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District Court 25 May 2018

Berryman v R; Wood v R

[2018] NSWDC 486

Other
CRIMINAL SENTENCE APPEAL JUDGMENT PARITY

Citation: Berryman v R; Wood v R [2018] NSWDC 486
Court: District Court of New South Wales
Date: 25 May 2018
Judge(s): King SC DCJ

Background

Two co-offenders, both aged approximately 19 at the time, were separately sentenced in the Local Court for a single offence under s 530(1) of the Crimes Act 1900: seriously injuring and killing an animal while causing it prolonged suffering. The animal was a small Eastern Grey kangaroo. One offender (Woods) was the person who physically inflicted the injuries; the other (Berryman) filmed the incident on Snapchat, verbally encouraged the violence, and shared the footage on social media.

The offending occurred over the night of 14 to 15 August 2016 at Tomingley. A veterinarian engaged by the RSPCA reviewed the footage and concluded that the kangaroo had been repeatedly and unjustifiably wounded as a form of cruel amusement, and that its suffering was neither quick nor humane. The Local Court sentenced Woods to two years imprisonment with an 18-month non-parole period, and Berryman to 20 months with a 15-month non-parole period.

Both offenders appealed to the District Court. Berryman had been on bail since his Local Court sentence. Woods had been in custody since his sentence date of 27 March 2018.

  • Whether the sentences imposed by the Local Court were appropriate in the circumstances.
  • Whether the principle of parity required the sentences for the two co-offenders to be brought into alignment.
  • Whether the offender who filmed and encouraged the conduct bore equal moral culpability to the offender who physically carried out the violence.
  • Whether special circumstances existed justifying a departure from the statutory relationship between non-parole period and total sentence.

Decision

King SC DCJ described the offending as brutal, sadistic, and carried out entirely for the entertainment of the offenders and their associates. The court accepted the RSPCA veterinarian's evidence in full, finding that the repeated knife throwing bore no resemblance to humane euthanasia and instead prolonged the animal's suffering unnecessarily. The threshold under s 5 of the Crimes Act for imprisonment was clearly met in both cases.

On the question of moral culpability, the court found that, although Woods physically inflicted the injuries, Berryman's active encouragement, filming, and social media sharing placed him at an equal level of moral responsibility. The difference in the Local Court sentences was therefore inconsistent with the parity principle, which requires that co-offenders of equal culpability receive sentences that do not differ in a way that is unjust or produces a legitimate grievance.

To achieve parity, the court adjusted Woods' sentence downward to match the 20-month term already imposed on Berryman. The court also found special circumstances in both cases, warranting a non-parole period shorter than the statutory norm. Both offenders were young, this was their first custodial sentence, and the court considered each would benefit from an extended parole period to assist with reintegration and psychiatric treatment. The court noted, with evident concern, the well-recognised connection between childhood cruelty to animals and the risk of more serious offending in later life.

Orders Made

  • Both appeals resulted in sentences of 20 months imprisonment with a non-parole period of 10 months, with different commencement dates reflecting time already served.
  • Berryman: non-parole period of 10 months commencing 25 May 2018, expiring approximately 24 March 2019; balance of term 10 months; full sentence expiring 24 January 2020.
  • Woods: non-parole period of 10 months commencing 27 March 2018 (date first taken into custody), expiring approximately 26 January 2019; balance of term 10 months; full sentence expiring 26 November 2019.
  • Special circumstances found in each case, reducing the non-parole period below the statutory relationship.
  • The court noted that, upon release, each offender should be required to undertake psychiatric counselling, leaving the precise terms of parole to the relevant authorities.

Key Takeaways

  • The District Court confirmed that the parity principle applies equally where co-offenders are sentenced on different dates and in slightly different fact scenarios, provided their moral culpability is assessed as equal.
  • A person who films, verbally encourages, and shares footage of animal cruelty can bear equal moral culpability to the person who physically inflicts the harm, even where they do not directly touch the animal.
  • Under s 530(1) of the Crimes Act 1900, the maximum penalty in the Local Court is two years imprisonment and a fine of $5,500; the District Court treated the conduct here as among the most serious expressions of such offending.
  • Special circumstances justifying a reduction in the statutory non-parole period ratio can be established where offenders are young, have no prior custodial history, and require an extended parole period to support rehabilitation and access to psychiatric treatment.
  • In determining parity, the sentencing court considered not only the physical acts of each offender but also the role each played in facilitating, prolonging, and publicising the conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 530(1) (seriously injure and kill an animal while causing prolonged suffering)
- Crimes Act 1900 (NSW), s 12 (suspended sentence bonds, relevant to Woods' prior offences)
- Crimes Act 1900 (NSW), s 5 (threshold test for imposition of imprisonment)

Cases cited: No cases were cited in the judgment text provided.