DPP v Berry [2013] VCC 1803 (14 November 2013)

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IN THE COUNTY COURT OF VICTORIA	Revised (Not) Restricted Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

V

CHRISTOPHER LEE BERRY

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2013
DATE OF SENTENCE:	14 November 2013
CASE MAY BE CITED AS:	DPP v Berry
MEDIUM NEUTRAL CITATION:	[2013] VCC 1803

Catchwords: Pleaded guilty; Sexual penetration of child under 16 x 2 (representative charges); common assault of 14 year old victim; age difference of 2 years and six years respectively; accused with no prior convictions, young, dysfunctional background, abuse of drugs and alcohol throughout teenage years; reasonable prospects for rehabilitation;

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr W. Stougiannos	Office of Public Prosecutions

For the Accused	Mr G. Thomas

1 Christopher Lee Berry, you have pleaded guilty to several charges on two indictments comprising two charges of sexual penetration of a child under 16 and one charge of common assault. These are serious crimes and having taken into account all the circumstances I have concluded that a term of imprisonment is the only appropriate sentence to impose and I shall explain my reasons.

2 The victim in relation to the first indictment (CR-13-00128 C1225645.1) was Anna Alexander (pseudonym), a 14 year old girl, with whom you began a relationship in 2009 when you were aged 17. You were staying at a friend's house and the complainant stayed overnight with you several times. The relationship lasted for about eight months during which the two of you had sex many times. Hence the charge is a representative one. When arrested and interviewed by the police, you denied that allegations.

3 The victim in relation to the second indictment (CR-13-00492 C1225645.5) was Brittany Acosta (pseudonym), who was aged 14. You were then aged 20 and the two of you had a sexual relationship over a two week period commencing in April 2012. Accordingly that charge is also a representative one. You were also charged with assaulting her. Your brief relationship was characterised by violent controlling behaviour which was referred to in the agreed prosecution summary and which prompted Ms Acosta to end the relationship.

4 You then went to her school, together with two men who have not been identified, and you approached her and argued with her and punched her twice, once to her eye and once to her jaw. As she tried to walk away you grabbed her jumper, causing her to fall to the ground. While she was on the ground you kicked her to the rib and hip areas. She tried to crawl away and you grabbed her foot and dragged her back towards you. You then left.

5 She was taken to hospital and found to have bruising to her face and body. The photographs show bruising on both sides of her face and her left eye and particularly severe bruising on the left side of her abdomen, consistent with having been kicked there. Although these injuries were not serious and there is no evidence of any lasting harm, they resulted from a brutal attack, a display of appalling and reprehensible behaviour.

6 As I have said these are serious crimes. The maximum penalty for sexual penetration of a child under 16 is ten years, and for common assault, five years. You will be entitled to some discount on your sentence for having pleaded guilty even though it was at a very late stage, just as the trial was to begin, but importantly neither of the young complainants have been subjected to cross-examination, something you wanted to avoid.

7 There appears to have been some hindrance to the resolution of the case not of your making and I take that into account. The plea of guilty is also to be taken as an indication of remorse.

8 You are now aged 22, a single man with a dysfunctional background and having little in the way of appropriate adult role models. You never knew your real father which caused you to feel abandoned and you were subjected to an abusive stepfather as well as other abusive men. You left home at the age of 16 and led an unstable life staying in the homes of friends or sleeping in cars and with a disrupted employment history. You used alcohol and multiple illicit drugs throughout your teenage years until you were detained in custody for 33 days in August 2012.

9 You were bailed on condition that you be under the supervision of CISP, a program designed to assist those awaiting trial with drug and other problems. You ceased using drugs except for occasional cannabis use and have undergone intensive drug counselling with a plan for that to be followed up with psychological counselling. It is reported that you have responded well to having a case manager and to developing a plan for future employment. Your intention is to study construction at TAFE.

10 You are the father of a four year old girl who lives in Western Australian with her mother and you no longer know their whereabouts. You are still living in supported accommodation at Hanover House with your girlfriend. You are both on the Newstart allowance looking for work.

11 You recently saw Dr Aaron Cunningham who assessed you as being at low risk of sexual re-offending and specifically you do not meet the criteria for a paedophilic disorder. Dr Cunningham considers that your rehabilitation would be best served by you remaining at liberty in order to undertake training and employment as well as to benefit from having stable accommodation and an ongoing relationship. Your chance to take up those opportunities will have to be delayed until you have served your sentence.

12 As a young man with no prior convictions your rehabilitation remains an important factor in sentencing. I can place some weight on your reasonable prospects for rehabilitation because of the insight you appear to have developed. Indeed you told Dr Cunningham that you regretted having used drugs around such young people and you appear to want to live your life differently in future.

13 However there is little indication of remorse apart from your plea of guilty. Unfortunately you were convicted and fined in December last year for a number of dishonesty and driving offences, all connected with the unlicensed driving of a car with stolen number plates. You have now obtained your driving license for the first time and it may well be that you will be able to avoid unlawful behaviour in future.

14 Mr McQuillan, who appeared on your behalf on your plea, urged me to consider a lengthy community corrections order on the basis that a partly suspended sentence may have been appropriate but that sentencing disposition is no longer available in the circumstances of this case, owing to recent amendments to the Sentencing Act 1991. The attack on Brittany Acosta, the 14 year old girl with whom you had been having unlawful sex is of particular concern and in combination with the other two charges calls for a firm response from the courts by way of general deterrence. You were six years older than the girl, which is a considerable age gap and you knew how old she was. The age gap between yourself and Ms Alexander was only two years and you were a minor at the time. Both relationships were that of boyfriend and girlfriend.

15 As for specific deterrence, the need for it is reduced by reason of your good response to what might be called the early days of your rehabilitation and although a prison term is the only appropriate sentence, its length should be modified because of your youth and good prospects and the other mitigating factors I have taken into account.

17 Dealing with the first indictment (CR-13-00128 C1225645.1) I sentence you to 18 months imprisonment for the sexual penetration charge involving Ms Alexander.

18 As for the second indictment (CR-13-00492 C1225645.5) I sentence you to two years imprisonment for the charge of sexual penetration involving Ms Acosta and 12 months imprisonment for the charge of common assault.

19 The two year sentence will be the base sentence for purposes of cumulation and I order that six months of each of the other sentences be served in cumulation upon the base sentence. That results in a total effective sentence of three years and I order that you serve a minimum period of 12 months before being eligible for parole. In fixing both the head sentence and the minimum period I have taken into account the need for totality and proportionality and to avoid a sentence that would be crushing upon you.

20 You spent 33 days on remand following your arrest and I order that those days be declared as already served. I shall cause that to be noted on the court record.

21 The Sex Offenders Registration Act applies to you in relation to the charge involving Ms Acosta and you will be required to report your details to the police each year for 15 years. There is no such application in respect of the charge involving Ms Alexander as you were a minor at the time.

22 The prosecution seeks an order under s.464ZF of the Crimes Act that you provide a forensic sample of saliva and I will come back to that in a moment.

23 If you had been convicted after pleading not guilty to these charges I would have sentenced you to four years imprisonment with a non-parole period of two years.

25 Mr Thomas, I didn't get from Mr McQuillan any instructions as to whether the 464ZF application was opposed or - - -

28 Mr Thomas, Mr Berry will be invited to sign the Sex Offender's Registration in a moment, but I wonder if you would mind just alerting him afterwards to what's contained in that, and of course it operates from the time he's released.

32 MR STOUGIANNOS: No, Your Honour, you've covered all the matters that are relevant.

County Court of Victoria

DPP v Berry [2013] VCC 1803 (14 November 2013)