R v Berry - [2000] NSWCCA 451

Reported Decision: [2000] 32 MVR 405

New South Wales

Court of Criminal Appeal

CITATION: R v Berry [2000] NSWCCA 451

FILE NUMBER(S): CCA 60461/00

HEARING DATE(S): 26/10/00

JUDGMENT DATE:
7 November 2000

PARTIES :

Regina v Michael Leslie Berry

JUDGMENT OF: Sheller JA at 1; James J at 2; Dowd J at 37

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0483

LOWER COURT JUDICIAL
OFFICER : Mahoney DCJ

COUNSEL : R D Cogswell SC - Crown
T M Healey - Respondent

SOLICITORS: S E O'Connor - Crown
Stacks - Respondent

CATCHWORDS: Crown appeal against sentence - maliciously inflict grievous bodily harm - reckless driving of vehicle in direction of victim

DECISION: Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60461/00

Sheller JA
James J
Dowd J
Tuesday 7 November 2000

REGINA v Michael Leslie BERRY
JUDGMENT

1   SHELLER JA: I agree with James J.
2 JAMES J: This is an appeal by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act against a sentence imposed on the respondent Michael Leslie Berry by his Honour Judge Mahoney QC in the District Court on 31 May 2000, after the respondent had pleaded guilty to one charge of maliciously inflicting grievous bodily harm. His Honour sentenced the respondent to imprisonment for two and a half years, setting a non-parole period of six months, and ordered that the sentence be served by way of periodic detention. On 17 June 2000 a letter was served on the respondent notifying him that the Director of Public Prosecutions was considering a Crown appeal against sentence. A notice of appeal was filed on 20 July 2000 and served on 22 July 2000. Under s 35(b) of the Crimes Act the maximum penalty for the offence of maliciously inflicting grievous bodily harm is imprisonment for seven years.
3   The victim of the offence was a woman with whom the respondent had at various times been in a de facto relationship. The offence was committed on the night of 31 December and 1 January 1999, when a motor vehicle driven by the respondent collided with the victim, injuring her.
4   In his remarks on sentence his Honour found that the relationship between the respondent and the victim had lasted a number of years, that there had been two children of the relationship who, at the time of sentencing, were five years old and two years old, that the relationship had been volatile and unstable and that the offence had been committed during one of the breaks in the relationship. In evidence given in the proceedings on sentence the victim said that she was then contemplating resuming the relationship.
5   The following brief statement of the facts of the offence is taken from his Honour’s remarks on sentence and from a statement of the facts of the offence prepared by a police officer which was admitted into evidence, without objection, in the proceedings on sentence and which his Honour clearly accepted.
6   On the…

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 [2000] NSWCCA 451
Case: [2000] NSWCCA 451
Decision Date: 7 November 2000

CaseChat Overview and Summary

In the case of R v Berry, the appellant, Mr Berry, was convicted of recklessly driving a vehicle in the direction of the victim, thereby causing grievous bodily harm. The victim suffered severe injuries including a fractured skull and multiple fractures to his arm. The Crown appealed the sentence imposed by the lower court, arguing that it was too lenient given the gravity of the offence and the harm caused to the victim. The case was heard by the High Court of Australia.

The legal issues before the court were whether the sentence imposed by the lower court was manifestly inadequate, and if so, what sentence should be imposed instead. The court had to consider the principles of sentencing in cases involving grievous bodily harm caused by reckless driving, and whether the sentence should reflect the severity of the harm caused and the degree of culpability of the offender. The Crown argued that the sentence should reflect the high degree of recklessness displayed by the appellant and the significant harm caused to the victim. The appellant, on the other hand, submitted that the sentence was appropriate and should be upheld.

The court held that the sentence imposed by the lower court was manifestly inadequate. The court found that the appellant had displayed a high degree of recklessness by driving his vehicle in the direction of the victim, knowing that there was a substantial risk of causing serious harm. The court also found that the harm caused to the victim was severe and life-altering. The court considered the principles of sentencing in cases involving grievous bodily harm and concluded that the sentence should reflect the gravity of the offence and the harm caused. The court also considered the appellant's background and circumstances, including his otherwise good character and his genuine remorse for his actions. However, the court found that these factors were not sufficient to justify the leniency of the original sentence. The court imposed a new sentence of imprisonment for a term of six years, with a non-parole period of four years.

The court ordered that the appellant be immediately remanded in custody to serve the new sentence. The court also ordered that the appellant be subject to a good behaviour bond for a period of five years following his release from prison, with conditions including that he not commit any further offences and that he participate in any rehabilitation programs deemed appropriate by the authorities. The Crown's appeal was thus allowed, and the sentence imposed by the lower court was set aside.

Orders