R v Berry - [2007] VSCA 60

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 260 of 2007

THE QUEEN
	v
MICHAEL STEPHEN BERRY

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JUDGES:	VINCENT and NETTLE JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2007
DATE OF JUDGMENT:	21 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 60

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CRIMINAL LAW – Sentence –Defrauding the Commonwealth contrary to s 29D Crimes Act 1914 and ss 134.1(1) of the Criminal Code (C’th) – Gambling habit as cause of offending – Offending ceased when gambling habit broken - Good prospects of rehabilitation and employment – No relevant prior convictions – Sentence of 3 years’ imprisonment with 2 years’ immediate custody manifestly excessive – Sentencing statistics relied upon - Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R E Carlin	Solicitor to Commonwealth Director of Public Prosecutions
For the Appellant	Mr M J Croucher	Clarebrough Pica

VINCENT JA:

I will invite Habersberger AJA to deliver the first judgment.

HABERSBERGER AJA:

On 15 August 2006, the appellant pleaded guilty before the County Court at Melbourne to two counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) ("the Act") and one count of dishonestly obtaining property belonging to Centrelink, a Commonwealth entity, by deception contrary to s 134.1(1) of the Criminal Code (Cth). Count 1 related to the appellant defrauding the Commonwealth by receiving, between 19 July 1993 and 15 June 1995, social security benefits totalling $6,632.45 in the name of Michael Steven Berry to which he knew he was not entitled when he was, at the same time, in receipt of social security benefits in the name of Michael Steven Hill. Count 2 related to the appellant receiving, between 6 February 1996 and 23 May 2001, social security benefits totalling $39,502.57 in the name of Michael Steven Berry to which he knew he was not entitled when he was, at the same time, in receipt of social security benefits in the name of Michael Steven Hill. Count 3 related to the appellant, between 24 May and 17 July 2002, dishonestly obtaining property belonging to Centrelink, a Commonwealth entity, by deception by representing to Centrelink that he was not known by any other name and by failing to advise Centrelink that he was in receipt of payments of Newstart Allowance in the name of Michael Steven Hill, with the intention of permanently depriving Centrelink of that property. The amount involved in this count was $10,038.78 (not $10,038.57 as stated by the judge).

After hearing a plea in mitigation of penalty the learned judge, on 18 August 2006, sentenced the appellant as follows:

Count 1― Convicted and sentenced to imprisonment for one year and six months;

Count 2 ― Convicted and sentenced to imprisonment for three years;
Count 3― Convicted and sentenced to imprisonment for one year and six months.

His Honour ordered that all sentences were to commence on 18 August 2006, resulting in a total effective sentence of imprisonment for three years. It was declared that 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 [2007] VSCA 60
Case: [2007] VSCA 60
Decision Date: 21 March 2007

CaseChat Overview and Summary

The appellant, Berry, appealed against a sentence of imprisonment imposed by the Federal Circuit Court for defrauding the Commonwealth. The primary judge sentenced Berry to three years’ imprisonment, with two years’ immediate custody, for defrauding the Commonwealth contrary to section 29D of the Crimes Act 1914 (Cth) and sections 134.1(1) of the Criminal Code (Cth). Berry's appeal focused on the severity of the sentence, arguing it was manifestly excessive in the circumstances.

The central legal issue in the appeal was whether the sentence imposed by the primary judge was manifestly excessive. The appeal court considered several factors relevant to the sentencing process, including the nature and circumstances of the offence, the culpability of the offender, and the prospects for rehabilitation and employment. Berry's counsel argued that his client's offending was driven by a gambling habit that had ceased, and that he had good prospects of rehabilitation and employment. The appeal court also considered that Berry had no prior convictions relevant to the offence.

In reviewing the sentence, the appeal court highlighted that Berry's offending had been driven by a gambling habit, which had ceased by the time of sentencing. The court noted that Berry had good prospects for rehabilitation and employment, and had no prior convictions. The appeal court found that the sentence of three years’ imprisonment with two years’ immediate custody was manifestly excessive, particularly in light of sentencing statistics and the unique circumstances of Berry's case. The appeal was allowed, and the sentence was reduced.

Orders