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Court of Criminal Appeal 7 November 2000

R v Berry

[2000] NSWCCA 451

Assault & violenceTraffic & drivingDomestic & family violence
CROWN APPEAL AGAINST SENTENCE

Citation: R v Berry [2000] NSWCCA 451
Court: NSW Court of Criminal Appeal
Date: 7 November 2000
Judge(s): Sheller JA, James J, Dowd J

Background

The respondent pleaded guilty in the District Court to one charge of maliciously inflicting grievous bodily harm. The offence occurred on New Year's Eve 1998 to 1999, when the respondent deliberately drove his vehicle onto the wrong side of the road at nearly 50 kilometres per hour in the direction of his former de facto partner, striking her during a confrontation in a Taree street called Bushland Drive.

The victim sustained serious injuries including fractures to her left wrist requiring surgery, scarring near her left eye, and a knee injury that prevented bending. She was hospitalised for approximately one week. The respondent had no prior criminal history, was found to be contrite, and had been a present and involved father to the couple's two young children.

District Court Judge Mahoney sentenced the respondent to two and a half years' imprisonment with a six-month non-parole period, to be served by way of periodic detention. The Director of Public Prosecutions appealed that sentence as manifestly inadequate.

  • Whether the sentencing judge erred by imposing periodic detention rather than full-time custody for an objectively serious offence of maliciously inflicting grievous bodily harm
  • What weight should be given to the victim's expressed preference that the respondent not be imprisoned, in a domestic violence context
  • Whether general deterrence required a sentence of full-time custody, notwithstanding the respondent's favourable subjective circumstances

Decision

James J (with whom Sheller JA and Dowd J agreed) found that the sentencing judge had erred in not imposing full-time custody. The offence involved the respondent deliberately driving his vehicle across to the wrong side of the road, accelerating toward his former partner. James J characterised the objective gravity of the offence as requiring full-time imprisonment.

On the question of the victim's wishes, the Court held that little or no weight could be attached to the victim's stated desire that the respondent not be imprisoned. In cases of domestic violence, general deterrence is a dominant sentencing consideration that overrides a victim's personal preference for leniency.

The Court acknowledged the respondent's genuine mitigating factors, including his clear criminal record, contrition, early plea of guilty (entered promptly after the charge was reduced from a more serious offence), and his role as a father. It also took into account that he had already served some periods of periodic detention and that double jeopardy considerations applied because this was a re-sentencing following a successful Crown appeal.

Balancing those factors against the objective seriousness of the offence, the Court re-sentenced the respondent to 18 months' imprisonment, to be served by way of full-time custody, with a nine-month non-parole period.

Orders Made

  • Appeal allowed
  • Sentence imposed by Judge Mahoney on 31 May 2000 quashed
  • Respondent re-sentenced to 18 months' imprisonment with a non-parole period of nine months, commencing 7 November 2000
  • Respondent to be released on parole at the end of the non-parole period

Key Takeaways

  • The Court of Criminal Appeal confirmed that the objective gravity of deliberately driving a vehicle at a person in a domestic dispute required a sentence of full-time custody, not periodic detention.
  • In domestic violence sentencing, general deterrence carries significant weight and diminishes the relevance of a victim's personal preference that the offender not be imprisoned, consistent with the principle in R v Rowe (1996) 59 A Crim R 467.
  • Favourable subjective features, including a clean record, contrition, and an early guilty plea, did not outweigh the seriousness of a reckless vehicular attack causing grievous bodily harm.
  • Where a Crown appeal succeeds and a court re-sentences, double jeopardy considerations are a relevant factor in arriving at the substituted sentence; the Court here imposed 18 months rather than a longer term partly in recognition of those considerations and the periodic detention already served.
  • Under s 5 of the Crimes Act, an act is done "maliciously" if done with reckless indifference to human life or suffering, including where the offender foresaw that physical harm might result and persisted in the conduct regardless.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act, s 5D (Crown appeal against sentence)
- Crimes Act, s 35(b) (maliciously inflict grievous bodily harm: maximum seven years' imprisonment)
- Crimes Act, s 5 (definition of "maliciously")

Cases:
- R v Rowe (1996) 59 A Crim R 467 (weight of victim's wishes in domestic violence sentencing)