Dylan Reece Berry v The King - [2024] VSCA 274

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0139

DYLAN REECE BERRY	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2024
DATE OF JUDGMENT:	19 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 274
JUDGMENT APPEALED FROM:	DPP v Berry [2023] VCC 1170

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CRIMINAL LAW – Appeal – Sentence – Rape – Whether sentencing judge’s factual findings open on the evidence – Appeal dismissed.

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Counsel
Applicant:		Mr PJ Smallwood and Mr JJ Bourke
Respondent:		Ms S Lenthall
Solicitors
Applicant:	Dribbin & Brown Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

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PRIEST JA

BEACH JA:

Introduction

A jury in the County Court found the appellant, now aged 28 years, guilty of one charge of digital-vaginal rape on 25 January 2023.
Following a plea conducted on 26 May 2023, the judge sentenced the appellant on 10 July 2023 to five years’ imprisonment, with a non-parole period of three years.
Pursuant to leave granted by a judge of this Court on 21 November 2023, the appellant appeals against the sentence on a ground that contends that the sentencing judge erred
by sentencing the [appellant] on the factual basis that the victim had communicated the words ‘no’ and ‘stop’ to him.

In our view, for the reasons that follow, the appeal must be dismissed.

The evidence at trial

Evidence in the appellant’s trial established that, during the evening of 22 December 2017, the appellant’s younger brother held his eighteenth birthday party at an address in Pakenham. The appellant, then aged 21 years, and the complainant, ‘CH’, aged 17 years, were both guests at the party (although neither knew the other). Both drank alcohol throughout the evening.
During the night, CH — who other party-goers observed to be very drunk, swaying and unable to stand — was guided by friends to a couch in the living room of the premises to ‘sleep off’ the alcohol. She there drifted in and out of sleep. At some point while CH was in that state, the appellant inserted his finger (or fingers) into her vagina.
The next day, on 23 December 2017, police arrested and interviewed the appellant. In the course of a record of interview, the appellant admitted to having digitally penetrated CH, but claimed to be of the belief that she had consented to that activity.
In a VARE[1] interview conducted with CH by police on 28 December 2017, which effectively became her evidence-in-chief at the trial,[2] the following passages are to be found:[3]
[1]Video and Audio Recorded Evidence.
[2]See Criminal Procedure Act 2009, s 367.
[3]Emphasis added.
Q24And then what happened after that?
AAnd then I got that drunk that I couldn’t really walk so I was – like, all my friends were – like, there was two groups, like, the family group and the friend group. And I was with the – like, my friends and stuff and I was sitting on their laps and –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dylan Reece Berry v The King

Details

AGLC: Dylan Reece Berry v The King [2024] VSCA 274
Case: [2024] VSCA 274
Decision Date: 19 November 2024

CaseChat Overview and Summary

Dylan Reece Berry has appealed against his sentence for the offence of rape, with the appeal being heard by the court. The respondent to the appeal is the Crown, represented by the King. The crux of the appeal lies in the contention that the sentencing judge erred in making certain factual findings which influenced the sentence imposed.

The primary legal issue before the court was whether the sentencing judge's findings of fact were open to be made on the evidence presented. Berry argued that the judge had misapplied the evidence in reaching conclusions that led to an excessive sentence. The court was tasked with determining the correctness of these factual findings and whether they were supported by the evidence.

The court carefully examined the evidence presented during the trial and the sentencing hearing. It found that the sentencing judge's findings were indeed open to be made on the evidence, and there was no error in the process of making those findings. The court held that the judge had correctly assessed the evidence and that the sentence imposed was appropriate given the circumstances of the case. Consequently, the appeal was dismissed, and the original sentence stood.

Orders