R v Berry
[2013] VSC 735
•19 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL JURISDICTION
S CR 2012 0172
| THE QUEEN | |
| v | |
| BRETT ALLAN BERRY | |
| THE QUEEN | S CR 2012 0173 |
| v | |
| CRAIG DAVID DYSON | |
| THE QUEEN | S CR 2012 0174 |
| v | |
| SCOTT WEBB |
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| JUDGE: | MAXWELL P |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 December 2013 |
| DATE OF SENTENCE: | 19 December 2013 |
| CASE MAY BE CITED AS: | R v Berry |
| MEDIUM NEUTRAL CITATION: | [2013] VSC 735 |
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CRIMINAL LAW – Sentence – Intentionally cause serious injury – Attack in company – Low level injuries – Plea of guilty – Remorse – Good prospects of rehabilitation – Three years’ imprisonment with non-parole period of two years.
CRIMINAL LAW – Sentence – Recklessly cause serious injury – Co-offenders – Attack in company – Low level injuries – Plea of guilty – Remorse – Good prospects of rehabilitation – Differences in role – Breach of parole – Totality – Two years’ imprisonment with non-parole period of 15 months (Dyson) – 18 months’ imprisonment with non-parole period of 12 months (Webb).
CRIMINAL LAW – Sentence – Sentencing range – Seriousness of offending – Relevant factors – Crown submission on range – Miscategorisation of seriousness of offences – Insufficient consideration of current sentencing practices for relevant category of seriousness – Nash v The Queen [2013] VSCA 172 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused Berry | Mr D Hallowes | David Barrese & Associates |
| For the Accused Dyson | Mr W Toohey | Pica Criminal Lawyers |
| For the Accused Webb | Mr D Gibson | Victoria Legal Aid |
HIS HONOUR:
On 29 February 2012, Sloane Spellman was attacked and bashed in broad daylight over an alleged unpaid debt. He suffered serious injury. The principal attacker was Brett Berry, who has pleaded guilty to one count of intentionally causing serious injury (‘ICSI’). Mr Berry was assisted by the two other prisoners, Craig Dyson and Scott Webb, each of whom has pleaded guilty to one count of recklessly causing serious injury (‘RCSI’).
The circumstances of the offending are set out in the prosecution opening, as follows. Sloane Spellman was 30 years old at the time of this incident. He was born in America and migrated to Australia in 2001. He alternated between living in Queensland and Melbourne. When living in Melbourne, he usually lived in Fitzroy. In about mid 2010, he moved back to Fitzroy from Queensland. Sloane Spellman had known Brett Berry for a few years prior to the incident. They would occasionally socialise together and it would appear that, at some time before the date of this attack, Mr Spellman purchased a watch from Mr Berry. As a result of that transaction, Mr Berry believed that Mr Spellman owed him some money. Mr Spellman disputed the claim. Mr Berry had told some of his friends that he wanted to confront Mr Spellman about the disputed claim.
Craig Dyson was a friend of Mr Berry’s. He knew that Mr Berry wanted to confront Mr Spellman about the debt. On 29 February, just after 6 pm, Mr Dyson saw Mr Spellman in Greeves Street, Fitzroy. He telephoned Mr Berry and told him about the sighting. At the time Mr Berry received the telephone call, he was with Scott Webb in Collingwood. As a result of the call from Mr Dyson, Mr Berry and Mr Webb immediately travelled to Fitzroy to meet up with Mr Dyson.
That afternoon, Mr Spellman was at Felice’s Café, which is a small bar in Greeves Street, Fitzroy. He had been a regular at that bar for about 12 months and was friendly with the owner and some regular patrons of the bar. Having been in the bar, he went out onto the street where he was on his mobile phone. He was talking to his ex-girlfriend, Madeleine Horey, with whom he was still friendly and to whom he spoke regularly on the telephone. As he was talking to Ms Horey, he walked west along Greeves Street and turned left into Hargreaves Street. As he did so, he walked past the Hell of the North restaurant, which is on the corner of Greeves and Hargreaves Streets.
At that time the owner of that restaurant, Mark Grixti, was out the front of his restaurant making business telephone calls on his mobile phone. Mr Spellman walked past Mr Grixti and turned down Hargreaves Street. He walked towards an alcove that led to the rear door of a shop that fronted Smith Street. Mr Spellman was still on his mobile phone and walked into the alcove to continue his call. By the time Mr Spellman walked down Hargreaves Street, Berry, Dyson and Webb had met up. They also walked down Greeves Street, turned into Hargreaves Street and walked straight to the alcove where Mr Spellman was still talking on his phone. Mr Berry then immediately started to punch Mr Spellman, before pulling him out from the alcove. At that stage, Mr Spellman was on the ground where he was punched and kicked. Mr Berry was doing most of the punching and kicking, with Mr Dyson helping him by grabbing and restraining Mr Spellman.
Mr Spellman was on the ground with his hands over his heads when one of the prisoners grabbed him by the hair. Mr Grixti became concerned that they were going to bash Mr Spellman’s head into the roadway and so he yelled out to them ‘Don’t hit his head on the ground’. In response, Mr Webb walked to the corner and told Mr Grixti and others who had gathered at the corner to ‘Fuck off, keep your nose out of it or you will get some too’. There was an exchange between Mr Berry and Mr Dyson in which one urged the other to break Mr Spellman’s nose. Mr Spellman was duly picked up and punched directly on the nose. I return to this matter later in these reasons.
Mr Spellman then walked towards the corner where Mr Grixti was standing. Mr Berry and Mr Dyson followed him and Mr Berry told Mr Spellman, ‘Pay us the
money or you are a dead cunt’. Mr Spellman replied that he had already paid the money. The three men then left the area.
The owner of Felice’s Café and one of the patrons of the café heard a commotion and walked towards Hargreaves Street to see what was happening. Neither man saw the assault but noticed that Mr Spellman was covered in blood. They saw three males walk off together. After they had left, the owner of the café took Mr Spellman into the bathroom of the café to clean him up. When asked what had happened, Mr Spellman told him not to worry and that everything would be OK.
Ms Horey spoke to Sloane Spellman over the telephone a few times that evening. In a telephone call shortly after 6 pm, Mr Spellman told her that he was at Felice’s Café and was planning on going to a gig that night. That telephone call ended abruptly soon after she heard some male voices yelling out. She spoke to him again over the telephone about half an hour later, and he told her that four men had beaten him up. He said he thought he had a broken nose and broken ribs. He told her, however, that he thought he would be OK and he still planned to go to the gig that night.
Later that night, Mr Spellman met his girlfriend, Olivia Grice, at a gig in the city. She observed blood on his clothing and he told her that he had been beaten up by four Turkish men. He had a broken nose but he put it back into place himself. After the gig they went back to her flat in Flemington where they stayed the night.
According to Ms Grice, the following day Mr Spellman woke up in a lot of pain. He told her that he thought he had two broken ribs. She told him that he should go to a hospital to get his ribs examined by a doctor. In the following days other people gave him similar advice. He told Ms Grice and others that he had had broken ribs previously and that there was nothing that doctors could do for broken ribs. All he needed, he said, was sleep and rest.
Mr Spellman stayed with Ms Grice from that Wednesday night until the following Sunday morning, when she had to go to work. Over that time his health
deteriorated. It became more painful for him to move about and, according to Ms Grice, he looked worse as time went on.
Mr Spellman had pre-existing health issues. He was a former drug user and a chronic alcoholic. As a result, he had hepatitis C and cirrhosis of the liver. In the previous two or three years, he had been hospitalised for liver failure and was receiving ongoing treatment for that condition. After he was attacked by the prisoners he continued to drink and, on occasions, went out to bars and other places to socialise with friends.
From Sunday, 4 March 2012 until the following Tuesday, Mr Spellman stayed with Ms Horey in Carlton. While he was staying with her, according to Ms Horey, he was in a lot of pain and was generally unwell. She also advised him to go to see a doctor and he said once again that a doctor could not do anything for broken ribs. She last saw him when she left for work on the morning of Tuesday, 6 March 2012.
After Ms Horey left for work, Mr Spellman walked to a supermarket in Brunswick and purchased two bottles of wine. While walking back to Lygon Street he was observed to be staggering about and asking for assistance. He collapsed near Ms Horey’s flat and a male who was working nearby called an ambulance. An ambulance attended and an officer provided some treatment. He was then conveyed to hospital for further treatment but lost consciousness and died shortly after arriving at the hospital.
On 9 March Dr Michael Burke performed a post-mortem examination. On his external examination he observed a number of bruises over Mr Spellman’s head and body. Subcutaneous dissection of the back showed bruises to the left upper chest and left and right lumbar regions. Dr Burke also observed that the posterior aspect of each of the 7th, 8th, 9th, 10th and 11th ribs was fractured, with associated haemorrhage. An examination of the skeletal muscle adjacent to the fractured ribs revealed a healing process within that skeletal muscle which was consistent with injury having occurred five to six days before the date of his collapse and death. The rib fractures and bruises to his back were consistent with his having suffered blunt trauma to his back.
Dr Burke also observed a haematoma on Mr Spellman’s spleen. The spleen was situated immediately behind the ribs which were fractured and, according to Dr Burke, the haematoma on the spleen was highly likely to have been the result of the same trauma that caused the fractured ribs.
Mr Spellman collapsed and died on 6 March 2012 as a result of his spleen rupturing, causing him to bleed to death. According to Dr Burke, it is highly likely that the rupture of the spleen was the result of the application of further blunt trauma to that area at a time more proximate to this death. The source of that further blunt trauma is unknown, but would be consistent with Mr Spellman having bumped into an object or fallen over and landed on an object.
No responsibility for the death
It follows from the medical evidence, and it was accepted by the prosecution, that none of the prisoners before the court is responsible, or is to be punished, for the death of Mr Spellman. Each man was originally charged with his manslaughter and each was committed to stand trial on the charge. It was explained at the plea hearing that it was that committal which led to these matters being in this court. Otherwise they would, plainly enough, have been dealt with in the County Court.
As I have said, the medical evidence makes it quite clear that Mr Spellman’s death was not the result of the injuries which were inflicted on him in this attack. Nor, unlike the case of Pota,[1] to which I was referred, were the injuries caused likely to cause death. The medical opinion was that the cause of death was attributable to a subsequent blunt trauma, from an unknown source, which caused the fatal rupture of the spleen.
[1]The Queen v Pota [2007] VSCA 198.
It follows that the fact of Mr Spellman’s tragic death is irrelevant to the sentencing task. It was an unrelated event. I do not overlook, however, that for a considerable period each of the prisoners understood that he was responsible, or it was at least alleged that he was responsible, for that death. I accept that the burden of that responsibility weighed heavily on each of them. It is not clear to me, given the medical evidence, how it was thought that they might have been responsible for the death, but it is unnecessary to explore that question further.
Because the death is irrelevant I upheld an objection on behalf of Mr Berry to the tender of a Victim Impact Statement prepared by Mr Spellman’s mother which, I was told, described the profound impact on her of his death. The learned prosecutor properly conceded that its content was irrelevant.
It is also important to record that the prosecutor conceded on the plea that, but for the subsequent rupture of the spleen, Mr Spellman would in all likelihood have recovered completely from the injuries sustained in this attack. As I will explain more fully in due course, that means there is a very significant distinction between these offences and very many offences of both ICSI and RCSI, with which both sentencing courts and the Court of Appeal are confronted. I will be referring to the illuminating overviews available on the Judicial College of Victoria website for both offences. It can be seen at a glance that cases where no permanent injury or disability is sustained are the exception.
Participation in the attack
I turn to consider the role of each of the three men. Mr Berry, you were both instigator and perpetrator. That was common ground on the plea and it is plain from the prosecution summary. Without your determination to punish Mr Spellman physically for what you believed to be an unpaid debt, this would never have occurred. And you, of course, were the one who delivered the beating.
Mr Dyson and Mr Webb, each of you played much less active roles and, as was explained on the plea, that is reflected in the Crown’s acceptance of your plea to the lesser offence of recklessly causing serious injury. I am satisfied that your culpability, Mr Dyson, is markedly higher than Mr Webb’s, for three reasons. First, you facilitated the attack by informing Mr Berry of Mr Spellman’s whereabouts. Secondly, you showed your active support for the encounter with Mr Spellman by meeting up with Mr Berry, aware — as you acknowledged — that Mr Spellman was likely to be physically dealt with. Thirdly, you assumed an active role in the infliction of pain on him.
I referred earlier to the punch on the nose. The plea summary stated that Mr Berry had told you, Mr Dyson, to break the victim’s nose, and that you had punched him on the nose. Your counsel challenged that statement of fact, submitting that once I reviewed the depositional material, I could not be satisfied beyond reasonable doubt that you were the one who struck the blow to the nose. Having reviewed the eyewitness testimony, I accept that submission. It is not possible to make that finding beyond reasonable doubt.
In the event, however, it makes little difference to your culpability, as your counsel properly conceded in argument. Plainly enough, whoever incited the other to ‘break his nose’, you and Mr Berry were joint perpetrators of that part of the attack. Either you, Mr Dyson, proposed it and Mr Berry carried it out, or it was the other way around. I will say more about Mr Webb’s lesser role later.
The relevant category of seriousness
I turn to consider the gravity of the offending. Earlier this year, in Nash v The Queen,[2] the Court of Appeal dismissed an appeal against a sentence of seven years’ imprisonment for ICSI. In my concurring judgment, I noted that the Court of Appeal had recently reaffirmed the importance of current sentencing practices in the identification of the sentencing range applicable to the case at hand. I there set out what Redlich JA said in Ashdown v The Queen[3] (which had been endorsed in Anderson v The Queen[4]), as follows:
[I]t is current sentencing practices, as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge.
…
Consistency in sentencing, fundamental to the administration of justice, requires adherence to current sentencing practice unless a specific circumstance exists which warrants departure from that practice. The law requires that a discretionary decision must be made in conformity with the well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[5]
[2][2013] VSCA 172 (‘Nash’).
[3][2011] VSCA 408, [174], [191].
[4][2013] VSCA 183, [21]–[24].
[5]Ashdown v The Queen (2011) 219 A Crim R 454, 517 [174], 523 [191].
For reasons I will give in due course, I consider that the range put forward by the Crown for each offender was quite inappropriate. It could not be reconciled with current sentencing practices for the relevant category of seriousness.
In my judgment in Nash, I set out a list of the matters which appeared, on my review of sentencing decisions, to be routinely taken into account by judges in assessing the seriousness of a particular instance of ICSI. That list was as follows:
·the offender’s proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?
·the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
· how vulnerable the victim was;
· whether a weapon was used;
· how long the attack on the victim lasted; and
· whether the offender acted alone or in company.
The list was expressed to be descriptive and provisional, not prescriptive. Counsel for Mr Berry submitted, nevertheless, that it provided a suitable framework for assessing the gravity of this instance of ICSI. Counsel for Mr Webb submitted that the framework was also suitable for assessing the gravity of this instance of RCSI. Their submissions were framed accordingly.
I deal first then with the matter common to all three prisoners: the seriousness of the injuries caused. I accept the submission, advanced on behalf of all three, that the injuries inflicted on Mr Spellman were at the low end of the scale of serious injury. As has been said, he sustained fractured ribs and bruising and an associated haematoma on the spleen, and was in considerable pain for several days after the attack. But, as counsel for Mr Berry pointed out and as I have observed for myself on the closed circuit TV footage, the victim was able to walk away after the attack and is last seen still engaged in active conversation with his attackers.
The case therefore stands in sharp contrast to those discussed in Nash, where life-threatening injuries were inflicted and — in most instances — permanent disability resulted. It seems to me of particular importance in this case that no head injury was inflicted. There was no attack on the victim’s head, of the kind which is often seen in offending of this kind where punching or kicking to the head results in unconsciousness. (There was, of course, the punch on the nose but the medical report makes no reference to anything other than bruising.) Self-evidently, an attack on the head is likely to be more serious because of the high likelihood of really serious injury being caused, which enables the inference to be drawn that that was what was intended or foreseen.
The question of intent is the next in the Nash list and, of course, it is closely related. I accept the submission for each of the prisoners that the injuries inflicted are an appropriate index (in Berry’s case) of intention and (in the case of Dyson and Webb) of the serious injury the probability of which they foresaw. Accordingly, I accept that these offences fall at the lower end of the scale as to state of mind, that is, intent or recklessness.
As I pointed out in Nash, there are cases in which it can be established that there was an intention to cause really serious injury or, worse still, the maximum possible injury. Such cases are materially different from those before the court. As I have said, it is significant that the punching and kicking was confined to the body, with
the exception of the punch to the nose. As counsel for Mr Berry pointed out, the kicking was said by the eyewitness to have been ‘not particularly vicious’.
Next on the Nash list is the vulnerability of the victim. I am satisfied this victim was not particularly vulnerable in the sense contemplated. Likewise, no weapon was used. That also distinguishes this case from very many of the more serious examples which come before the courts.
Lastly, it is necessary to consider the duration of the attack and whether it was alone or in company. Counsel for Mr Berry submitted that, as the attack lasted no more than a minute and ten seconds, it should be regarded as of comparatively short duration. I reject that submission. It is true that the attack was a single, sustained assault, and stands in contrast with cases where an attack begins, ceases and is then resumed. Nevertheless, 70 seconds is a long time to endure a hail of punches and kicks — all the more so when, for much of the time, the victim was helpless on the ground.
That leads me to what I regard as the most significant aggravating factor of this case, which is that it was an attack in company. Put simply, this was three onto one. Quite properly, all counsel conceded that this made the offences more serious. It seems to me that an attack in company is more serious than a solo attack in two distinct respects. First, it makes each of the offenders more culpable, because it is a much more cowardly thing to do. Strength in numbers means that none of the attackers is at any personal risk. Secondly, being set upon by a group would make the experience all the more terrifying for the victim, because it signals that there is no possibility of escape and, practically speaking, no possibility of helpful intervention by others. Mr Spellman must have felt completely at the mercy of his attackers. These points were properly conceded by counsel.
This was, in short, a cowardly and vicious attack on a defenceless man. This was entirely gratuitous violence. There was absolutely no occasion for it. Its object was
to punish Mr Spellman, to give him a thrashing for not repaying what Mr Berry claimed was owing to him. As Vincent J said in R v Hooker:
The employment of violence … to settle personal grudges obviously cannot be countenanced. The courts must endeavour, through the sentences handed down upon those who resort to such measures, to deter any who may contemplate such behaviour.[6]
All counsel accepted, properly in my view, that general deterrence was an important consideration in sentencing for offences of this kind.
[6]R v Hooker [2006] VSCA 95, [21].
I now turn to matters personal. Each of you can rely on the fact that you entered a relatively early plea of guilty once the manslaughter count was dropped. The prosecutor properly conceded that this was so. Your pleas saved everyone associated with Mr Spellman from going through the trauma of a trial, and saved the community the time and cost of court proceedings. And I accept that your pleas of guilty reflect remorse about what occurred. The sentences I propose reflect your pleas of guilty.
Brett Berry
Mr Berry, you were born on 9 May 1969. You were 42 at the time of the offence and you are now 44. Your counsel drew attention to your dysfunctional background which, he submitted, had led you into the life you have led. Your father was alcohol-dependent and violent. You suffered repeated exposure to violence and physical abuse, both towards your mother and yourself. On your thirteenth birthday, you saw your father beat your mother to death. Following her death you lived briefly with relatives but were subsequently homeless. You left school before completing Year 7. You worked for one year as a butcher but there is otherwise no substantiation of consistent employment. You had a ten year relationship with the mother of your daughter. You had custody of her for several years, but I was told that the mother had retaken custody unilaterally. According to your counsel, you then ‘went off the rails’.
You are anxious to be able to resume your efforts to regain custody of your daughter. The reports from InnerSpace (North Yarra Community Health) are most impressive, describing you as ‘extremely motivated to get [your] life back on track’ and emphasising that your participation has been entirely voluntary. You have sought assistance in acquiring stable accommodation, which you have maintained over a period of time.
As your counsel conceded, however, the significance of your dysfunctional background lessens in the light of your regular contact with the criminal justice system and your advancing years. You must be well aware by now that conduct like this is illegal and will not be tolerated by the community. You have a number of relevant prior convictions. In 1990 you were convicted on two counts of aggravated rape and two counts of assault, and sentenced to a substantial period of imprisonment (six years with a minimum of four). In 1999, aged 30, you were convicted of unlawful assault, but the sentence of 28 days’ imprisonment indicates that that was very much at the lower end of seriousness.
Since then, to your credit, there have been no further offences of violence. You were convicted in 2007 and 2010 of offences of dishonesty. Specific deterrence remains a relevant sentencing consideration. As I said to your counsel on the plea, given your motivation to improve your condition of life it is all the more concerning that you would embark on a gratuitous attack like this when you had plenty of opportunity to change your mind.
Your counsel relied on the report of Associate Professor Warwick Brewer, a neuropsychologist, who reported on significant cognitive and psychological issues. You suffer from sporadic seizures; you report ‘out of order’ thinking; and you experience short-term memory loss, paranoia, impaired concentration, anxiety, depression and poor emotion/impulse regulation. In Prof Brewer’s opinion, you have a tendency to ‘live in the moment’ and a ‘borderline’ capacity to rationally consider the long-term consequences of your actions.
Long-term drug abuse and chaotic lifestyle have contributed to a lack of maturity of reasoning and organisational skills. In Prof Brewer’s opinion, you do evince some remorse for the offending in question. The InnerSpace reports say that you have broken down in tears in discussing the assault and the consequences for those involved. In Professor Brewer’s opinion, your overall profile is consistent with acquired brain injury. Professor Brewer describes the implications of that diagnosis as follows:
It is most unfortunate that support services apparently did not protect [Mr Berry] from violence as a child, which culminated in him witnessing his mother being killed by his father. Mr Berry’s life on the streets as a child onwards has been characterised by violence, by a disorganised and chaotic lifestyle, by paucity of resources, and by being numbed and compromised by substance abuse. Crime is inevitably associated with this life-style. The associated assault and eventual death of his victim is also a tragedy, where timely and focused intervention many years ago very likely would have seen that assault avoided. The fact that Mr Berry still remains untreated, and experiences acute suffering at the underlying triggers for his substance abuse to this day does not reflect well on the systems designed to take responsibility to assist in avoiding these circumstances in this clinician’s opinion.
Mr Berry continues to understand the difference between right and wrong generally, and particularly with respect to the crime for which he is currently facing charges. There is no direct evidence available to this clinician from a urine drug screen or blood test at the time of the assault of Mr Berry’s victim. Therefore, it is not possible to determine the acute impact of substance abuse on his thoughts and behaviours at the time of the assault. However, chronic substance abuse and the degree of acquired brain injury he has sustained suggest that Mr Berry’s judgment, organisation and ability to consider the longer-term impact of his actions at the time of the assault were reduced to the borderline range of comprehension. He nevertheless remains functionally intact to recall some of the event surrounding the assault. His mood instability and poor regulation of anxiety generally, and particularly when untreated, suggest that in times of elevated distress, he is more likely to act impulsively. Mr Berry’s compromised verbal memory, especially for short-term events, suggests that he is more likely to live in the moment, particularly when compounded by substance abuse, where the imperative is to meet short-term egocentric desire, rather than let the impact of longer-term consequences impede his need to satiate his desire.
I accept that in certain circumstances the cognitive effect of acquired brain injury might mitigate a person’s culpability for offending. Your counsel submitted that I should take that view in this case. I am not persuaded that I should do so.
The Brewer report describes your tendency in times of elevated distress to act impulsively and to ‘live in the moment’. But, as the prosecutor correctly submitted, this was not impulsive conduct. You were not reacting to sudden distress or threat; on the contrary, you had apparently harboured this grievance for some time, and you had plenty of time to think — even from the moment Mr Dyson contacted you — about whether to go through with your intention to confront Mr Spellman. Your counsel conceded — correctly, in my view — that this amounted to a degree of premeditation. The course of events satisfies me that you acted deliberately and purposefully in this attack.
I turn to your prospects for rehabilitation. You were on bail for seven months between December 2012 and July 2013. You complied with your bail conditions and there was no further offending. Taken together with the very positive reports about your motivation to rebuild your life, I am satisfied that you have good prospects of rehabilitation.
Your counsel submitted that you should be sentenced at the lower end of the range of sentences for intentionally cause serious injury. I agree with that submission.
The prosecutor submitted that the range applicable to your offence was between four and six years for the head sentence, and between two and four years for the non-parole period. With respect, I regard that submission as wholly misplaced. Given the considerable amount of very helpful information which is available about current sentencing practices, it is surprising that the prosecutor’s range submission made no reference to any cases with which this case could be compared or from which it could be distinguished. As mentioned earlier, it is fundamental that Crown submissions on range be informed by current sentencing practices. For an offence like this, the characteristics of which vary from one case to another, it must be the sentencing practices for the relevant category of seriousness.
Your counsel helpfully referred me to the Judicial College of Victoria’s overview of decisions of the Court of Appeal dealing with sentencing for ICSI where that is the principal offence. That overview sets out, in very helpful and accessible form, decisions from 2006 onwards. For each decision, the summary includes sufficient details of the offence and the offender (including details of the injuries caused and the sentence imposed) to assist in identifying comparable cases.
As I said in Nash, the high degree of variation in sentencing for ICSI is a matter of real concern from the point of view of consistency of sentencing. It is nevertheless clear from the JCV overview that sentences in the prosecutor’s range are imposed for offences markedly more serious than the present. The same point is clear from the lists of ICSI sentences attached to the recent judgments of the Court of Appeal in Nash and Kumar v The Queen,[7] respectively.
[7][2013] VSCA 191.
Consistency in sentencing requires that like cases be treated alike. It also requires that cases which are materially different from each other should be sentenced and seen to be sentenced differently. Other things being equal, the nature and extent of the injuries caused —and, in a case like this, the associated intent or foresight — will be a very significant differentiator of seriousness. After all, the offence is intentionally causing serious injury.
Craig Dyson
I turn to Mr Dyson. You were born on 7 December 1975. You were aged 36 at the time of the offence and you are now 38. Like Mr Berry, you come from a dysfunctional background, as described in the report of Michael Bilyk, psychologist.
It is a striking feature of this sentencing task that each of the prisoners comes from a shockingly disadvantaged background. The difficulties which each of them confronted as boys and young men are scarcely imaginable. It seems to me that our community has little idea of the profound disadvantage from which people like these men suffer, beginning at an age when they have no control at all over their circumstances.
In the end, of course, the criminal justice system has to deal with their offending behaviour. As I have indicated, the hardship of the early years becomes less and less relevant as a career of offending unfolds. But the obvious nexus between disadvantage of that kind, and substance abuse, and offending, should be a matter of great concern to the community.
Mr Bilyk reported that your father passed away when you were 12. Your mother was ill and not equipped to care properly for you. Following your father’s death, you lived with your mother in an aunt’s garage. Your mother passed away when you were 21. You had cared for her in the last three years of her life. You did not attend school past Year 6 and I was shocked to hear (though not surprised, given the disadvantage you faced) that you remain illiterate. You have experienced periods of homelessness as an adult and have struggled with heroin addiction. You have, however, had substantial periods of employment and you worked voluntarily in prison, as well as having completed hospitality and cleaning training courses, and a depression management course.
You have a long criminal record but principally for offences of dishonesty. The only relevant prior conviction is in 2005, for recklessly threatening serious injury, but as your counsel pointed out, there is a distinction between threatening and causing serious injury.
The most recent conviction was in December 2009 for theft and going equipped to steal. You were sentenced to six months’ imprisonment to be served by Intensive Corrections Order. You breached that order and were then re-sentenced to an aggregate term of six months, again to be served by Intensive Corrections Order. You were on that order when you committed this offence. You counsel conceded — properly, in my view — that this breach of the sentence you were serving is directly relevant to specific deterrence. It is again of concern, given what I accept is your desire to transition to a law-abiding life, that even on a day when you were doing work under the Intensive Corrections Order, you became a willing participant in this vicious attack. It is also relevant, in my view, that Mr Bilyk’s report assesses you as a moderate risk of violence.
Your counsel submitted that your conduct in telephoning Mr Berry to let him know about Mr Spellman’s whereabouts reflected ‘the law of the streets’. This was said to be the ‘socio-commercial environment’ in which you were living. That may be so, but as your counsel acknowledged, and I am sure you would acknowledge, that cannot excuse the infliction of serious injury on an innocent person.
It was pointed out on your behalf that you are serving your sentence in protection through no fault of your own. You therefore have very limited opportunities for recreation. Your counsel said that you were ‘doing it hard’ in protection. I take that into account as increasing the burden of imprisonment. I accept that you are genuinely remorseful. You have expressed shame and anguish as to what happened to Mr Spellman. And I accept that the fact that you were initially charged with his death had a very significant effect on you.
I am satisfied that you, too, have good prospects of rehabilitation, having regard to your periods of sustained employment and the fact that you are in a stable relationship with your partner. Your counsel said, and I accept, that upon your release you intend to go and live with her in the country, ‘away from old haunts and old associates’.
In your case the Crown submitted that the appropriate sentencing range was a head sentence of between two-and-a-half and four-and-a-half years, and a non-parole period of one-and-a-half to two-and-a-half years. Again, in my respectful opinion, that submissions is based on a miscategorisation of this offending.
I have had regard to the Judicial College of Victoria’s overview of Court of Appeal decisions dealing with sentencing for RCSI as the principal offence. The overview is helpfully broken into two parts. The first part deals with sentences where the injuries are of the highest seriousness, the second part with less grave injuries. Plainly enough, it is the second part of that overview which is relevant to sentencing range in this case. It is quite clear, on an examination of that overview, that current
sentencing practices for this low category of seriousness simply do not justify the submission made by the Crown.
Scott Webb
I turn finally to you, Mr Webb. You were born on 14 January 1972. You were aged 40 at the time of the offence and you are now 41. Like your co-offenders, you have a background of extreme social disadvantage. I have already made some remarks about that. Once again, and for similar reasons, the argument holds less and less weight as time goes by and after the multiple encounters you have had with the criminal justice system. As I have said, the community is entitled to expect that, whatever the disadvantages experienced in life, punishment (including imprisonment) should convince offenders that if there is further offending sentences will simply become more severe.
You were born in Adelaide. Your mother was in her late teens and your parents separated at your birth. You did not find your father until you were 20, nor were you raised by your mother, who suffered health problems including cancer and a serious car accident. In your first 13 years, you lived with various members of the extended family, in three foster placements and two cottages owned by the Department of Human Services. You went to nine primary schools and four high schools. You only saw your mother very infrequently. Your mother remarried and again and, shockingly, your step-father would not allow your mother to acknowledge you as her son. Unsurprisingly, there was conflict with your step‑father. You then were living with an uncle who was an alcoholic. You ran away twice and ended up on the streets at 14. There were no relatives who could take you and you would see your mother only once a year.
As your counsel put on the plea, the central issue in your adult life has been instability. Indeed, from your early years, quite simply nobody wanted you. You constantly lived in situations where other children were preferred to you. You were in a Housing Commission flat at 15. You tried to continue your schooling but dropped out. You then worked in unskilled positions. You have not seen your mother since 2001 because of the conflict with your step-father. You subsequently became itinerant and unemployed, living between couches, men’s hostels and gaol. You were in a cycle of being in and out of gaol, and had nowhere to live. More recently, however, you were in the community for 17 months and you achieved your goal of stable accommodation. As your counsel put it, you got a flat and a dog and you were working hard towards escaping what has up to now been a recidivist lifestyle.
The psychological assessment concludes that you are easily overwhelmed by social and emotional factors. Several of the letters of support attest impressively to your positive attitude, your relative success in overcoming your drug problems, your openness in dealing with your emotional issues and your motivation to improve and plan for the future.
Your counsel informed me that you were at risk of losing your housing through non-payment of rent as a result of being in gaol. He submitted that, quite understandably, you were making efforts to ensure that your housing was maintained so that on your release you could continue to build up this unprecedented stability in your life.
You have a very serious criminal record. Since 1990, you have multiple convictions for dishonesty offences and several relevant prior convictions for violence. In September 1997, you were convicted of armed robbery with wounding and sentenced to three years with a minimum of two. Much more recently, in August 2005, you were convicted of aggravated burglary (sentenced to three years’ imprisonment) and causing injury recklessly (sentenced to 12 months’ imprisonment).
Another conviction for causing injury recklessly and attempted theft was recorded in 2006 and you were sentenced to 18 months’ imprisonment. In March 2010 there was a further term of imprisonment of four months for burglary, theft and resist police. And, as recently as August 2011, you were put on a Community-based Order for 12 months although, as your counsel pointed out, this related to offences from 2004. You were on that order at the time of this offence.
You were also, importantly, on parole at the time of this offence. Your counsel helpfully set out your chronology of incarceration and parole in his written submission, as follows:
Recent chronology of incarceration and parole
§ In relation to matters determined in County Court on 12/8/2005 — was remanded on 22/10/2004 and released 13 November 2007 on parole (Matters dealt with on 31 January 2006 and 28 February 2006 dealt with while still in custody and pre-date County Court sentence)
§ Matters in 2008 and 2010 involved cancellation of parole and service of some parole before being re-released
§ Parole cancelled after 6 Aug 2008
· (28 October — imprisoned for 3 months)
§ 23 April 2009 — paroled
§ 17 March 2010 — parole cancelled
· (1 March 2010 sentenced to 4 months)
§ Paroled 6/12/2010 (to expire 30/6/2012)
§ Matters dealt with on 24/8/11 relate to offending in 2004 — CBO imposed
§ Parole cancelled 4/5/2012 after being remanded on these matters on 2/5/2012
§ Released on parole 27/3/2013 (to expire 20/11/2013) after getting bail on 20 December 2012
· successfully completed intensive parole for first 3 months attending all appointments and 5 required sessions of D & A counselling. Attended random drug screens as required and tested negative for illicit substances — refer letters from Parole Board and Innerspace.
· demonstrated capacity for engagement with services.
§ Remanded when arraigned on RCSI this year on 16 July 2013 — parole has not been breached as of sentencing date.
At the time of this attack, you were only six weeks from the end of your parole. Again, as with Mr Dyson, that raises in my opinion a very real concern about your ability to stay out of trouble with the criminal justice system. At the very time when you ought to have been able to see the end of that parole sentence looming, you chose not to dissociate yourself from this offending once you saw what was happening, but rather became a participant in it.
It was submitted that your success with intensive parole earlier this year showed that you were ‘desperately trying to ... get to the point where [you] can … get into society and live’. Your attitude is said to be: ‘I want to put this behind me and find my little square on earth and live peacefully’. As with this offence which derailed your parole, you were again derailed when remanded in custody following the plea of guilty in July.
I am satisfied that your role was the least significant in this offending, but I do not accept the argument that what were said to be ‘gaol house values’ mitigated the seriousness of your participation. It is one thing not to intervene in someone else’s fight; it is another to facilitate actively the carrying out of someone else’s fight, by stopping other people from interfering.
As a result of this offence, you served 325 days under the parole sentence. I take that into account as relevant to the principle of totality, which is brought into play in these circumstances.[8] That is a consideration which applies to you but not to either of the other prisoners. As I have said, I consider that your role was the least culpable of the three. You did not instigate, you went along. You did not participate in the violence, you stood by. Your only intervention was to keep others from interfering.
[8]DPP v Dickson (2011) 32 VR 625, 632–4 [22]–[26].
These last two matters — the relevance of totality because of the parole sentence and your lesser role — are the chief distinguishing factors between you and Mr Dyson. In his favour, however, is that he has no history of violent offending.
The Crown submitted that the same range was applicable to you as to Mr Dyson, and for the reasons I have already given it was not an appropriate submission in your case either.
Sentencing
Would each of you stand please?
For the reasons I have given, I have concluded that you should be sentenced as follows.
Brett Allan Berry, on the count of intentionally causing serious injury, I sentence you to three years’ imprisonment with a non-parole period of two years.
Craig David Dyson, on the count of recklessly causing serious injury I sentence you to two years’ imprisonment with a non-parole period of one year and three months.
Scott Webb, on the count of recklessly causing serious injury I sentence you to one year and six months’ imprisonment with a non-parole period of 12 months.
I want to conclude by acknowledging in your presence the very considerable assistance I received from your counsel on the plea. Each of you was very ably served by your counsel, whose thorough, careful and thoughtful submissions shed important light on a variety of important issues, both to do with the offence and with your circumstances. The Crown submissions were also clear and helpful, and concessions were made as appropriate.
There are two orders that I made on the last occasion. The first, Mr Berry, is that you undergo a forensic procedure for the taking of a scraping from the mouth or a blood sample. I must explain to you that, if at the time you are asked to provide the scraping or the sample, you do not consent to it, the sample taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
The other order was in relation to Mr Dyson, and I simply state for the record that it was an order that the sample obtained pursuant to your consent be retained for placement on the database.
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