R v Beruschi - [2007] VSCA 232

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 284 of 2006

THE QUEEN
	v
RYAN BERUSCHI

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JUDGES:	NEAVE and KELLAM JJA and CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2007
DATE OF JUDGMENT:	11 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 232	1^st Revision 26 October 2007 – [26]

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Criminal Law – Sentencing – Total effective sentence of five years and three months imprisonment for attempted armed robbery (three counts), intentionally causing serious injury, trafficking in a drug of dependence (ecstasy) and using a firearm in a dangerous manner, as well as ancillary firearms and drug offences – Appellant aged 19 at time of offences – Whether sentencing judge erred by giving insufficient weight to offender’s youth and immaturity – Whether orders for cumulation produced a total effective sentence which was manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr S Johns	Balmer & Associates Pty

NEAVE JA:

This is an appeal against the total effective sentence and the non-parole period imposed on the appellant, Ryan Beruschi. The appellant pleaded guilty in the County Court to three counts of attempted armed robbery, one count of intentionally causing serious injury, one count of common assault, one count of possessing an unregistered firearm, one count of trafficking in a drug of dependence, and two counts of possessing a drug of dependence in June 2006. In August 2006, the appellant also pleaded guilty to summary offences under ss 129 and 129A of the Firearms Act 1996. These were one count of using a firearm in a dangerous manner and one count of storing a firearm in an insecure manner while unlicensed.

The appellant was sentenced to the following periods of imprisonment:

Count 1 - attempted armed robbery:   two years and six months;
Count 2 - attempted armed robbery:   two years and six months;
Count 3 - attempted armed robbery:   two years and six months;
Count 4 - intentionally causing serious injury:   two years and six months;
Count 5 - common assault:   two months;
Count 6 - possessing an unregistered firearm:   six months;
Count 7 - trafficking in a drug of dependence:   twelve months;
Count 8 - possessing a drug of dependence:   $200; and
Count 9 - possession a drug of dependence:   $200.

The appellant was also sentenced to three months' imprisonment on each of the summary counts, namely, of using a firearm in a dangerous manner and storing a firearm in an insecure manner while unlicensed.

The learned sentencing judge ordered six months of the sentences imposed for counts 2 and 3, twelve months for count 4 and six months for count 7, together with three months of the sentence imposed for the summary offence of use of a firearm in a dangerous manner, were to be served cumulatively on count 1. This resulted in a total effective sentence of five years and three months' imprisonment. His…

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 Beruschi

Details

AGLC: R v Beruschi [2007] VSCA 232
Case: [2007] VSCA 232
Decision Date: 11 October 2007

CaseChat Overview and Summary

The case of R v Beruschi involved the appellant, who was convicted of multiple serious criminal offences. These included three counts of attempted armed robbery, intentionally causing serious injury, trafficking in a drug of dependence (ecstasy), and using a firearm in a dangerous manner. The appellant was also found guilty of ancillary firearms and drug offences. The appellant was 19 years old at the time of the commission of the offences. The appeal was directed against both the sentences imposed and the orders for cumulation, which determined the total effective sentence. The appeal was heard by the NSW Court of Criminal Appeal.

The central legal issues for the court were whether the sentencing judge erred by giving insufficient weight to the appellant's youth and immaturity and whether the orders for cumulation resulted in a total effective sentence that was manifestly excessive. The appellant argued that the sentencing judge did not adequately consider his young age and immaturity, which should have warranted a more lenient sentence. Additionally, the appellant contended that the total effective sentence of five years and three months was excessively harsh, particularly considering his age and the potential for rehabilitation.

In dismissing the appeal, the court found that the sentencing judge had appropriately considered the appellant's youth and immaturity. The court held that the judge had given due weight to these factors in the context of the seriousness of the offences and the need for deterrence and denunciation. The court further determined that the total effective sentence was not manifestly excessive, as it reflected the gravity of the crimes committed and the need to protect the community. The appeal was accordingly dismissed.

No further orders were made by the court beyond dismissing the appeal. The decision affirmed the sentences and orders for cumulation as appropriate, given the nature and circumstances of the offences.

Orders