27 March 2018
Before: Magistrate D Day
File Number(s): 2017/00149088 - Berryman
2017/00176988 - Woods
Source
Original judgment source is linked above.
Catchwords
27 March 2018
Before: Magistrate D Day
File Number(s): 2017/00149088 - Berryman2017/00176988 - Woods
Judgment (1 paragraphs)
[1]
HIS HONOUR: Samuel Woods and Kyle Berryman each appeal from a sentence imposed in the Local Court in relation to the same offence, being an offence of seriously injure and kill, while causing prolonged suffering to an animal, being a kangaroo, contrary to s 530(1) the Crimes Act 1900. The maximum penalty available for such an offence when prosecuted in the Local Court is two years imprisonment and/or a fine of $5,500.
Woods was sentenced on 27 March 2018 at Orange Local Court. The sentence imposed was one of two years imprisonment with a non‑parole period of 18 months.
Berryman was sentenced on 13 February 2018 to 20 month's imprisonment with a non‑parole period of 15 months. Mr Berryman appealed on the same day as he was sentenced, and has been on bail since that time until today.
In respect of Mr Woods, he has been in custody since 27 March 2018. In relation to each of the offenders having been dealt with on separate dates, and with some minor variations between the set of facts relied on, I will review in general the circumstances and nature of the offending.
Between 14 August and 15 August 2016, there was an incident concerning a kangaroo at Tomingley. A video using Snapchat was made of the offender's interaction with the kangaroo. The video contained images of an injured kangaroo and a single person, Woods, interacting with the kangaroo and the voice of the person recording the video, Berryman.
It begins with the film of an Eastern Grey kangaroo, small in size, with a bloodied nose, lying on its side with its chest propped upright and a visibly obvious knife protruding from the back of its head. The kangaroo is clearly still alive and aware as it moves its head. The kangaroo does not attempt to flee or defend itself as would be the normal flight response for a wild animal. It is likely to be already injured at the beginning of the video.
Berryman v R; Wood v R [2018] NSWDC 486 | Case summary | Zoe
However, the animal is clearly alive as evidenced when the knife is next removed from the kangaroo's skull by Woods, who then stomps on the kangaroo's neck in the process of removing the knife. The kangaroo moves its left forearm to try and support itself against the force of the blow. The knife is then forcefully thrown by Woods from a distance of about 1 to 2 metres at the head of the kangaroo, bouncing off the skull with a significant forceful impact. In the video, Woods has shown no fear of the injured kangaroo, nor has the kangaroo shown any aggression or intent to harm the person tormenting it.
Throughout this entire scene Berryman has been recording the incident. Berryman provides no assistance to the animal and makes no attempt to stop the knife throwing, and instead frequently encourages the violent behaviour towards the kangaroo.
Between this scene and the next there is a significant reduction of the mental capacity of the animal. The video then cuts to a second scene where the knife is again lodged in the head of the kangaroo. The kangaroo appears significantly more dazed in this scene, but it is clear that it is still holding its front end up, and is still alive. The knife is again thrown from a distance at the head of the live kangaroo lodging in the skull.
The audio captured in the video contains the following;
Berryman, "You all right mate?" Whilst the camera is moved up close to the kangaroo's face taunting the kangaroo with the knife in the back of its head.
Both offenders laugh as Woods places his foot on the back of the kangaroos neck and pulls the knife free.
Berryman states, "Go again, go again, quick", given as a command as the kangaroo tries to move after the knife is pulled free from its head and before the knife is thrown for the first recorded time.
At the beginning of the second clip, "Go now", given as a command, presumably to indicate the filming has begun again.
Laughter as the thrown knife impales the back of the head of the kangaroo with an audible splitting noise.
Also before the Court is a photo showing Woods posing with the kangaroo, a knife piercing the kangaroo's eye and socket. This shows clear mutilation of the kangaroo with multiple signs of trauma over the face, the infliction of which has not been recorded in the video. Given the degree of trauma to the head and the lack of movement, (whilst there appears to be movement blur of Woods holding the trophy pose) it is likely the kangaroo is dead at this stage. It is unknown if the knife wound to the eye is how the kangaroo finally died, or which injury finally killed it.
I have taken the above from the convenient summary of the video as provided by Dr Thomas Homewood, a veterinarian with the Royal Society for the Prevention of Cruelty to Animals, and I accept, although altered slightly from his description, that description as being an accurate description of the material.
Dr Homewood also opined,
"Based wholly or substantially on my specialised knowledge, I consider the kangaroo in this video has been unnecessarily and unjustifiably injured for the cruel amusement of the person filming the video, and the person throwing the knife at the injured kangaroo. The actions in the film are completely unjustified and do not fit with any known standard of humane euthanasia of injured wildlife, or what society would accept as reasonable treatment of an animal. The repeated throwing of the knife from a distance at the back of the kangaroo's head appears more like target practise than a genuine effort to relieve this animal's suffering, which could be achieved by a single cut with the knife across the front of the animal's neck."
Woods shows no fear of the kangaroo. The kangaroo itself shows no aggression towards him, so there is nothing to prevent humane euthanasia from being attempted. Berryman, by filming the video, has also participated in the inhumane treatment of the kangaroo by allowing and enjoying filming and encouraging the actions of Woods and then adding insult to injury by sharing it on social media.
Dr Homewood also opines,
"The kangaroo is not dead at the end of the video. Whilst I believe the repeated head trauma would eventually have caused its death, it would not have been quick, nor would it have been humane. This kangaroo has been unreasonably, unnecessarily and unjustifiably caused to suffer by being repeatedly wounded and tormented by the persons in this video."
The conduct of the offenders was brutal and sadistic, and totally lacking in any concern or empathy for the protracted pain and suffering being inflicted on a small and defenceless kangaroo. It is clear that each of the offenders was enjoying their conduct as entertainment, and at least Berryman believed it would entertain those to whom the Snapchat video was sent. That does not say much for his opinion of their associates.
In the circumstances, I regard the conduct as a very serious incident of conduct of this behaviour. I note that at the time each of the offenders was approximately 19 years of age, there being only approximately three weeks difference in their ages.
The offender Woods, ignoring his juvenile history, where there are a number of offences which were proved without conviction, has as an adult an offence of assault occasioning actual bodily harm with which he was charged on 15 May 2015 and in respect of which he received 18 months imprisonment suspended pursuant to entering a s 12 bond, the bond to run from the date of sentence, being 10 August 2015.
In addition, he was charged three months after the first offence with a further offence of common assault on 18 August 2015. That was dealt with by the Orange Local Court on 29 August 2016, and he received a period of 12 months imprisonment commencing on that date, 29 August 2016, again suspended on entering a s 12 bond.
In relation to each of those two offences, he was on the bonds at the time of committing this offence. There is a further charge in 2016 of common assault in relation to which he again received a 12 months s 12 bond. He otherwise has some irrelevant offences, such as not comply with conditions of licence and drive with a mid‑range PCA in 2016.
Kyle Berryman had not been convicted of any offences prior to this matter occurring. However he was charged with an offence on 23 April 2017 of affray, in relation to which he subsequently received in August of 2017 a fine of a not insignificant amount, being $1,200.
The fact that Mr Woods was subject to s 12 bonds is of course an aggravating circumstance; however he entered his plea of guilty in advance of the sentence hearing. In respect of Mr Berryman, he did not enter the plea of guilty until the day on which the matter had been listed for hearing. That is a very belated plea of guilty.
I have given close consideration to the conduct of each in relation to the offending. While Mr Woods was the one who physically carried out the gross and appalling conduct, he was being encouraged to do so by Mr Berryman. In my view, they each have an equal moral culpability in relation to the offending conduct. Although Mr Woods has a worse criminal history, and Mr Berryman had no previous conviction at the time, taking into account the different timing of the pleas, I am of the view that it would have been appropriate for each to have received a sentence of a very similar nature to the other, considering issues of parity.
In those circumstances, to achieve what I believe is an appropriate degree of parity, I intend to reduce the sentence that was imposed on Samuel Woods by four months to accord with the sentence that was imposed on Mr Berryman. I have also given consideration to the issue of special circumstances. Neither of the offenders has previously spent time in custody.
Both of them were 19 at the time of the offending. It is well known that individuals do not become sensible adults at the age of 18. Indeed, it has been long recognised that in relation to males, frequently maturity does not arrive until the early twenties. That would appear to be the case in respect of each of the offenders. Each has today expressed some degree of remorse or contrition.
I note in respect of Mr Berryman that the Pre-Sentence Report includes the following, that report being dated 8 February 2018, which is not long ago;
"Mr Berryman showed a lack of insight when asked about the offence, and did not appear to understand the gravity or impact that his behaviour would have had on the already distressed animal. Mr Berryman agreed with police facts, he showed little insight into his offending behaviour. Mr Berryman presented as somewhat immature and someone that may be easily influenced by his peers. Mr Berryman endeavoured to normalise his behaviour by stating he was euthanizing the animal, but admitted that he had not gone about it in an appropriate manner. Mr Berryman appeared to be more regretful that the incident had been filmed and shared to social media, than about the offence itself."
A report in respect of Mr Woods dated 14 February 2018, includes the following,
"With respect to the index matters the offender has stated that he should have dealt with the injured animal differently, and acknowledged his lack of judgment and poor choices. However provided an undertaking that he was unaware that he was being recorded and the images had been uploaded to social media at the time of the offence."
I note his subsequent claim that the reporting officer misunderstood him in relation to not being aware that he was being recorded. It is of course patently obvious that he was aware that he was being recorded, as in particular, during the video, he looks at the camera and in particular, in relation to the still photograph where he is holding the knife protruding through the eye socket of the kangaroo into its skull, he is also holding in his other hand a light, the beam of which is clearly being focused on the knife and the head of the animal in order to assist the video recorder to get a better shot which has been referred to, I think, appropriately, as a "trophy shot". His head is slightly obscured by movement, but it would appear that he is in fact smiling, although I would not be able to find beyond reasonable doubt that he was smiling.
I have taken into account all of the material that has been provided in relation to each of the offenders, and in particular the material provided as references in respect of Mr Berryman. Clearly, those who have provided references have never experienced him in the like circumstances of being alone at night with a friend with a wounded animal, as occurred on this occasion. As I have indicated the offending conduct was both brutal and sadistic and carried out for the entertainment of the offenders and their associates.
In the circumstances the s 5 threshold is clearly passed, in my view in both cases, and the sentence of imprisonment was appropriate. As I have already indicated, as a matter of parity, I intend to make an adjustment to the term of the sentence in respect of Mr Woods so that it is in agreement with the maximum period imposed on Mr Berryman.
In each case, I will find special circumstances, because in my view, not only is this their first period in custody, and both are young, but each in my view requires a longer period than would be allowed by the statutory relationship in order to assist them in returning to a useful life in the community, and also in my view to obtaining psychiatric assistance.
It has long been recognised that children, although neither of these offenders is a child, but it has long been recognised that children who show a lack of empathy to animals and torture them frequently go on to much more significant offending, and in my view, each of the offenders requires and would be assisted by some psychiatric treatment.
In each case, I intend, having found special circumstances to reduce the non‑parole period from the statutory relationship to a period of ten months. Accordingly, in respect of Mr Berryman a non‑parole period of ten months will commence today, 25 May 2018. I order that he be released at the conclusion of the non‑parole period, which will be about 24 March 2019. The balance of term is ten months and the full sentence of 20 months will expire on 24 January 2020.
In respect of Mr Woods, the non‑parole period of ten months will commence from the day he went in to custody on 27 March 2018, and I order his release on or about 26 January 2019 at the expiry of the non‑parole period. The balance of term is again ten months, and the sentence will expire on 26 November 2019.
So in each case the sentence is 20 months with a ten month non‑parole period, although the dates for starting and concluding are different.
In respect of when each is released on parole, I will leave it to the authorities to set the terms of any such release, but I note that in my view each of the offenders should be required to undertake psychiatric counselling.
Yes, all right, now is there anything I have omitted in that?
GIBSON: Nothing further from the Crown.
MANWARING: No, your Honour.
HIS HONOUR: All right, I'll adjourn.
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Decision last updated: 13 March 2019