R v Berry - [2013] VSC 735

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…

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 [2013] VSC 735
Case: [2013] VSC 735
Decision Date: 19 December 2013

CaseChat Overview and Summary

The case of R v Berry involved two defendants, Berry and Dyson, who were prosecuted for their involvement in an attack in company that resulted in serious injuries to the victims. The case was heard in the Court of Appeal, where the primary focus was on the sentences handed down by the trial judge. Berry and Dyson both pleaded guilty and expressed remorse for their actions. The victims sustained low-level injuries during the incident, which was carried out in the company of co-offenders.

The legal issues before the court were primarily concerned with the appropriateness of the sentences given to Berry and Dyson, considering the factors relevant to sentencing in cases involving intentionally or recklessly causing serious injury in company. The court had to assess the seriousness of the offending, the roles played by each defendant, and the prospects of rehabilitation. The defendants' pleas of guilty and expressions of remorse, as well as their prior criminal records, were also taken into account. The Crown submitted that the sentences were within the appropriate range, while the defendants argued that the trial judge had misconstrued the seriousness of their respective offences and failed to adequately consider current sentencing practices.

In its decision, the court found that the trial judge had not properly categorised the seriousness of the offences, and had not given sufficient consideration to the current sentencing practices for the relevant category of seriousness. The court applied the principles set out in Nash v The Queen [2013] VSCA 172, emphasising the importance of accurately assessing the seriousness of the offending and ensuring that the sentences reflect the totality of the circumstances. The court determined that Berry's sentence was inappropriate, given his lower role in the attack and his good prospects of rehabilitation. Dyson's sentence was also found to be excessive, taking into account the totality of the circumstances and the differences in their respective roles. The court ordered that Berry be re-sentenced to three years' imprisonment with a non-parole period of two years, while Dyson's sentence was reduced to two years' imprisonment with a non-parole period of 15 months.

In light of the court's determination, Berry and Dyson were re-sentenced accordingly. The court's decision underscores the importance of accurately assessing the seriousness of offences and ensuring that sentences are proportionate to the circumstances of each case. The court's application of Nash v The Queen [2013] VSCA 172 highlights the need for judges to carefully consider current sentencing practices when determining appropriate sentences for serious offences.

Orders