BERRYMAN v THE CROWN [2022] NZHC 544

BERRYMAN v THE CROWN [2022] NZHC 544 [23 March 2022]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2022-441-000001[2022] NZHC 544TERRANCE JORDAN BERRYMANvTHE CROWNHearing: 22 March 2022Appearances: S Jefferson for the ApplicantJudgment: 23 March 2022JUDGMENT 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. Theappellant'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.1All three pled guilty to charges of unlawful assembly and injuring with intent to injure, however none accepted responsibility for the use of weapons, stomping and kicking on the victim.2[9] In sentencing the appellant, the Judge recognised that the appellant was the "prime motivator that led to all of this offending", 3 and that he was "singularly responsiblefor where it led". 4[10] The Judge accordingly adopted an overall starting point of three years and nine months' imprisonment and applied a six-month uplift to reflect the appellant's organiser role. His Honour then applied a 25 per cent deduction to that for a guilty plea and a further 30 per cent deduction for the factors included in the s 27 report.[11] This brought the appellant's overall sentence down to 23 months' imprisonment, which made him eligible for home detention. However, the Judge declined to commute the sentence to one of home detention. His Honour held: 5While I accept that Mr Berryman is extremely remorseful and wishes this did not happen, the fact remains that it did, the fact remains that he organised it, and the fact remains that he went there mob-handed where the very strong likelihood, in fact the certainty of the complainant being beaten in the sort of way that he was, was going to happen.I do not consider, in the public interest, that a sentence of home detention as far as he is concerned would be the least restrictive sentence[12] It is against this background that the appellant brings his appeal.The Principle[13] The appellant has a right to appeal against his sentence under s 244 of the Criminal Procedure Act 2011. The first appeal court must allow the appeal if it is1 R v Terrance Jordan Berryman [2022] NZDC 1387.2 At [2].3 At [6].4 At [30].5 At [42]–[43].satisfied that there was an error in the sentence imposed on conviction, and that a different sentence should be imposed. 6 In any other case the appeal must be dismissed.7 The appeal court will generally only intervene where the sentence is manifestly excessive.Issues[14] The issue before the Court is 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. There is also a sub-issue of "double counting" in that the appellant submits that the Judge used the same reasoning for applying a six-month uplift as he did for refusing to impose home detention – namely that the appellant was the organiser of the incident.[15] The matters relevant to the Court's assessment on appeal of whether home detention should be imposed in a case such as this are well established.[16] In R v Vhahva the Court of Appeal established the two-step process required for a sentence of home detention to be imposed.8 The sentencing Judge is required to first decide whether the sentence is appropriately a short-term one, and then secondly whether that sentence should be commuted to one of home detention.9 In effect, "the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment" (emphasis added).10[17] In R v Solomon Doogue J said: 11[22] While a Court must always impose the least restrictive outcome appropriate in the circumstances,12 unless expressly stated, there is no presumption in favour of home detention where a short-term sentence of imprisonment is determined to be appropriate.13 It is ultimately a matter of discretion and "an evaluative assessment if all the circumstances" is6 Criminal Procedure Act 2011, s 250(2).7 Section 250(3).8 R v Vhahva [2009] NZCA 588.9 At [31].10 At [29].11 Solomon v R [2019] NZHC 2915.12 Sentencing Act 2002, s 8(g).13 R v Stacey [2008] NZCA 465 at [21]; R v Vhavha, above n 8, at [29]; Osman v R [2010] NZCA 199 at [20]; Palmer v R [2016] NZCA 541 at [19].required.14 Nevertheless, the Court of Appeal has previously commented that home detention provides a real alternative to imprisonment.15 That is because it carries with it the principles of denunciation and deterrence.16[18] Lastly, in Fairbrother v R it was observed that home detention was a significant sentence in its own right, and it was deemed at the time of its introduction to be the "second most restrictive sentence able to be imposed". 17 The Judge was accordingly required to make "a considered and principled choice" between the home detention and imprisonment, recognising that both serve the principles of denunciation and deterrence, and "identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing". 18The case for Mr Berryman[19] The appellant appeals his sentence on the ground that the sentencing Judge erred in the exercise of his discretion not to impose a sentence of home detention, and that his Honour placed too much weight on certain factors and failed to take into account other relevant factors.[20] The appellant submits that while no issue is taken with the starting point, the uplift for organising the incident, and discounts of arriving at a sentence of 23 months imprisonment, the refusal to find that home detention was the least restrictive sentence was an error. Home detention was imposed on Mr Berryman's co-defendants.[21] Mr Jefferson for Mr Berryman put the issue succinctly in his submissions as that the single point is whether the Judge imposed the least restrictive sentence in the circumstance and whether he took an excessive approach by allowing too much weight to be attributed to Mr Berryman's admitted role as instigator of the incident. This he says should be taken in the contest of an extraordinary show of remorse after the event including the events at the restorative justice conference which were unusually positive.14 R v Risschop [2008] NZCA 229 at [18]–[19].15 R v Iosefa [2008] NZCA 453.16 R v Ismail [2016] NZHC 79 at [45].17 Fairbrother v R [2013] NZCA 340 at [28].18 At [30].[22] The points made in support of that primary submission are that the Judge had imposed an uplift of 6 months on the appellant for organising the incident. There was no contest as to the fact he was the instigator but by refusing to impose home detention because Mr Berryman organised the incidents the Judge used this factor twice in the sentencing process. Mr Jefferson, for the appellant, points out that home detention carries with it "in considerable measure, the principles of deterrence and denunciation...". 19[23] Therefore, the appellant says the Judge was in error in finding that home detention was not appropriate to address accountability, deterrence and denunciation. The Judge had recognised that Mr Berryman was extremely remorseful for his actions, had significant rehabilitative prospects, engaged in a positive restorative justice conference which the victim and his partner found beneficial and made an emotional harm reparation payment of $1300 as well as enduring the issues growing up that were set out in the multicultural assessment.[24] The appellant says the Judge applied too much weight to the consideration that the appellant organised the incident by giving both an uplift to the starting point and in refusing home detention. It was the least restrictive outcome in the circumstances and ought to have been imposed.Analysis[25] I do not accept the appellant's argument for the reasons I will now provide.[26] First, the Judge did consider 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. His Honour accepted that the appellant was extremely remorseful but correctly pointed out that "the fact remains that it did, the fact remains that he organised it and the fact remains that he went there mob- handed". 20 It was open to the Judge to make that assessment, even if it were the case that another Judge may have chosen home detention in the same circumstances. 2119 R v Iosefa, above n 15, at [41].20 R v Terrance Jordan Berryman, above n 1, at [42].21 See Solomon v R [2019] NZHC 2915 at [29].In fact it is difficult to consider a clearer example of premeditation and planning, exacerbated by the organisation and the fact that the 18 strong contingent mustered by the appellant wore gang regalia or colours. The assault was extremely serious and played out in the manner the appellant had contemplated. As the Judge said, the "realities of this situation have to be borne in mind".22[27] Secondly, as to the appellant's submission that the Judge placed too much weight on certain factors and not enough on others, the Judge did make a "considered and principled choice" between home detention and imprisonment as per Fairbrother v R.[28] In his assessment the Judge was careful not to attribute anything to them that had not been proven against the appellant and his co-offenders, 23 but recognised that what occurred was "deliberate, calculated and pre-planned". 24 His Honour also assessed that it was a "significantly bad display of gang violence" 25 at the same time recognising that the appellant had tried to offer assistance to the victim and attended a restorative justice meeting with the victim. He also noted that the appellant was extremely remorseful and that if he could "wind the clock back, [he] would".26 The Judge also applied appropriate deductions, such as 30 per cent for the s 27 report even though he noted that "the sort of terrible backgrounds that the Court commonly sees through s 27 reports is not really there". 27 He also applied a 25 per cent deduction for the guilty plea even though the appellant had initially denied playing a major part in the offending despite having organised it.[29] These considerations reflect the principles and purposes of sentencing such as the seriousness of the offence, 28 the degree of culpability of the offender, 29 taking into account any information to the court concerning the effect of the offending on the victim,30 taking into account any particular circumstances of the offender and his22 R v Terrance Jordan Berryman, above n 1, at [41].23 At [4].24 At [8].25 At [30].26 At [36].27 At [39].28 Sentencing Act 2002, s 8(f).29 Section 8(a).30 Section 8(f).personal background, 31 and taking into account any outcomes of restorative justice processes as well. 32[30] Although the ultimate conclusion in refusing a sentence of home detention instead of imprisonment was attributed to the public interest, the Judge's reasoning was actually based on an assessment of a range of personal factors which is reflected in the end sentence. The realities of the situation as he put it, are reflected in his exercise of discretion – the appellants role and the seriousness of the offending were appropriate factors to take into account. It may be that another Judge would have exercised the discretion on the same set of facts and circumstances to favour home detention, however that does not make the outcome manifestly excessive in this case.[31] In effect the Judge considered there had to be a difference between the sentences of the appellant who organised the offending, and those that had followed his lead as 'foot soldiers' (co-offenders). 33[32] An uplift was inevitably imposed on the sentence of the appellant solely due to his "organiser role which places him in a far more serious category". 34 However, the decision to refuse home detention was not solely based on this factor. The primary consideration for the Judge was the public interest and the wider dynamics of the offending including, but not limited to, his role. The Judge carefully considered all those factors and importantly the principles of deterrence, denunciation and accountability.[33] I also note that the PAC report, though not acknowledged in the Judge's sentencing notes, recommended a sentence of imprisonment in order to "promote a sense of responsibility and acknowledgement of harm from Mr Berryman". The Judge has reached the same conclusion as those recommendations in the report. He subsequently imposed the suggested release conditions also.31 Section 8(h) and (i).32 Section 8(j).33 R v Terrance Jordan Berryman, above n 1, at [45].34 At [34].[34] In conclusion the Judge made no error in declining to commute the sentence of 23 months' imprisonment to one of home detention. The sentence is not manifestly excessive. The appeal is dismissed.___________________ Grice JSolicitors:Scott Jefferson Barrister, NapierElvidge and Partners, Napier