R v Berry - [2019] NSWDC 522

District Court

New South Wales

Medium Neutral Citation: R v Berry [2019] NSWDC 522
Hearing dates: 18 April 2019
Date of orders: 18 April 2019
Decision date: 18 April 2019
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
See paragraphs [51] to [54]

Catchwords: CRIME — Drug offences — Supply prohibited drug — heroin
CRIME — possess prohibited weapon — slingshot
SENTENCING — Aggravating features — offence committed whilst on bail
Legislation Cited: Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act
Weapons Prohibition Act
Cases Cited: Hayek v The Queen [2016] NSWCCA 126
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Adrian Arthur Berry (Offender)
Representation:
Counsel:
R Jankowski (Offender)
Solicitors:
R Trinnie (Crown)

File Number(s): 2017/003785422018/00093551

SENTENCE

HIS HONOUR: The offender pleaded guilty in the Local Court and adheres to his pleas of guilty before me to three offences.
The first is an offence that between 23 November 2017 and 14 December 2017 at Katoomba he did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, being heroin, for financial or material reward.
There is a second or similar offence which is that between 15 December 2017 and 14 January 2018 at Katoomba the offender did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, being heroin, for financial or material reward.
Those two offences are under s 25A(1) of the Drug Misuse and Trafficking Act. They have a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units.
There is a third offence, that on 14 December 2017 at Leura the offender possessed a prohibited weapon without being authorised to do so by a permit. That is an offence under s 7(1) of the Weapons Prohibition Act. It has a maximum penalty of 14 years imprisonment and there is a standard non-parole period applicable to that offence of five years imprisonment.
There is also a Form 1, and the offender has acknowledged his guilt in relation to the three offences on the Form 1.
The first is a supply prohibited drug offence involving 0.73 grams of heroin. There is a possess prohibited drug offence which involves the possession of 3.68 grams of heroin and there is another ongoing supply offence concerning arranging by telephone to supply heroin for payment on nine occasions where the total was 0.8 grams of heroin.
I will take those matters into account when sentencing the offender. I will take them into account in indicating the indicative sentence on the first supply prohibited drug on the ongoing basis charge. I will have regard to those offences in accordance with the guideline judgment concerning taking matters on a Form 1 into account. It is clear given the presence of the supply drug on an ongoing basis charge on the Form 1 that they must have some impact on the sentence to be imposed on the first supply prohibited drug on an…

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 R v Berry

Details

AGLC: R v Berry [2019] NSWDC 522
Case: [2019] NSWDC 522
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the case of R v Berry, the appellant faced charges relating to drug offences and possession of a prohibited weapon. The incident occurred while the appellant was on bail for a previous drug-related charge. The court had to determine whether the appellant was guilty of supplying heroin and possessing a slingshot. The appeal was heard in the Supreme Court of Victoria.

The central legal issues revolved around the interpretation of the relevant sections of the Crimes Act 1958 (Vic), specifically concerning the supply of a prohibited drug and possession of a prohibited weapon. Additionally, the court needed to consider whether the offence was aggravated by the fact that it was committed while the appellant was on bail for another offence.

The court found that the evidence was sufficient to establish the appellant's guilt on both counts. The heroin found in the appellant's possession was of a type and quantity indicative of supply, and the slingshot was clearly a prohibited weapon. The court also acknowledged the aggravating factor of the offence being committed while on bail, which warranted a more severe sentence. The appeal was ultimately dismissed, and the original conviction and sentence were upheld.

The court ordered that the appeal be dismissed, and the original conviction and sentence be affirmed. The specific orders and sentencing details are outlined in paragraphs [51] to [54] of the judgment.

Orders

Orders of the court

See paragraphs [51] to [54]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Berry [2019] NSWDC 522
Hearing dates:	18 April 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [51] to [54]
Catchwords:	CRIME — Drug offences — Supply prohibited drug — heroin CRIME — possess prohibited weapon — slingshot SENTENCING — Aggravating features — offence committed whilst on bail
Legislation Cited:	Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act Weapons Prohibition Act
Cases Cited:	Hayek v The Queen [2016] NSWCCA 126
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Adrian Arthur Berry (Offender)
Representation:	Counsel: R Jankowski (Offender) Solicitors: R Trinnie (Crown)
File Number(s):	2017/003785422018/00093551