Berryman v The the Queen - [2022] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA

AHURIRI ROHE

CRI-2022-441-000001

[2022] NZHC 544

TERRANCE JORDAN BERRYMAN

v

THE CROWN

Hearing: 22 March 2022

Appearances:

S Jefferson for the Applicant

Judgment:

23 March 2022

JUDGMENT OF GRICE J

(Sentence Appeal)

Introduction

[1] Terrence Berryman, the appellant, pleaded guilty to injuring with intent to injure and unlawful assembly. He was sentenced to 23 months’ imprisonment. He now appeals the sentence on the basis that the Judge erred in failing to exercise his discretion to commute the sentence to one of home detention.

Facts

[2] The appellant is the captain of the Redcoats chapter of the Mongrel Mob in Hawke’s Bay. The offending for which he was sentenced arose from a road rage incident involving the appellant’s father and the victim on 30 November 2019. The

BERRYMAN v THE CROWN [2022] NZHC 544 [23 March 2022]

appellant’s reaction to this was to make inquiries to determine who the victim was, and to confront him. He made some postings on social media to the effect that he was going to “smash his fucking head in”. On 2 December 2019 the appellant organised for a group of 18 members including himself to travel to Waimarama where the victim lived. All members were dressed in gang regalia or clothing that signalled they were members of, or supportive of the gang.

[3] At approximately 5:45 pm that evening the appellant and the rest of the group arrived at the victim’s address. The victim sighted the appellant from a window on the side of his property. The appellant approached and confronted the victim about the incident involving his father. He then tried to grab the victim through the window but missed. Meanwhile other members of the group had walked onto the property.

[4] The appellant and others entered the victim’s home, pushed past his partner and entered his bedroom. An assault ensued with members of the group punching the victim numerous times. The victim was subsequently pulled out of his bedroom and outside where he was subjected to more punching and kicking, struck with weapons, and his head was stomped on. It cannot be concluded who was directly responsible for the infliction of such violence.

[5] The group subsequently left the property and the appellant reportedly apologised as he did so, saying “I’m sorry I had to do this”.

[6] As a result of the offending the victim suffered serious injuries including a 10 cm laceration to his scalp, a burst eardrum, skull fracture, a cerebral haemorrhage which was described as a traumatic brain injury, bruising and significant pain.

[7] The appellant was subsequently sentenced to 23 months’ imprisonment on the charge of injuring with intent and concurrently to nine months’ imprisonment on the charge of unlawful assembly.

District Court decision

[8] The appellant appeared before the District Court alongside two co-offenders.1 All three pled guilty to charges of unlawful assembly and injuring with intent to injure, however none accepted…

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 Berryman v The the Queen

Details

AGLC: Berryman v The the Queen [2022] NZHC 544
Case: [2022] NZHC 544
Decision Date: 23 March 2022

CaseChat Overview and Summary

The appeal was brought by Terrence Jordan Berryman, the appellant, who had pleaded guilty to injuring with intent and unlawful assembly. The District Court had sentenced the appellant to 23 months’ imprisonment for injuring with intent and nine months’ imprisonment for unlawful assembly, to be served concurrently. The appellant appealed the sentence, arguing that the Judge erred in failing to exercise his discretion to commute the sentence to one of home detention.

The legal issue before the court was whether the Judge, in exercising his discretion to refuse a sentence of home detention, erred in doing so by placing too much weight on certain factors and failing to take into account other factors. The court had to consider the principles of sentencing and the discretion of the Judge in imposing a sentence.

The court found that the Judge had not erred in declining to commute the sentence of 23 months’ imprisonment to one of home detention. The Judge had considered whether to commute the sentence to one of home detention as required in the second step in R v Vhahva. The Judge acknowledged that the sentence fell to be considered. The court found that the Judge had made a "considered and principled choice" between home detention and imprisonment as per Fairbrother v R. The Judge had considered the principles and purposes of sentencing, including the seriousness of the offence, the degree of culpability of the offender, the effect of the offending on the victim, the personal background of the offender, and the outcomes of restorative justice processes. The Judge had also applied appropriate deductions for the guilty plea and the s 27 report. The court found that the sentence was not manifestly excessive and dismissed the appeal.

The court did not make any further orders.

Orders