R v Berry

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION
No.1520 of 2004
THE QUEEN
v NATHAN DANIEL BERRY STEPHEN MATTHEW WENITONG

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JUDGE:	JUSTICE KING
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2005
DATE OF SENTENCE:	17 November 2005
CASE MAY BE CITED AS:	R v Berry
MEDIUM NEUTRAL CITATION:	[2005] VSC 528

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RE TRIAL – prison murder - mixed DNA. SENTENCE: Wenitong : 27 years with a minimum of 20. Berry : 23 years with a minimum of 17.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Pullen S.C.	Ms T Heffernan solicitor for the Office of Public Prosecution
For the Accused	Wenitong: Mr A Lewis	Galbally and O’Brien
Berry: Dr G Lyon
HER HONOUR:

Nathan Daniel Berry and Steven Matthew Wenitong, you have each been convicted on one count of murder, that murder occurring on 2 March 1998 at Barwon Prison.
The deceased in this case, Brian Edwards, was, like yourselves, a prisoner in the Victorian Corrections system. He was serving a sentence for drug related offences and was aged in his 50s. You were both in the Acassia Unit at Barwon for different reasons, none of which bear any great relevance to this sentence.
On Monday 2 March, Brian Edwards was transferred from Port Phillip to Barwon Prison, arriving there with other prisoners around midday. He was brought into the Acassia Unit at about 3.30. By 6.30 p.m. he was dead. He had been stabbed six times in the chest area with a stolen knife, and a ligature created from three shoe laces had been placed around his neck. It had been used obviously in an attempt to, at the very least, restrain him.
The verdict of the jury says that each of you is equally responsible for the death of Brian Edwards, without being able to say further, who did what particular actions.
There is no discernible motive for this offence. He had been in the Acassia Unit with you, for just on three hours. There was material in the depositions that indicated that Mr Edwards was afraid that you, Steven Wenitong, were going to kill him if he was transferred. However, that evidence was recanted and I proceed on the basis that whatever motive existed for the killing, it is certainly not known to me.
It was a savage and barbaric act against a man much older than you, obviously not as fit as either of you, and outnumbered. It is clear, that there must have been some planning required, in that the knife had been stolen and the ligature created prior to his death, but I am unable to say whether that was a matter of hours or days, as I am unable to say that either of you stole the knife. So I make no finding other than that it was not a spontaneous killing of Mr Edwards.
Equally, it occurred in a prison environment in one of the most secure prisons in this state. In our country if someone commits a crime they are punished by a term of imprisonment. They are not sentenced to death for any crime known to our law, and yet that is exactly the sentence that you have pronounced on Brian Edwards.
You, Nathan Daniel Berry, are aged 27, having been born on 2 February 1978 and, accordingly, you were aged 20 years and one month when this murder occurred. You, Steven Wenitong, are aged 33, having been born on 1 January 1972, and you were aged 27 at the time of the murder.
You both have prior convictions, some that are relevant to this matter. You, Steven Wenitong, have a significantly more serious prior history. Mr Berry, your prior history relates to being, at the Prahran Magistrates' Court in September of 1995, being in possession of cannabis, using cannabis and in possession of a drug of dependence, amphetamine, and you were released on an undertaking to be of good behaviour for 12 months. You were convicted ex parte at the Magistrates' Court at Prahran in November 1996 on a totally irrelevant charge of consuming liquor in an unauthorized location, and on 1 July 1997 on two counts of burglary and two counts of theft, for which you were fined $1,000.
Steven Wenitong, your prior history, as I indicated, is far more significant. You were convicted at Preston Magistrates' Court in May of 1992 of failing to answer bail on two sets of charges, first being seven charges including theft, burglary, attempted burglary, going equipped to steal, reputed thief found loitering in a public place, the second set of charges included , attempted theft and carrying a prohibited weapon. You were placed on a suspended sentence, a community-based order. You were breached in respect of that, fined $100 and ultimately sentenced to nine months' imprisonment. In December 1992, cultivation of a narcotic plant, drug of dependence at Ringwood Magistrates' Court, placed on a good behaviour bond for a period of 12 months. Box Hill Magistrates' Court, December 1992, eight charges of burglary, 11 charges of theft. You received in total eight months' imprisonment. At the County Court at Melbourne on 23 April 1993, a count of armed robbery and a count of theft. You received a total of two years nine months with a minimum non-parole period of two years. In August 1993, armed robbery again, in the County Court at Melbourne, you were sentenced to five years with a minimum of two years nine months and in September 1994, for burglary and theft, you were sentenced to a total effective sentence of four months' imprisonment.
You both have subsequent convictions, which are not relevant for the purpose of imposing the actual sentence, but are relevant in determining if you have shown any signs or indications of rehabilitation or progress towards a crime-free future.
Nathan Berry, yours relate to matters in 1999 of driving while exceeding the legal alcohol limit. Then in February 2002, 19 charges relating predominantly to burglaries and thefts, for which you received a six month term of imprisonment fully suspended. You breached that on two occasions and ultimately you served three months' imprisonment. In July 2002, a theft for which you were fined; February 2004, burglary, theft and driving offences, for which you received four months' imprisonment and, finally, in May 2004, you were a prohibited person in possession of a firearm, a silencer and another prescribed item, for which you received three months' imprisonment. The significance of the last conviction was, that it occurred in the company of your current co-offender, Steven Wenitong.
You Steven Wenitong, have subsequent appearances for armed robbery and theft in May 2000, for which you received a sentence of nine years with a minimum of six years. That offence had occurred prior to this murder and you were on remand in respect of that and another charge of murder, at the time of the commission of this offence. In December 2002, you were convicted of three counts of contempt of court, for which you were imprisoned for six months, and finally the matter with your co-offender in May 2004, for which you equally received three months' imprisonment.
Nathan Berry, in relation to your personal circumstances, as I indicated, you are now aged 27. You were adopted by your parents who, I note, attended court every day of your trial and your plea and who are clearly very supportive of you. Your father is a paraplegic as a result of a motor vehicle accident that occurred well before you were born. Your mother was a nurse and met your father through her nursing career. They can both be described as, being in relatively poor health, with your father having had a pacemaker and TIA stroke, as well as an aortal aneurism. Your father worked successfully in electronics, until his retirement through ill health. Your mother has had two hip replacements and a heart attack.
You have an older sister, also adopted, aged 30. It is clear, that you have a loving and caring relationship with your parents and this is confirmed in the psychological report, that was tendered to the court in Exhibit 2 on the plea.
You had somewhat fractured schooling, in that, although you attended only the one primary school, you attended three different secondary schools, ending up at Caulfield Community School at the age of 14, which was described in the report as a school for misfits, in which you fitted well. Your psychologist, in her report to the Court said, that you were sexually abused at the age of eight years by a cub master, a matter which you did not report. She is convinced that it is true, and I have no reason to doubt that assessment. It is common for young victims of sexual abuse, not to report such incidents until much later in life.
You described your father as a strong disciplinarian and it was not until you reached the age of 18, that you developed the current strong relationship, that you have now have with him.
You had, what is termed oppositional defiance by your psychologist, from a very young age, which fits in with the need for you to go on to a more relaxed and less disciplined school. You did not formally qualify for any particular years at school, but you were also described as, not unintelligent.
You remained at Caulfield until you were aged 16, leaving in 1994 and commencing an apprenticeship as a tiler. This apprenticeship did not last as your employer died and you were unable to transfer. You worked on and off in the building trade, but continued, as indicated by your prior history, to have skirmishes with the legal system. You have told the psychologist that, you commenced using alcohol at about age 11, progressed from there to cannabis, and from there to amphetamines, and finally heroin. Your heroin usage commenced in custody whilst awaiting trial for murder, a charge of which you were acquitted in 1998. As can be seen once again from your criminal history, you continued to use heroin, resulting in you committing burglaries and theft and other offences, obviously to find the money to continue to pay for your heroin use.
You have had a long, ongoing relationship, and that relationship ultimately assisted you in trying to rehabilitate yourself via a methadone programme in January 2003, which was the same time that you had a daughter, from that relationship. You first met your partner when you were 11 and you became involved in a relationship at the age of about 15. Your partner is most supportive of you. She brings the child to visit you in prison and has indicated, that her life is basically on hold until you are released.
Mr Wenitong was released in July 2003, and I have already referred to the matter where you were jointly arrested. You were arrested in January of 2004 and remanded for this offence.
You, Steven Wenitong, are now aged 33. You were born to a mother who you believed to be a British orphan migrant and who spent her formative years in orphanages in Australia. Your mother had four children with three different partners. You have an older brother, who is the product of her first relationship with a white man. You and your older brother, Ron Skelly, who was mentioned frequently during the trial, with an aboriginal partner, and a younger brother with a white male. The first three children were institutionalised, each of them at around the age of 12, all as being uncontrollable.
You lost contact with your mother for over a decade, and although you have met occasionally, you could not be described as really being in contact with her. You attended Ascot Primary School and felt discriminated against, being the only black child in the school, and relied heavily upon your brother Ron, for company. Your brother Ron, although of the same genetic mixture, apparently has a white complexion. Your eldest brother, the first of your mother's children, you remember as particularly violent and aggressive. You described feeling very distressed when Ron was removed from home and placed in care and, although you were enrolled at St Patrick's Boys College, you ran away and your behaviour was defiant.
You have told psychologists on a number of occasions, that you remember going away on a trip to your mother's de facto's parents and returning home, to find that they had left the house without any forwarding address, and you lived on the streets, until taken into care by the authorities.
There was an issue, about whether you had Aboriginal heritage or not, and in my view, it is of small moment whether it is true. What is true is that you have always believed that you and your brother Ron, were of Aboriginal decent and that, in my view, is the more important aspect of that matter.
When you were 14 you met up with your brother Ron, again and went to Surfers Paradise where you committed some offences and you both received an 18 months youth training centre equivalent. You became quite dependent on your brother Ron, during that time in custody, and it appears that that has not ceased.
Your history of offending continued from this quite early age and you were involved in selling drugs, being a morphine addict yourself by that stage, you were also involved in stealing cars and other types of theft. You returned to Melbourne about the end of 1991, became involved in burglaries down here, before graduating to armed robberies, for which you received about four years' imprisonment. You attempted to stay out of trouble, but your addiction ultimately over took you and you embarked on a series of armed robberies with Ron and another friend, Peter. You were ultimately released again in January 1996 and you lived with a woman you had met before your incarceration.
You became involved in a bank robbery at Seville which netted you and two co-offenders $34,000. A week prior to being charged with the armed robbery, you were charged with murder. All of this occurred in February of 1997. You were tried and convicted on that murder, with your brother Ron, but on appeal that verdict was quashed and a new trial ordered. The appeal for your brother was unsuccessful. The Crown did not proceed with the retrial and instead entered a “nolle prosequi”.
You had received a total of 23 years with a minimum of 18 for the murder and the armed robbery and that sentence was quashed and the court of Appeal imposed a sentence of 10 years with a six year minimum. At the time of this murder, neither you nor Nathan Berry, had been presented for your respective charges of murder. You were both on remand.
You were released in June 2003, from the sentence applicable to the armed robberies and you rekindled a relationship with a young woman you had known. You now have a son with Linda Cirilla aged approximately 15 months. She visits you on a regular basis, with the child. Apart from your brother Ron Skelly, who is still, as I understand it, in prison, you have almost nothing to do with your family.
You have endeavoured whilst in prison, to undertake as much study as possible. I have been given numerous certificates relating to the courses that you have completed. You hope to complete a university degree whilst undertaking your sentence. There is no doubt, that you are intelligent enough to complete this. I can only hope for your future life, that you are able to complete these studies and they have some positive impact upon your life.
You were involved in a motor vehicle accident at the age of 19 sustaining a closed head injury of severe force. You sustained another head injury in 2002 and suffer from migraines at times. You have been described as, having an explosive temper and a great deal of anger at the world, for what you perceive as your unfair treatment in life. The psychological reports tendered, indicated that you have a high IQ and are quite intelligent. This has diminished over the years, as your drug useage and incarceration has taken its toll. I have to say, you truly represent a picture of a wasted life. Most of your adult life has been spent in prisons, as well as the period of your formative years. You are a sad reflection on our society.
I have received the victim impact statements in this case and they reflect what one would expect, the grief that comes with a person who is a father and a husband, taken unexpectedly and viciously from his family. I do take the contents of those reports into account and, as I indicated, they suffer the range of pain and emotion that one would expect for a crime of this nature, in which the person they loved was killed.
I was referred to a number of authorities, including the matter of R v. Steven Devries where His Honour Vincent, J.A. at p.7 stated:
"Persons incarcerated in our gaols are, by reason of the circumstances of their confinement, required to live in close proximity to each other, often for lengthy periods and often in situations of some difficulty. For a myriad of reasons, including the development of understandable frustrations and stresses, as well as the circumstance that a significant percentage of those imprisoned at any one time are likely to be of violent disposition or emotionally labile, tensions will arise and the risk of violence is ever present. Notwithstanding those realities, it is not a part of the sentence of imprisonment that the individual subject to it is to be required to live in fear or be subject to violent, physical attack. Whatever interpersonal problems might arise, there can never be any justification for the use of violence against a fellow prisoner on the basis that he has offended in some way against prison culture by seeking the assistance of the authorities in the resolution of a problem that has arisen or in order to secure his own safety. It hardly needs to be said that our prisons must not become jungles with their own subculture in which predators can enforce their will in the confidence that those who are subject to it will be too fearful to do anything about it, or in which the only practical response is to take equally violent retaliatory measures. Neither can it be accepted that there is a separate gaol culture that somehow mitigates the employment of force as a method of settling disputes. Obviously the courts must play their part in endeavouring to ensure that no such situation develops and through the sentences that are handed down discourage the use of force in this way. In other words, it must be crystal clear to all concerned that the conduct of the kind in which the applicant engaged will not be tolerated and will almost certainly attract the imposition of condign punishment. Nor in the present matter can the applicant's history of violence be disregarded."
That was a case involving recklessly causing serious injury, but the comments are just as relevant to the sentence that I must pass for this murder.
In relation to both of you, I have to say that unfortunately in my view, your prospects of rehabilitation are not high. I believe that you both have good intentions in respect of your future plans, but I am concerned that this murder was committed whilst you were both on remand for murder, albeit that you were both ultimately acquitted; that it was committed for some unknown motive, but the one put forward by the Crown, which I rejected going to the jury, indicated that if there was a motive, it was probably petty in nature.
The matter that gives some hope, is that you both have become fathers for the first time and that may give you some inspiration for the future, some hope of having a proper relationship some day, with your children.
You Nathan Berry, were quite young at the time of the commission of this offence, being just 20 years old. You Steven Wenitong, were older at 27, with significantly more prior convictions for more serious offences. The offence itself is seven years old and that is the result of the inability of the police to charge you, because of the lack of evidence upon which you may have been convicted. It was only as DNA investigations progressed and developed over the years that the police were able to return to that evidence and have further, more involved, tests completed which the Crown ultimately believed, gave them sufficient evidence on which a jury could have convicted you. That is no one's fault, but the offences, to a degree, age for those reasons.

There is no indication of remorse for your actions, you each maintain that you are not guilty of this offence and, accordingly, there can be no discount in the sentence for a plea of guilty or any indication of remorse.
The Crown have submitted that the appropriate sentence for Steven Wenitong, is a head sentence of life imprisonment, taking into account his prior convictions for armed robberies, which they, say show a violent disposition. I reject that argument. Whilst the sentence of Steven Wenitong must be more significant than the sentence of Nathan Berry, for the factors that I have already outlined, it does not warrant or fall within the category which would require the imposition of a life sentence. Such a sentence is reserved for the worst examples of the case, or one where the prior history of the person is such, that no other sentence could be appropriate. There may be other reasons as well, but none, in my view, come within the purview of this case.
Accordingly, taking into account all of the factors to which I have referred, on the one count of murder, I direct that you, Steven Wenitong, be convicted and sentenced to be imprisoned for a period of 26 years and direct that you are to serve a minimum of 20 years before being eligible for parole.
I direct that you Nathan Berry, be convicted and sentenced to be imprisoned for a period of 23 years and direct that you are to serve a minimum of 17 years before being eligible for parole.
I make the disposal orders as requested and in respect of pre-sentence detention I declare in respect of Steven Wenitong 594 days and in the case of Mr Berry 472 days.

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[2005] VSC 528

17 November 2005