Berryman v R [2017] NSWCCA 297

Berryman v R [2017] NSWCCA 297

The five-judge bench application was refused because existing authority supported applying the guilty plea discount to indicative sentences, the point was not taken below, was outside the notice of appeal, and was raised only shortly before the hearing. The manifest excess ground was made out: while the indicative sentences and their undiscounted starting points were not manifestly excessive, the aggregate sentence reflected insufficient notional concurrency for the offences committed in the afternoon of 12 July 2015. Those offences were discrete and involved different victims, but formed a short course of conduct within at most 90 minutes and probably less than 60 minutes, following...

Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate sentence of 10 years with a non-parole period of 6 years.
Legal Topics
['manifest Excess' 'aggregate Sentence' 'totality Principle' 'concurrency and Accumulation' 'guilty Plea Discount' 'application for Five Judge Bench']
['criminal Law' 'sentencing' 'criminal Appeals'] ['manifest Excess' 'aggregate Sentence' 'totality Principle' 'concurrency and Accumulation' 'guilty Plea Discount' 'application for Five Judge Bench']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the appeal should be adjourned to be heard by a court constituted by five judges because of the issue concerning application of the utilitarian discount for a guilty plea to aggregate sentences or indicative sentences.' 'Whether the aggregate sentence of 11 years and 3 months with a non-parole period of 7 years and 4 months was manifestly excessive.' 'Whether the indicative sentences or their undiscounted starting points were manifestly excessive.' 'Whether the notional accumulation of sentences failed properly to apply the totality principle.']

Ratio Decidendi

The five-judge bench application was refused because existing authority supported applying the guilty plea discount to indicative sentences, the point was not taken below, was outside the notice of appeal, and was raised only shortly before the hearing. The manifest excess ground was made out: while the indicative sentences and their undiscounted starting points were not manifestly excessive, the aggregate sentence reflected insufficient notional concurrency for the offences committed in the afternoon of 12 July 2015. Those offences were discrete and involved different victims, but formed a short course of conduct within at most 90 minutes and probably less than 60 minutes, following...

Court Disposition

Leave to appeal granted; appeal allowed; District Court sentence quashed; applicant resentenced to an aggregate sentence of 10 years with a non-parole period of 6 years.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Quash the sentence imposed by the District Court on 12 October 2016 and in lieu thereof sentence the Applicant for an aggregate sentence of 10 years commencing on 12 July 2015, with a non-parole period of 6 years. The applicant is eligible to apply to be released on...