R v Berry [2000] NSWCCA 451

Reported Decision : [2000] 32 MVR 405

New South Wales Court of Criminal Appeal

CITATION : R v Berry [2000] NSWCCA 451 FILE NUMBER(S) : CCA 60461/00 HEARING DATE(S) : 26/10/00 JUDGMENT DATE : 7 November 2000

PARTIES : Regina v Michael Leslie Berry JUDGMENT OF : Sheller JA at 1; James J at 2; Dowd J at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0483 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

COUNSEL : R D Cogswell SC - Crown T M Healey - Respondent SOLICITORS : S E O'Connor - Crown Stacks - Respondent CATCHWORDS : Crown appeal against sentence - maliciously inflict grievous bodily harm - reckless driving of vehicle in direction of victim DECISION : Appeal allowed

IN THE COURT OF CRIMINAL APPEAL 60461/00 Sheller JA James J Dowd J

Tuesday 7 November 2000 REGINA v Michael Leslie BERRY

JUDGMENT

1 SHELLER JA: I agree with James J. 2 JAMES J: This is an appeal by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act against a sentence imposed on the respondent Michael Leslie Berry by his Honour Judge Mahoney QC in the District Court on 31 May 2000, after the respondent had pleaded guilty to one charge of maliciously inflicting grievous bodily harm. His Honour sentenced the respondent to imprisonment for two and a half years, setting a non-parole period of six months, and ordered that the sentence be served by way of periodic detention. On 17 June 2000 a letter was served on the respondent notifying him that the Director of Public Prosecutions was considering a Crown appeal against sentence. A notice of appeal was filed on 20 July 2000 and served on 22 July 2000. Under s 35(b) of the Crimes Act the maximum penalty for the offence of maliciously inflicting grievous bodily harm is imprisonment for seven years. 3 The victim of the offence was a woman with whom the respondent had at various times been in a de facto relationship. The offence was committed on the night of 31 December and 1 January 1999, when a motor vehicle driven by the respondent collided with the victim, injuring her. 4 In his remarks on sentence his Honour found that the relationship between the respondent and the victim had lasted a number of years, that there had been two children of the relationship who, at the time of sentencing, were five years old and two years old, that the relationship had been volatile and unstable and that the offence had been committed during one of the breaks in the relationship. In evidence given in the proceedings on sentence the victim said that she was then contemplating resuming the relationship. 5 The following brief statement of the facts of the offence is taken from his Honour's remarks on sentence and from a statement of the facts of the offence prepared by a police officer which was admitted into evidence, without objection, in the proceedings on sentence and which his Honour clearly accepted. 6 On the evening of 31 December 1998 the respondent and the victim went separately, with friends, to a New Year's eve party at a club in Forster. The victim was with a man with whom she had recently formed a relationship. There was friction between the respondent and the victim at the club. Subsequently, the respondent and the victim returned separately to Taree. The victim and her new male friend parked their car close to where the respondent was. This led to more friction between the respondent and the victim. Each of the respondent and the victim departed from this place and the vehicles in which they were separately travelling ended up in a street near Taree known as Bushland Drive. 7 In Bushland Drive the victim got out of the car in which she had been travelling and walked out on to the roadway. The respondent then started driving his vehicle in the general direction of the victim but at this stage on his correct side of the road, the victim being on the other side of the road. The headlights of the respondent's vehicle were on. 8 As the respondent approached the victim, he increased the speed of his vehicle to a speed of nearly 50 kilometres per hour. The respondent deliberately drove his vehicle on to the incorrect side of the road, being the side of the road on which the victim was. 9 The respondent claimed in his evidence in the proceedings on sentence that the victim was carrying a bottle and that he was afraid that the victim would damage the respondent's vehicle with the bottle. The respondent also claimed in his evidence that the victim walked into the path of the respondent's vehicle. 10 A collision ensued between the respondent's vehicle and the victim. The front nearside corner of the respondent's vehicle struck the victim, the nearside of the respondent's vehicle brushed past the victim and the nearside rear vision mirror on the respondent's vehicle struck the victim in the face. 11 After the collision had occurred, the respondent stopped his vehicle, went to the aid of the victim, summoned assistance and remained with the victim until assistance arrived. 12 The victim was admitted to hospital after the incident, underwent surgery, including surgery to repair fractures to her left wrist, and she remained in hospital for about a week. His Honour found that the victim had suffered "quite significant physical injuries", including a permanent injury to her left wrist, scarring in the region of her left eye and an injury to her right knee which prevented her bending the knee. 13 The offence for which his Honour was sentencing the respondent was "maliciously" inflicting grievous bodily harm on the victim. Under s 5 of the Crimes Act an act is done maliciously, if it is done with indifference to human life or suffering or with intent to injure or recklessly, that is with foresight on the part of the offender that some physical harm might be caused by his conduct and perseverance by the offender in that conduct. 14 In his remarks on sentence the sentencing judge noted that the Crown had accepted the plea of guilty to an offence under s 35(b) "upon the basis that there was no specific intent on the part of the offender to run her down but merely after deliberately putting his vehicle on its incorrect side of the roadway and on to the same side of the road as the victim that he had driven in a manner which was reckless and indifferent to whatever consequence might be visited upon her". His Honour found that the respondent's intent in driving the vehicle fell "significantly short" of "mowing his victim down". 15 His Honour found that the victim was not "a random innocent victim" and had "legitimately" been perceived by the respondent as likely to throw a bottle at his car. Indeed, his Honour was critical of the victim for having left the safety of the car in which she had been and having gone on foot out on to the roadway, "all the while brandishing a bottle". On the other hand, his Honour would appear not to have accepted the assertion made by the respondent that the victim had stepped into the path of the respondent's vehicle. 16 His Honour concluded that the offence committed by the respondent was "objectively serious". 17 The respondent was arrested on the same day as that on which the offence was committed, that is 1 January 1999. The respondent remained in custody for four or five days, until he was released on bail. The respondent then remained at liberty on bail, until he was sentenced. 18 The respondent entered a plea of guilty on 29 May 2000. His Honour found that the plea of guilty was an early plea of guilty, in that it had been entered promptly after the charge against the respondent had been reduced from an earlier charge alleging a more serious offence. 19 The respondent was born on 5 June 1967 and was accordingly thirty-one years old at the time of the offence and thirty-three years old at the time he was sentenced. The respondent was described by his Honour in his remarks on sentence as "young" or at least as "relatively youthful". His Honour found that the respondent was contrite. A matter of some significance was that the respondent had no previous criminal history whatever, not even a traffic offence. The respondent had been a good father to the two children of himself and the victim and had been involved in the care of the children. The victim's mother and her de facto husband, the latter of whom particularly impressed the sentencing judge, gave evidence at the proceedings on sentence that they were prepared to look after the children, if the respondent was unable to do so. 20 His Honour found in his remarks on sentence that, if the respondent was imprisoned, he would be at risk of being physically harmed by relatives of the victim who were serving prisoners and also from other prisoners generally, by reason of the respondent's mother and sister both being employees of the Corrective Services Commission. 21 In the proceedings on sentence the representative of the Crown submitted that, while the present offence was not an offence of dangerous driving causing grievous bodily harm under s 52A of the Crimes Act, some guidance could nevertheless be obtained from the guideline judgment of the Court of Criminal Appeal in R v Jurisic (1998) 45 NSWLR 209, a guideline judgment for the sentencing of offenders for dangerous driving causing grievous bodily harm or death. It was submitted that in his driving of his vehicle the respondent had "abandoned responsibility" and hence a period of two years would be an appropriate starting point in the determination of a proper sentence. See Jurisic at p 231 per Spigelman CJ. 22 The sentencing judge accepted that guidance could be obtained from Jurisic, accepted that there had been an abandonment of responsibility by the respondent in his driving of his vehicle, accepted that a period of two years would be an appropriate starting point and found that "something in addition to a minimum of two years is appropriate". By this process his Honour arrived at a total sentence of two and a half years. 23 His Honour also found that the offence was an offence of domestic violence and recognised that there is a need for both general and personal deterrence in sentencing for a crime of domestic violence. 24 His Honour found that there were special circumstances within s44(2) of the Crimes (Sentencing Procedure) Act. What his Honour considered these special circumstances to be were stated in different ways in different places in his Honour's remarks on sentence. The circumstances identified by his Honour included the threat of physical harm to the respondent if he was imprisoned; the likelihood of any sentence of imprisonment being served on protection; the brief period of time during which any premeditation on the part of the respondent had existed; the circumstances that after the collision the respondent had stopped his vehicle, gone to the aid of the victim and remained at the scene of the collision, instead of decamping; that the respondent was a "young" offender; the respondent's contrition; the respondent's lack of any previous criminal history; the respondent's relationship with the victim; the respondent's above average prospects of rehabilitation. 25 On the hearing of this appeal it was submitted on behalf of the Director of Public Prosecutions that the sentencing judge had erred in finding that there were special circumstances, in that a number of the factors identified by the sentencing judge as being "special circumstances" were merely favourable subjective features and were not capable of amounting to special circumstances, or, alternatively, the sentencing judge had erred in passing a sentence in which the non-parole period was such a small proportion of the total sentence. It was also submitted that, having regard to the objective gravity of the offence, the sentencing judge had erred in finding, as the sentencing judge must impliedly have done in order validly to have made an order for periodic detention, that it was appropriate in all the circumstances that the sentence be served by way of periodic detention (Crimes (Sentencing Procedure) Act s66(1)(c). It was submitted that his Honour was not entitled to regard the respondent's "youth" as a mitigating factor or as a special circumstance, when the respondent was more than thirty years old at the time of committing the offence. Counsel for the respondent disputed the submissions made on behalf of the Director of Public Prosecutions. 26 At the hearing of the appeal counsel for the respondent indicated that he would seek to rely on evidence of what had happened since Judge Mahoney sentenced the respondent and an affidavit by the respondent was handed up to the Court. Counsel for the Director of Public Prosecutions said that the Director would need time in which to investigate the assertions made by the respondent in his affidavit and to determine whether the Crown should seek to have the respondent cross-examined on his affidavit and whether the Crown should itself adduce evidence in reply to the respondent's affidavit. It was, accordingly, necessary to adjourn the hearing of the appeal. After the appeal was adjourned counsel for the respondent informed the Court that he no longer wished to rely on the respondent's affidavit. In these circumstances, I will disregard the affidavit by the respondent which was handed up in Court. 27 It was common ground at the hearing that the respondent had up to the time of the hearing served thirteen periods of periodic detention. He had missed six periods, for four of which there was medical evidence to excuse his non-attendance and for the other two of which medical evidence might be forthcoming. 28 The principles to be applied by a Court of Criminal Appeal in determining a Crown appeal against sentence are well established and need not be set out here. See R v Allpass (1993) 72 A Crim R 561 at 562-3, R v Baker (unreported 2000 NSW CCA 85) at par 19, Lowndes v The Queen (1999) 195 CLR 665 at 671-2, Dinsdale v The Queen (unreported 2000 HCA 54) per Kirby J at pars 57-62. 29 In my opinion, some of the matters which his Honour regarded as being special circumstances, including the respondent's age, could not properly have been regarded by his Honour as special circumstances. However, some of the matters relied on by his Honour, including that any custodial sentence imposed by his Honour would be served on protection, were matters which could properly be regarded as amounting to special circumstances and would, of themselves, have warranted a finding of special circumstances. So much was conceded by the Crown on the hearing of the appeal. Accordingly, I do not consider that his Honour erred in finding that there were special circumstances and I would myself consider that there were special circumstances. 30 I am, however, of the opinion that, having regard to the objective gravity of the offence and even after making full allowance for the favourable subjective circumstances, his Honour erred in setting a non-parole period of only six months in a total sentence of two and a half years and erred in finding that it was appropriate in all the circumstances that the sentence be served by way of periodic detention. A sentence to be served by way of periodic detention is substantially more lenient than a sentence of imprisonment for the same period to be served by way of full-time custody R v Hallocoglu (1992) 29 NSWLR 67 at 74. 31 His Honour himself found that the offence committed by the respondent was "objectively serious". The respondent, with knowledge of the presence of the victim on the road, deliberately drove his vehicle on to the wrong side of the road, being the side of the road on which the victim was standing, and increased the speed of his vehicle to nearly 50 kilometres per hour. Although his Honour found that the respondent did not deliberately drive his vehicle into the victim, his Honour found, consistently with the plea of guilty to a charge of maliciously causing grievous bodily harm, that the respondent drove his vehicle recklessly and with indifference to whether he caused injury to the victim. His Honour rejected the respondent's assertion that the victim had stepped into the path of the respondent's vehicle. The victim was struck by the vehicle and received serious bodily injuries, including fractures and scarring, which required hospitalisation. In my opinion, the objective gravity of the offence required that a sentence of full-time custody be imposed. 32 The victim gave evidence in the proceedings on sentence, in response to a question asked by his Honour, that she would not want the respondent to go to gaol. However, because of the importance of general deterrence in sentencing for offences of domestic violence, his Honour was required to give little, if any, weight to the circumstance that the victim of the offence did not want the respondent to go to gaol. See R v Rowe (1996) 59 A Crim R 467 at 472-3 per Hunt CJ at CL. 33 I have found that the Director of Public Prosecutions has succeeded in demonstrating error in the sentencing process. In my opinion, notwithstanding the respondent's favourable subjective features and the fact that the respondent has already served some periods of periodic detention, this Court should not, in the exercise of its discretion, decline to intervene. Accordingly, this Court should uphold the appeal, quash the sentence imposed by Judge Mahoney and re-sentence the respondent. 34 I have already set out the objective facts of the offence as found by his Honour and the subjective circumstances of the respondent. As I have already noted, no reliance is now placed on the affidavit by the respondent as to events allegedly occurring since he was sentenced. 35 In my opinion, having regard to all the circumstances of the case, including that the respondent has already served some periods of periodic detention and the Court is re-sentencing after a successful Crown appeal and must be mindful of considerations of double jeopardy, an appropriate sentence, to commence from the date of re-sentencing, would be a sentence of imprisonment for eighteen months, to be served by full-time custody, with a non-parole period of nine months. 36 I consider that the Court should make the following orders:-