Berrier v R - [2009] NSWCCA 40

New South Wales
Court of Criminal Appeal

CITATION: BERRIER, Steven John v R [2009] NSWCCA 40

HEARING DATE(S): 19 September 2008

JUDGMENT DATE:
27 February 2009

JUDGMENT OF: Giles JA at 1; Rothman J at 2; Price J at 44

DECISION:
(i) Leave to appeal be granted;
(ii) The appeal against sentence be dismissed.

CATCHWORDS: CRIMINAL LAW – sentence – manslaughter – no issues of principle – degree of seriousness depends on facts of particular offence – material considerations – no identifiable or manifest error – leave granted, appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported)
R v Dodd (1991) 57 A Crim R 349
R v Edwards (1996) 90 A Crim R 51
R v Hill (1981) 3 A Crim R 397
R v Isaacs (1997) 41 NSWLR 374
R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
Salah v R [2009] NSWCCA 2

PARTIES: Steven John Berrier (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2005/00003232

COUNSEL: G Bashir (Applicant)
D Arnott SC (Respondent)

SOLICITORS: Legal Aid Commission (Applicant)
Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1139

LOWER COURT JUDICIAL OFFICER: Hidden J

LOWER COURT DATE OF DECISION: 21 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION: R v Berrier [2006] NSWSC 1421

CCA 2005/3232

GILES JA
ROTHMAN J
PRICE J
27 FEBRUARY 2009

BERRIER, Steven John v R

Judgment

1 GILES JA: I agree with Rothman J.

2 ROTHMAN J: On 17 March 2006, a jury found Steven John Berrier not guilty of murder, but guilty of manslaughter. He had been charged with murder following the stabbing of Mr Lucas Bruin on 19 April 2004 at Prospect. Mr Berrier pleaded not guilty and was tried before Hidden J and a jury, the trial lasting just under four weeks.

3 The Crown asserted, at the trial, that Mr Berrier had stabbed Mr Bruin deliberately, with an intention to kill or to inflict grievous bodily harm, without provocation and not in self-defence. Mr Berrier conducted the trial on the basis that the stabbing was not intentional, and the evidence at the trial raised issues as to self-defence and/or provocation. His Honour directed the jury on, amongst other things, provocation, excessive self-defence and manslaughter by unlawful and dangerous act.

4 Justice Hidden sentenced Mr Berrier on 21 December 2006. He did so on the basis of provocation manslaughter, rejecting the submission of Mr Berrier that the sentence should be based on excessive self-defence, and accepting the Crown submission that Mr Berrier should be sentenced on the basis of provocation. His Honour Justice Hidden imposed a custodial sentence, being a non-parole period of 6 years, commencing 19 April 2004 and expiring on 18 April 2010, with a balance of term of 3 years, expiring on 18 April 2013.

5 Mr Berrier appeals the sentence imposed by Hidden J…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berrier v R

Details

AGLC: Berrier v R [2009] NSWCCA 40
Case: [2009] NSWCCA 40
Decision Date: 27 February 2009

CaseChat Overview and Summary

In the case of Berrier v R, the appellant, Berrier, was convicted of manslaughter and appealed against the severity of the sentence imposed. The appeal was heard in the High Court of Australia. The central issue before the Court was whether the sentence imposed by the lower court was manifestly excessive or unjust, given the degree of seriousness of the offence. The Court needed to consider whether the sentence was commensurate with the crime and whether there were any identifiable or manifest errors in the sentencing process.

The Court held that the degree of seriousness of an offence and the appropriate sentence depend on the specific facts of each case. The Court reviewed the material considerations, including the circumstances of the offence, the appellant's criminal history, and the sentencing principles outlined in previous cases. The Court concluded that there were no identifiable or manifest errors in the sentencing process and that the sentence was not manifestly excessive or unjust. The Court emphasised that each case must be assessed on its own merits, and the sentence should reflect the degree of seriousness inherent in the particular offence.

Accordingly, the Court granted leave to appeal but dismissed the appeal. The Court found that the lower court's assessment of the degree of seriousness and the sentence imposed were appropriate, and there was no basis to interfere with the sentence. The Court's decision underscores the importance of considering the unique facts of each case when assessing the seriousness of an offence and determining an appropriate sentence.

Orders