish you from Ms Orme for the purposes of sentencing.
23 You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour and I do so. The community has by your plea of guilty been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. I accept that your plea has resulted in a saving of Court time and has prevented a significant number of victims of your offending the need to attend Court should this matter have proceeded to trial.
24 You also indicated your intention to plead guilty at the earliest opportunity once those representing you were able to discuss the charges with the prosecution. I also accept you volunteered some of your offending to police, for which they otherwise had only minimal information. In particular, you pleaded guilty without the police needing to take statements from a number of the victims of your offending.
25 I have taken those matters into account in your favour when sentencing. You are entitled to a sentencing discount by reason of those matters.
26 I accept in your case your plea of guilty indicates remorse for your actions. Mr Cahill submitted your pleas of guilty were also relevant to your rehabilitation prospects. As I discussed with Mr Cahill however, I have concerns overall regarding your rehabilitation prospects.
27 You have an extensive criminal history involving numerous Court appearances between 1994 and 2001 for offences of dishonesty, and perhaps not surprisingly, drug offences including use, possession of various drugs including ecstasy, cannabis and heroin over the years, also driving offences. None for armed robbery or attempted armed robbery, I note. In the past, you have also received a variety of sentencing dispositions for your offending, including fines, suspended sentences, community-based orders, probation, Youth Training Centre and imprisonment. There have also been breaches of community-based orders, suspended sentences and intensive correction orders. You are no stranger to the criminal justice system.
28 Mr Cahill, on your behalf, submitted the three most serious offences before me were the attempted armed robberies. You instructed that you were embarrassed and ashamed in relation to that offending. Mr Cahill correctly observed that whilst a knife was present on your person at the time of those offences, you did not actually use the knife on any of the victims. That is of course true and fortunate.
29 Following being taken into custody on 27 July 2012, you have remained in custody, which was a total of 279 days up to and including 1 May 2013, and of course you have been further remanded to date of sentence.
30 Mr Cahill conceded there were the aggravating features of your offending to which I have previously referred, being multiple victims and that your offending occurred over a significant period of time.
31 Turning to your co-offender, Jackie Orme, you instructed you had recently met her and that she was a heroin user. When you became involved with her, you started using heroin again. You moved out of home when you became involved with her. Your offending occurred against that background.
32 Turning to your personal history, much of that was contained in the Report placed before me by Dr Aaron Cunningham, Forensic Psychologist, dated 29 April 2013. At the time of sentence you are 35 years of age. You were raised in Bacchus Marsh and have an older brother, a younger brother and a younger sister. You described your father as very strict. When you were approximately 10 years of age, your parents divorced and you then lived between your mother and father’s home. Your mother re-partnered when you were 21 years of age, and you spoke in glowing terms to Dr Cunningham about him. You later lived with your father between the ages of 21 and 27. By that stage, you said you had received some counselling and had decided to direct your life in a more positive direction. You lived with your father, joined a local football club and began a relationship with Danielle. During that period in your life it appears there was some stability.
33 When you were 27 years of age your relationship with Danielle ended. That, as well as you having suffered an injury in football, feeling a lack of acceptance by your father, led you to relapse into significant heroin dependence.
34 Approximately a week prior to your recent incarceration, you stepfather passed away leaving your mother on her own and in ill health. Your mother has had a back problem for the past ten years and is prescribed morphine. You presented as anxious with regard to her welfare. I shall return to this in due course, as Mr Cahill submitted I should, when sentencing you, be satisfied there were exceptional circumstances relevant to family hardship which would mitigate the sentence to be imposed for your offending.
35 You attended Darley Primary School but were expelled during Grade 5. You then attended Bacchus Marsh Primary School and later Hoppers Crossing Secondary College. You were expelled from the latter during Year 9 and subsequently from Bacchus Marsh Secondary College in Year 10.
36 You began working as a cabinet making apprentice, also working in plastering with a friend. You had had other short periods of employment as a sign fabricator, in steel frames, carpentry, mechanics and maintenance. You have been essentially unemployed since you were 27 years of age, although have expressed a desire to work as a personal trainer.
37 Turning to your drug and alcohol history, you began cannabis use at the age of 14 and amphetamine at 16. You have had ongoing relapses of amphetamine and methylamphetamine abuse. You began the use of heroin at 18 and reported an ongoing dependence to it. You said you had not engaged in inpatient drug and alcohol rehabilitation, although had on one occasion, I was told by Mr Cahill, been involved in a drug program at Bendigo jail in the 1990s. I note you have completed a number of courses while in custody over recent years, and I shall refer to those in a moment.
38 You said you were aware that when you relapsed into heroin, you gravitated to a negative peer group.
39 You said you would like to engage with drug and alcohol inpatient treatment at The Basin Centre. You were currently, as I understand it, in receipt of 30 milligrams of Methadone per day.
40 In the opinion of Dr Cunningham, you met the criteria for Major Depressive Disorder and also Substance Use Disorder with respect to your dependence to opiates. Your results placed you in the average range of intelligence with no indication of intellectual impairment.
41 Prior to your offending before me, you told Dr Cunningham about the relationship that you had with a female, which I assume was Ms Orme. You said you were attempting to help her as she was a heroin user and had also been the victim of rape. You said to Dr Cunningham you could not cope with the stress of caring for someone and relapsed into heroin abuse with Ms Orme. This acknowledgment by you of your difficulties coping with stress, and in the context of caring for someone, in my opinion, has some relevance to the submission by Mr Cahill that you would be able to be carer for your mother.
42 At the time of your offending before me you reported to Dr Cunningham you were using heroin, methylamphetamine and benzodiazepines.
43 In Dr Cunningham’s opinion, the development of your Major Depressive Disorder was as the result of the instability in your childhood. In his opinion, you had some protective factors that may reduce your risk, increase your stability and improve your prospects for rehabilitation, such as your passion for fitness and your hope that you could work in the fitness industry. You also acknowledged your drug problem and that you needed rehabilitation. I have no doubt that you are well aware you have a drug problem and that you need to address it in order to live an offence-free lifestyle. That is going to be very difficult for you. Ultimately it will be a matter for you as to whether or not you do cease your drug use. You will need assistance in this regard and it will ultimately be for you to access this, apart of course from any assistance offered by the Adult Parole Board. As I discussed with your counsel, you have not sought such assistance on a concerted basis previously. Recent programs completed by you in custody are of course to your credit. But you are yet to be put to the test as far as your knowledge obtained from those programs when you are in the community.
44 In Dr Cunningham’s opinion, if your Major Depressive Disorder was left untreated a term of imprisonment would weigh more heavily on you compared with a person without that disorder. Further, there was a serious risk imprisonment would have a significant adverse effect on your mental health. He suggested you receive appropriate psychological treatment for that disorder. A copy of Dr Cunningham’s report will be provided to the Adult Parole Board to assist with your treatment.
45 Mr Cahill submitted that the Report of Dr Cunningham, in particular his opinion in the latter part of that Report, supported the application of the restatement of the Tsiaras[1] principles in Verdins[2]. In particular, Point 5, that the existence of that condition at the date of sentence may mean a given sentence will weigh more heavily on you than on a person in normal health.
[1]R v Tsiaras [1996] 1 VR 398
[2]R v Verdins & Ors (2007) 169 A Crim R 581
46 I accept that there should be some moderation of your sentence based on that principle in Verdins.
47 Also before me were a number of certificates relating to your participation in programs and courses whilst in custody previously and when on remand for the offences before me. There was a letter from Heidi Cox, Alcohol and Other Drug Clinician with Uniting Care Re-gen, dated 30 November 2012. You completed a 12 hour drug education program and a 12 hour relapse prevention program. She described your participation in the programs as an impressive standard. You demonstrated insight and contributed meaningfully to discussions. You were willing to learn concepts and apply them to your own circumstances. You were always punctual and had been proactive in engaging clinicians outside program hours for extra advice and support.
48 You presented as strongly determined to make necessary changes to how you address your drug use and had set realistic and positive goals. You had shown a desire to develop a better understanding of your habits. You wanted to attend a rehabilitation facility. There were also two certificates attached in relation to both that drug education program and relapse prevention program.
49 There was also a certificate indicating you had expressed interest in a white card short course. The course was due to start on 25 October 2012. It is unclear from this material whether or not you actually completed that course.
50 There was also a certificate of participation in the 3-hour conflict management program at Port Phillip Prison, dated 25 September 2012. There were also certificates from Kangan Institute indicating that you had participated in 2004 and 2009 in the workplace safety arrangements course, follow workplace hygiene procedures course, apply advanced first aid course, induction course and a certificate into fitness. You completed these courses whilst in custody. Further, there was a Certificate III in Fitness, completed by you in 2008-2009.
51 Whilst acknowledging your participation in these courses and programs, I nevertheless have concerns about your rehabilitation prospects. There is no doubt you have an extensive criminal history, and have made very few attempts to address your obvious drug issues and offending behaviour. Although one can never give up hope of your eventual rehabilitation, there is little before me to suggest that there will be any real likelihood of that, although I do note the programs and promising remarks by Ms Cox in relation to your recent attendance for counselling. Ultimately, as I have said, your rehabilitation will be a matter for you. There is only one person who can change your lifestyle, you know that, and that is you.
52 In fixing an appropriate sentence, however, I must seek to maximise your chances of rehabilitation as there may be.
53 I was provided with material in support of Mr Cahill’s submission that I should find exceptional circumstances in relation to your mother’s health and I have read all those documents.
54 There was correspondence from Dr Megan Eddy dated 19 February 2013. Your mother had been a patient since 24 January 2013. She described your mother as suffering significant ongoing chronic pain which affected her lumbar spine following a car accident in 2006. Your mother also suffered with depression and anxiety. Over the years, her prescription opiate use had dramatically escalated. Your mother’s husband, Michael, was your mother’s carer. Since his death on 17 July 2012, your mother has not had support. As I understood from Mr Cahill, since that date she had been coping, albeit with difficulty, living on her own and without external supports.
55 There was further correspondence from Dr Eddy dated 14 March 2013 in which she referred to your mother commencing antidepressant medication due to her worsening depression and recent suicide attempt. No further details were provided. The medications your mother was taking were also listed in that correspondence.
56 There was also a further letter from Dr Eddy dated 23 March 2013 in which she suggested your mother would benefit from seeing a psychiatrist.
57 There was a letter from Dr Angelo Pagano, Clinical Psychologist, dated 6 March 2013. Your mother had been a patient of Dr Pagano for five years, having seen him in the context of her motor vehicle accident in 2006. Dr Pagano had not met you. Since the death of her husband, your mother had felt severe isolation in relation to family and social supports. Your mother had expressed hope you could provide support for her in the future.
58 When considering family hardship, the authorities are clear, and have addressed the need for exceptional circumstances.
59 In R v Panuccio[3] the President of the Victoria Court of Appeal stated:
"Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be 'exceptional' or 'extreme' before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned."
"Thus it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner's family unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating, but I refer to, amongst other cases, R v Matthews (1996) 130 FLR 320 at 233; R v Lynch and Ratcliffe (Court of Appeal, unreported, 18 April 1996), particularly the judgment of Charles JA at 5; R v Yaldiz (Court of Appeal, unreported, 4 December 1996), particularly the judgment of Hayne JA at 12; R v Yates (Court of Appeal, unreported, 17 February 1998); and R v Kim (Court of Appeal, unreported, 18 March 1998). It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances’ because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration."
[3]Unreported judgment of Victoria Court of Appeal 4 May 1998
60 In R v Holland[4], Batt JA stated regarding in that case the appellant's child,
"The criterion of exceptional hardship is extraordinarily difficult to satisfy as reference to the off-cited judgment of Wells J in R v Wirth [1976] 14 SASR 291."
[4][2002] 134 A Crim R 451
61 In that same decision, His Honour Eames JA stated:
"There is always a place for mercy in the sentencing process, but as Justice Callaway noted in Carmody [1998] 100 A Crim R 41, a sentencing judge or magistrate would be failing in his or her duty if proper sentencing considerations were overwhelmed by an emotional response to the hardship which a sentence would impose upon the family member."
62 And further:
"As the cases cited by the Court of Appeal Justice O'Bryan show, there remains, always, the overriding right of the courts to grant such leniency, where to do otherwise would offend the sense of mercy of the sentencing judge or magistrate. The circumstances in which an outcome would occur where the appeal for mercy relates to the impact of a sentence on family or others must, however, be 'highly exceptional' or 'clearly exceptional'."
63 In R v Nagul[5], a decision of the Victorian Court of Appeal, Court of Appeal Justice Chernov addressed hardship. His Honour noted that in almost every case, the imprisonment of an offender imposes some hardship on others, and typically creates havoc on family members.
[5][2007] VSCA 8
64 Citing Chief Justice Gleeson in DPP v Bulfin[6]:
"As Gleeson CJ explained, “[t]here is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person.” It has been said that exceptional circumstances might exist where, in effect, it would be “inhumane” to refuse to take the relevant hardship into account and, although hardship on an offender's children does not of itself constitute exceptional circumstances, it may be said to be present where, for example, the imprisonment of the offender leaves the children without parental care. Even in such cases, however, special circumstances will not readily be found, as is apparent from R v. Carmody and R v. Thai … Similarly, in Holland this Court considered that the hardship to the applicant's seven and a half year old daughter arising from her being left in the care of her grandparents while the applicant and the father served a sentence of imprisonment, did not require the sentencing judge to find that the circumstances were exceptional for sentencing purposes."
… Nevertheless, where hardship to the offender's family cannot be taken into account for sentencing purposes because of absence of exceptional circumstances, it may be taken into consideration in determining whether mercy should be extended to the offender, the exercise of mercy being part of the exercise of the sentencing discretion. As King CJ said in R v Osenkowski in an oft cited passage cautioning against the circumscription of the sentencing discretion by Crown appeals, “[t]here must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.” Its application may arise where, for example, hardship to the family or the family circumstances make the imprisonment of the offender more onerous than would otherwise be the case. But, as will be seen, in the appropriate case mercy may also be extended effectively to the family member who suffers significant hardship because of the offender's incarceration; or mercy may be extended where both factors are present, namely to the offender and family members. In R v Nguyen, for example, considerations that included the ill health of the offender's wife and his concern as to its effects on their children for whom she was increasingly incapable of caring, the deterioration in his own mental health and, generally, the greater burden imposed on the offender by his imprisonment motivated the Court to invoke considerations of mercy in reducing the non-parole period." [underlining added]
[6][1998] 1 VR 114
65 In R v Thai[7], the court considered that the circumstances relied upon in that case did not amount to exceptional circumstances but noted that mercy would be appropriate when sentencing.
[7][2005] VSCA 283
66 In R v Carmody[8], the court did not consider exceptional circumstances had been established, however, consistent with authorities referred to the ability of the court to show mercy in appropriate circumstances. The court noted that the law has “immemorially shown tenderness to the very young, very old and the sick."
[8][1998] 100 A Crim R 41
67 There was also correspondence from your mother, dated 10 August 2012, provided to me for your Court hearing. She described difficulties coping in your absence. She hoped since the passing of her husband you would assume responsibility. There is no doubt your mother hopes you will be able, one day, to support her, financially and in her general care. I hope when you are released you take on that responsibility, although note the caution to which I have previously referred expressed by Dr Cunningham when you are stressed and in a carer situation.
68 I note your mother has, albeit I have no doubt with great difficulty, been able to care for herself since your incarceration in July of 2012.
69 In my opinion the material before me does not amount to exceptional circumstances relevant to family hardship. I do, however, consider as part of your background in general sentencing principles, that being away from your mother, being aware she will have these difficulties coping on a day to day basis, will impact upon your ability to cope in prison and as such some mitigation of your sentence in that sense is appropriate. Your time in custody will be made more difficult as a result.
70 Mr Cahill initially submitted there was a period of time between 1999 and 2005 when you stayed out of trouble without drug offending or dishonesty offences. However, that submission seemed to me, upon further analysis with him, as less accurate than was suggested.
71 Mr Cahill conceded that the only appropriate disposition for your offending involved the imposition of a term of imprisonment, however urged that I fix a lower non-parole period which would allow you greater opportunity on parole to address rehabilitation in the community.
72 Ms Flynn, on behalf of the prosecution, agreed that I was able to take into account in mitigation of sentence the restatement of the Tsarias principle 5 in Verdins, although noted Dr Cunningham expressed concern should your condition be “left untreated”. As I have previously stated, it is hoped your condition can be treated and the relevant authorities will be given copies of the material before me.
73 Ms Flynn submitted that family hardship had not been established, although as part of the general sentencing principles being away from your mother, whom you know is ill, will weigh more heavily on you in custody than on another, and such she said was relevant when sentencing. As I already have said, I accept the latter
74 Ms Flynn submitted that the most serious of the offences, Charges 44, 45 and 46 of attempted armed robbery carried with them maximum penalties of 20 years' imprisonment. Your offending overall involved forty victims, involving loss of property and inconvenience to the majority of them. She submitted many of your victims could be described as “soft targets” including customers in shops and shop workers.
75 She further submitted your offending which occurred over a period of six weeks, was persistent and repeated. A similar modus operandi was used by you in your offending. Either you or Ms Orme would distract the owners of the property allowing the other to steal it.
76 Regarding the attempted armed robbery charges, Ms Flynn submitted it was a frightening experience for the victims.
77 In her submission, there was the need for general deterrence when sentencing you. I agree. Also the need to protect the community from you and denunciation of your behaviour. I agree in relation to both. Further, there was the need for specific deterrence, given your considerable prior criminal history. I agree. Ms Flynn submitted your prospects of rehabilitation were not promising. I have already addressed my concerns previously in this regard. She urged that there be some cumulation in relation to all of the charges. I agree. The prosecution range was placed before me.
78 Turning to the victims of your offending, in particular those in relation to the charges of attempted armed robbery. There was a Victim Impact Statement from Doris Nicholson. I have read that statement and accept she has suffered considerably in the manner described in that statement as a direct result of your actions. She said she felt disbelief about your offending and that it seemed unreal. She tries to stick to a routine but, despite that, is anxious. She has to keep her emotions to herself to not adversely affect her husband, for whom she cares due to his ill health.
79 She does not feel safe and secure even at home. When driving she locks her car doors as soon as she gets in the car. She dislikes slowing at traffic lights and double checks her doors are locked in case someone tries to get into her car.
80 In the statement of Theresa Stewart (depositions p.132), she described being in shock and not believing what was happening when you were at her car. As she drove away she was very scared, emotional and hyperventilating. She had difficulty sleeping, was emotional and scared. She constantly checked her car doors were locked.
81 In the statement of Helen Thomas in the depositions, she referred to her young granddaughter seeing that you had a knife and being very upset as a result, that she had to try and keep both her grandchildren calm during the incident. She was scared by how you looked, which she described as cold and determined.
82 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must take into account matters such as deterrence, especially general deterrence, which I consider to be of considerable importance in a case such as this.
83 Specific deterrence is also important when sentencing you. You have an extensive and relevant criminal history and this offending before me occurred over an extended period of time.
84 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your reoffending. I am very concerned about the need to protect members of the community from you in the future.
85 I am also called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
86 I turn then to parity. As I have stated, there is a co-offender involved in many of these offences, Jackie Orme. As such the principles in R v Taudevin[9] and Postiglione v R[10] apply.
[9][1996] 2 VR 402
[10](1997) 189 CLR 295
87 In my opinion, there are significant differences between you and Ms Orme, for the purposes of sentencing. There is a significant difference in your ages. Further, you have a more extensive criminal history than Ms Orme. In addition, you also face a number of additional charges and in particular I refer to the offences on 27 July of 2012 involving the four security officers and attempted armed robberies.
88 When sentencing you, given the significant number of charges, I must and do take into account the principles of totality and proportionality. I intend to sentence you as follows.
89 On Charge 1, convicted and sentenced to 3 months' imprisonment.
90 On Charge 2, convicted and sentenced to 3 months' imprisonment.
91 On Charge 3, convicted and sentenced to 3 months' imprisonment.
92 On Charge 4, convicted and sentenced to 3 months' imprisonment.
93 On Charge 5, which was the attempted theft, convicted and sentenced to 2 months' imprisonment.
94 On Charge 6, convicted and sentenced to 3 months' imprisonment.
95 On Charge 7, convicted and sentenced to 3 months' imprisonment.
96 On Charge 8, convicted and sentenced to 3 months' imprisonment.
97 On Charge 9, convicted and sentenced to 3 months' imprisonment.
98 On Charge 10, convicted and sentenced to 3 months' imprisonment.
99 On Charge 11, convicted and sentenced to 3 months' imprisonment.
100 On Charge 12, convicted and sentenced to 3 months' imprisonment.
101 On Charge 13, convicted and sentenced to 3 months' imprisonment.
102 On Charge 14, convicted and sentenced to 3 months' imprisonment.
103 On Charge 15, convicted and sentenced to 3 months' imprisonment.
104 On Charge 16, convicted and sentenced to 3 months' imprisonment.
105 On Charge 17, convicted and sentenced to 3 months' imprisonment.
106 On Charge 18, convicted and sentenced to 2 months' imprisonment.
107 On Charge 19, convicted and sentenced to 2 months' imprisonment.
108 On Charge 20, convicted and sentenced to 2 months' imprisonment.
109 On Charge 21, convicted and sentenced to 2 months' imprisonment.
110 On Charge 22, convicted and sentenced to 2 months' imprisonment.
111 On Charge 23, convicted and sentenced to 2 months' imprisonment.
112 On Charge 24, convicted and sentenced to 2 months' imprisonment.
113 On Charge 25, convicted and sentenced to 2 months' imprisonment.
114 On Charge 26, convicted and sentenced to 2 months' imprisonment.
115 On Charge 27, convicted and sentenced to 2 months' imprisonment.
116 On Charge 28, convicted and sentenced to 2 months' imprisonment.
117 On Charge 29, convicted and sentenced to 2 months' imprisonment.
118 On Charge 30, convicted and sentenced to 2 months' imprisonment.
119 On Charge 31, convicted and sentenced to 3 months' imprisonment.
120 On Charge 32, convicted and sentenced to 3 months' imprisonment.
121 On Charge 33, convicted and sentenced to 3 months' imprisonment.
122 On Charge 34, convicted and sentenced to 3 months' imprisonment.
123 On Charge 35, convicted and sentenced to 2 months' imprisonment.
124 On Charge 36, convicted and sentenced to 2 months' imprisonment.
125 On Charge 37, convicted and sentenced to 3 months' imprisonment.
126 On Charge 38, convicted and sentenced to 3 months' imprisonment.
127 On Charge 39, convicted and sentenced to 3 months' imprisonment.
128 On Charge 40, convicted and sentenced to 2 months' imprisonment.
129 On Charge 41, convicted and sentenced to 2 months' imprisonment.
130 On Charge 42, convicted and sentenced to 3 months' imprisonment.
131 On Charge 43, convicted and sentenced to 3 months' imprisonment.
132 On Charge 44, convicted and sentenced to 15 months' imprisonment.
133 On Charge 45, convicted and sentenced to 18 months' imprisonment.
134 On Charge 46, convicted and sentenced to 15 months' imprisonment.
135 On Charge 47, convicted and sentenced to 2 months' imprisonment.
136 On Charge 48, convicted and sentenced to 2 months' imprisonment.
137 On Charge 49, convicted and sentenced to 2 months' imprisonment.
138 On Charge 50, convicted and sentenced to 2 months' imprisonment.
139 On Charge 51, convicted and sentenced to 2 months' imprisonment.
140 On Charge 52, convicted and sentenced to 2 months' imprisonment.
141 On Charge 53, convicted and sentenced to 2 months' imprisonment.
142 On Summary Offence, Charge 24, convicted and sentenced to 1 month’s imprisonment.
143 On Summary Charge 26, convicted and sentenced to 1 month’s imprisonment.
144 On Summary Charge 28, convicted and sentenced to 1 months' imprisonment.
145 On Summary Charge 30, convicted and sentenced to 1 month’s imprisonment.
146 On Summary Charge 79, convicted and sentenced to 1 month’s imprisonment.
147 I order the following in relation to cumulation and concurrency.
148 Charge 45 is the base sentence.
149 I direct that 20 days of Charge 1 be served cumulatively upon Charge 45.
150 That 20 days of Charge 2 be served cumulatively upon Charge 45.
151 That 20 days of Charge 3 be served cumulatively upon Charge 45.
152 That 20 days of Charge 4 be served cumulatively upon Charge 45.
153 That 10 days of Charge 5 be served cumulatively upon Charge 45. The 10 days is because that is the attempted theft, just to make that clear.
154 That 20 days of Charge 6 be served cumulatively upon Charge 45.
155 That 20 days of Charge 7 be served cumulatively upon Charge 45.
156 That 20 days of Charge 8 be served cumulatively upon Charge 45.
157 That 20 days of Charge 9 be served cumulatively upon Charge 45.
158 That 20 days of Charge 10 be served cumulatively upon Charge 45.
159 That 20 days of Charge 11 be served cumulatively upon Charge 45.
160 That 20 days of Charge 12 be served cumulatively upon Charge 45.
161 That 20 days of Charge 13 be served cumulatively upon Charge 45.
162 That 20 days of Charge 14 be served cumulatively upon Charge 45.
163 That 20 days of Charge 15 be served cumulatively upon Charge 45.
164 That 20 days of Charge 16 be served cumulatively upon Charge 45.
165 That 20 days of Charge 17 be served cumulatively upon Charge 45.
166 That 10 days of Charge 18 be served cumulatively upon Charge 45.
167 That 10 days of Charge 19 be served cumulatively upon Charge 45.
168 That 10 days of Charge 20 be served cumulatively upon Charge 45.
169 That 10 days of Charge 21 be served cumulatively upon Charge 45.
170 That 10 days of Charge 22 be served cumulatively upon Charge 45.
171 That 10 days of Charge 23 be served cumulatively upon Charge 45.
172 That 10 days of Charge 24 be served cumulatively upon Charge 45.
173 That 10 days of Charge 25 be served cumulatively upon Charge 45.
174 That 10 days of Charge 26 be served cumulatively upon Charge 45.
175 That 10 days of Charge 27 be served cumulatively upon Charge 45.
176 That 10 days of Charge 28 be served cumulatively upon Charge 45.
177 That 10 days of Charge 29 be served cumulatively upon Charge 45.
178 That 10 days of Charge 30 be served cumulatively upon Charge 45.
179 That 20 days of Charge 31 be served cumulatively upon Charge 45.
180 That 20 days of Charge 32 be served cumulatively upon Charge 45.
181 That 20 days of Charge 33 be served cumulatively upon Charge 45.
182 That 20 days of Charge 34 be served cumulatively upon Charge 45.
183 That 10 days of Charge 35 be served cumulatively upon Charge 45.
184 That 10 days of Charge 36 be served cumulatively upon Charge 45.
185 That 20 days of Charge 37 be served cumulatively upon Charge 45.
186 That 20 days of Charge 38 be served cumulatively upon Charge 45.
187 That 20 days of Charge 39 be served cumulatively upon Charge 45.
188 That 10 days of Charge 40 be served cumulatively upon Charge 45.
189 That 10 days of Charge 41 be served cumulatively upon Charge 45.
190 That 20 days of Charge 42 be served cumulatively upon Charge 45.
191 That 20 days of Charge 43 be served cumulatively upon Charge 45.
192 That 4 months of Charge 44 be served cumulatively upon Charge 45.
193 That 4 months of Charge 46 be served cumulatively upon Charge 45.
194 That 10 days of Charge 47 be served cumulatively upon Charge 45.
195 That 10 days of Charge 48 be served cumulatively upon Charge 45.
196 That 10 days of Charge 49 be served cumulatively upon Charge 45.
197 That 10 days of Charge 50 be served cumulatively upon Charge 45.
198 That 10 days of Charge 51 be served cumulatively upon Charge 45.
199 That 10 days of Charge 52 be served cumulatively upon Charge 45.
200 That 10 days of Charge 53 be served cumulatively upon Charge 45.
201 That 7 days of Summary Charge 24 be served cumulatively upon Charge 45.
202 That 7 days of Summary Charge 26 be served cumulatively upon Charge 45.
203 That 7 days of Summary Charge 28 be served cumulatively upon Charge 45.
204 That 7 days of Summary Charge 30 be served cumulatively upon Charge 45.
205 That 7 days of Summary Charge 79 be served cumulatively upon Charge 45.
206 I need to explain the sentence more fully.
207 For clarity, each order in relation to cumulation is cumulative upon each other and upon the base sentence.
208 That results in a total effective sentence of 26 months (Charges 44, 45 and 46) plus 785 days. The 785 days equals two years at 365 days per year, being a total of 730 days, and 55 days remaining over and above that. That results therefore in a total of 26 months plus 24 months plus 55 days (1 month and 25 days). That results in a total effective sentence of 4 years, 3 months and 25 days.
209 Before I move on, do both counsel understand those figures?
210 COUNSEL: Yes, Your Honour.
211 HER HONOUR: Are you sure? As I say, I will not be entering these into the records of the court until 4 o'clock today. If there is any problem with the mathematics, and I expect you to go away and look at it, then I want to be brought back to court today while Mr Berry is still here. Now we move on.
212 In sentencing you on Appeal No. AP-13-0400, I convict and sentence you to 1 months’ imprisonment. I direct that 7 days of that sentence be served cumulatively upon the State sentence imposed today on both the Indictment C12667783 and the five summary charges to which I have previously referred. I confirm the forfeiture order made by the Magistrate on 20 February 2013.
213 I direct that you serve a period of 2 years and 6 months in custody before you are eligible for parole. Given the head sentence to which I have just referred, that is in my opinion a longer period on parole consistent with Mr Cahill's submission.
214 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, I would have imposed a term of imprisonment of 7 years and I would have set a non-parole period of 5 years.
215 Pursuant to s.18(4) Sentencing Act 1991, I declare you have served 287 days in custody up to and including yesterday, which was 9 May 2013, by way of pre-sentence detention and I direct that this be entered into the records of the Court and I will ask counsel to confirm that in just a moment.
216 Pursuant to s.89(4) Sentencing Act 1991, any licences you hold are cancelled and your are disqualified from obtaining a licence for a period of 2 years and 6 months from today’s date.
217 When imposing the period of cancellation and disqualification of your licence, I have taken into account the decision of R v Lefebure[11] and the importance of rehabilitation and your ability to drive relevant to that.
[11](2000) 31 MVR 131
218 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. This was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample. I do that on the basis of your prior criminal history and the seriousness of these offences. I have to advise you the authorities may use reasonable force in order to obtain that sample.
219 The prosecution also sought a Disposal Order in relation to a number of items, the subject of the various charges before me. This was consented to by counsel on your behalf and I make the order in the terms sought.
220 Is there anything at all, any help required with the figures from anyone at this stage?
221 MR CINI: No, Your Honour.
222 MS MAXWELL: Can I just clarify we're calculating on a 30 day month?
223 HER HONOUR: I was for the purpose of the 55 days.
224 MS MAXWELL: All right, thank you, Your Honour. So, for example, if we look at Charge 1, three months' imprisonment. So is that is calculated at 90 days?
225 HER HONOUR: Yes it is, it is three months. But when you are doing it in months it is much easier than doing it in days. The days have to be converted in some way.
226 MS MAXWELL: All right, I just - - -
227 HER HONOUR: And that is why a year was chosen, 365, because it is my understanding that the prison in fact works on the actual month that it happens to be at the time; could be 31, could be 30 depending on January and February, that sort of thing. So the year was the 365 days, does that make sense?
228 MS MAXWELL: Yes, Your Honour.
229 HER HONOUR: Very well. It may be ultimately that he serves a day less depending on where that month falls in the year. But for the purposes of the sentence that is the sentence. It would be an administrative change if it was.
230 MS MAXWELL: Yes, thank you, Your Honour.
231 HER HONOUR: Very well, so the total effective sentence, you understand that?
232 MR CINI: Yes, Your Honour.
233 HER HONOUR: Have I got the PSD right up to and including yesterday?
234 MR CINI: That 287 - - -
235 MS MAXWELL: Yes, Your Honour.
236 MR CINI: I had that up to including today, the 287.
237 HER HONOUR: It is yesterday I think it is. Yesterday, you can have an extra day. That would have been 286 on your calculations; we will make it 287.
238 MR CINI: Yes, Your Honour, thank you.
239 HER HONOUR: If it is an extra day you can have an extra day, all right? That is credited to you, not extra on top. I am talking about taken off. All right, anything else?
240 MS MAXWELL: No, Your Honour.
241 HER HONOUR: Very well, if you go away and have a look at those figures, add them all up, ring my associate if there are any problems with it and if there are the matter can be brought back on. In the meantime we will work on the basis that the five summary charges are those that appeared on the sheet that were read to him, that is 2, 4, 6, 8 and 59 and if those numbers by any chance have changed in the recording of that it is the same charges that I have sentenced upon.
242 COUNSEL: Yes, Your Honour.
243 HER HONOUR: Very well, I think that is about it. I will just sign these. It is a saliva sample, by the way, if I did not mention that before.
244 As I say, Mr Berry unfortunately will need to remain until a bit later today we will notify you if he needs to come back today. To save Mr Berry sitting all day if he is not required, I expect both parties to go away, look at those figures and contact my associate by 12 noon today. If there is a problem we will arrange a time to come back, if there is not a problem from either side I will notify or my associate will notify security which means he can go back anytime from about 1 o'clock today if that suits. Ms Maxwell?
245 MS MAXWELL: Yes, Your Honour.
246 HER HONOUR: So get onto it please because I do not want Mr Berry sitting around all day for nothing if he does not have to, all right?
247 PRISON OFFICER: Excuse me, Your Honour?
248 HER HONOUR: Yes.
249 PRISON OFFICER: Is he to remain downstairs until you or your - - -
250 HER HONOUR: We will contact you as soon as we can after 12 to let you know whether he is going to be required back in court which would only occur if there is an issue between the barristers about the figures or something else, otherwise he can then leave whenever you want him to go, if everything is all right. Does that sort of make sense? So we will try and keep you as informed as we can and of course you can feel free to ring my associate at any time to check on progress if you wish.
251 PRISON OFFICER: Yes, Your Honour.
252 HER HONOUR: Very well, anything else, no?
253 MS MAXWELL: No, Your Honour.
254 HER HONOUR: Thanks, Mr Berry, if you could go, thanks. Very well, thanks.
(Short adjournment.)
255 HER HONOUR: Thanks, Mr Cini and Ms Maxwell. Just very briefly I just wanted you to have a look at some documents so that your client in particular understands and you can explain it to him. This is about the summary charge numbers. If you have a look again - I will hand this down to you, this was the sheet that he was arraigned on, the one you looked at before and you can see the charge numbers are - have you got that now?
256 MR CINI: Yes, Your Honour.
257 HER HONOUR: I know you do not have it - or you might have it, it is 4, 6, 8 - just have a look. Can you see 4?
258 MR CINI: 4, yes.
259 HER HONOUR: 6?
260 MR CINI: Yes.
261 HER HONOUR: 8?
262 MR CINI: Yes.
263 HER HONOUR: 10?
264 MR CINI: Yes.
265 HER HONOUR: And 59.
266 MR CINI: 59, yes.
267 HER HONOUR: Yes, very well. They were the five that were read out to him and he pleaded guilty to them.
268 MR CINI: Yes.
269 HER HONOUR: You might recall this morning I said that they had been allocated different numbers. What I am handing to you is the whole list of the charges that came up from the Magistrates Court; just the yellow pages - if you look at these it will show you what I mean. You have it yourself on file I gather, Ms Maxwell?
270 MS MAXWELL: Yes, Your Honour.
271 HER HONOUR: If you just have a look at it, so you can explain to your client he is not being double sentenced or anything like that.
272 MR CINI: Yes.
273 HER HONOUR: You can see there at the top - the top there where the yellow tab is there is Charge 4 and that Charge 4 has been crossed out, it could be 24 written next to it.
274 MR CINI: Yes, Your Honour.
275 HER HONOUR: But if you just read that charge to yourself it involves unlawful assault with - can you just confirm that is exactly the same as Charge 4 that was on that sheet that he was arraigned on? Just satisfy yourself.
276 MR CINI: Yes, Your Honour.
277 HER HONOUR: Very well. Over to the next yellow tab.
278 MR CINI: Yes.
279 HER HONOUR: That is Charge 6 which has been - there is 26 written next to it. Can you see that is exactly what he was arraigned on but it was Charge 6?
280 MR CINI: Yes, Your Honour.
281 HER HONOUR: Next yellow tab is Charge 10. Exactly the same one that he was arraigned on.
282 MR CINI: No, Your Honour.
283 HER HONOUR: Which one? Are you sure? Better have a look at it.
284 MR CINI: Different.
285 MS MAXWELL: It was Charge 10 on the notice that was handed up and Charge 30 on the documents that came up from the Magistrates Court.
286 HER HONOUR: Have you got it?
287 MR CINI: Yes (indistinct).
288 HER HONOUR: Did I - had it in the wrong spot, did I?
289 MR CINI: Yes.
290 HER HONOUR: Very well, you have found that?
291 MR CINI: Yes, Your Honour.
292 HER HONOUR: So basically I want you to understand there is nothing extra being added in all of this and they will be recorded as per the numbers he was arraigned on.
293 MR CINI: Yes, Your Honour.
294 HER HONOUR: Very well, make that clear, so it will be recorded as I read out Summary Charge 4, 6, 8, 10 and 59. All right?
295 MR CINI: As Your Honour pleases.
296 HER HONOUR: So there was some change in the numbers when it came from the Magistrates Court. We have gone back to square one. It is very important your client understands they are not new charges, they are the exact same ones he pleaded guilty before me however many days ago it was and I just wanted you to be clear on that. Before I let Mr Berry go, if that is what happens, I just want to confirm everyone else was happy - the figures all added up?
297 COUNSEL: No, Your Honour.
298 HER HONOUR: No issue with the figures? All right. No issue with PSD? No?
299 MR CINI: No, Your Honour.
300 HER HONOUR: Perfect. Mr Cini, did you have anything you wanted to say about what we have just been discussing or you are now clear on it?
301 MR CINI: No, Your Honour, everything is very clear.
302 HER HONOUR: Very well. Thanks for that.
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