R v Berriman

[2021] NSWDC 771

District Court

New South Wales

Medium Neutral Citation:

R v Berriman [2021] NSWDC 771

Hearing dates:

3 September 2021

Date of orders:

6 December 2021

Decision date:

06 December 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentence imposed one of an aggregate sentence of 8 years and 6 months imprisonment with an aggregate non-parole period of 5 years and 6 months. The sentence commences on 11 April 2019 and expires on 10 October 2027. The non-parole period expires on 10 October 2024.

Make an Apprehended Domestic Violence Order under s39 of the Crimes (Domestic and Personal Violence) Act which commences today 6 December 2021 and expires on 9 October 2029.

Catchwords:

CRIME– Sexual offences – Aggravated sexual assault – Threat to inflict actual bodily harm with offensive weapon or instrument

SENTENCING — Aggravating factors — Use of weapon

SENTENCING – Subjective considerations on sentence – Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW), s 86(2)(b)

Crimes Act 1900 (NSW), s 37(1)

Crimes Act 1900 (NSW), s 61KC(a)

Crimes Act 1900 (NSW), s 61J(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:

DPP v De La Rosa (2010) 79 NSWLR 1

Hall v R [2021] NSWCCA 220

Lawson v R [2018] WSWCCA 215

Moiler v R [2021] NSWCCA 73

Category:

Sentence

Parties:

Mitchell Berriman (Offender)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Crown: Ms Steedman
Defence: Mr Park

File Number(s):

2019/00113994

Publication restriction:

Statutory non-publication order regarding the identity of the complainant

SENTENCE

Introduction

1. Earlier this year the offender stood trial before me, sitting without a jury, on an indictment containing six counts alleging offences against the victim RK. On 3 September 2021 I returned verdicts of guilty on five of those counts, and not guilty on one of the counts, being count 2. The offender stands to be sentenced on the five counts that I found him guilty of, the particulars of which are as follows.

2. Count 1; the offender on 11 April 2019 at Miller detained RK without her consent with the intention of obtaining an advantage, namely a psychological advantage, and at the time of the detaining, actual bodily harm was occasioned to RK. That is an offence under s 86(2)(b) of the Crimes Act and has a maximum penalty of 20 years imprisonment and there is no applicable standard non-parole period.

3. Count 3; the offender on 11 April 2019 at Miller intentionally choked RK so as to render her incapable of resistance, and was reckless as to rendering her incapable of resistance. That is an offence under s 37(1) of the Crimes Act and has a maximum penalty of ten years imprisonment, and there is no applicable standard non-parole period.

4. Count 4; the offender on 11 April 2019 at Miller intentionally sexually touched RK without consent, knowing she was not consenting. That is an offence under s 61KC(a) of the Crimes Act. It has a maximum penalty of five years imprisonment and there is no applicable standard non-parole period.

5. Count 5; the offender on…