R v Berrier

[2006] NSWSC 1421

CITATION:	R v Berrier [2006] NSWSC 1421
HEARING DATE(S):	27/02/2006 - 17/03/2006; 17/07/2006
JUDGMENT DATE :	21 December 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Hidden J
DECISION:	Sentenced to imprisonment for nine years, comprising a non-parole period of six years, commencing on 19 April 2004 and expiring on 18 April 2010, and a balance of term of three years, commencing on 19 April 2010 and expiring on 18 April 2013.
CATCHWORDS:	CRIMINAL LAW: - sentence - manslaughter - after trial for murder - provocation
PARTIES:	Regina (Crown) Steven John Berrier (offender)
FILE NUMBER(S):	SC 2005/1139
COUNSEL:	G Tabuteau (Crown) A Cook (offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Bell Lawyers (offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL JURISDICTION

HIDDEN J

Thursday 21 December 2006

2005/1139 Regina v Steven John Berrier

REMARKS ON SENTENCE

1 HIS HONOUR: The offender, Stephen John Berrier, was tried before me for the murder of Lucas Bruin at Prospect on 19 April 2004. The jury found him not guilty of murder but guilty of manslaughter. Manslaughter had been left to them on three bases: lack of the intent requisite for murder, excessive self-defence and provocation. Excessive self-defence and provocation were the principal issues, and it is accepted that he should be sentenced on one or other of those bases. Which one, however, is a matter in contest.

Facts

2 At the relevant time the offender was in a relationship with Leanne Pearce, and they had a child, Kai. Ms Pearce had previously been in a relationship with one Bradley Flynn, and that relationship had produced a child, Jake. The deceased, Lucas Bruin, was a close friend of Mr Flynn. There had been animosity between the offender and the deceased, apparently as a result of these intertwining relationships.

3 It is not necessary to examine that animosity or the evidence led to demonstrate it. I accept that there had been incidents of abusive or threatening behaviour by the deceased directed at the offender. However, it is of significance that before the killing the deceased became aware of an allegation that the offender had mistreated the child, Jake. The offender had contact with Jake from time to time through his relationship with Ms Pearce. Mr Flynn, the child’s father, was serving a term of imprisonment at the time. It is against this background that the events of 19 April 2004 must be understood.

4 At the time Leanne Pearce was living with her mother at a house near where the killing took place. In the afternoon of 19 April 2004 the offender and Ms Pearce were walking in that general vicinity, with the child, Jake in a pram. The deceased approached and confronted the offender, accusing him of having hit the child. There was a fight, the detail of which need not be examined. It is sufficient to say that the two men exchanged punches. The fight ended and the deceased walked to another house in the vicinity, occupied by the Todd family.

5 Ms Pearce was angry with the deceased for fighting in front of the child and, a little later, she went to the Todds’ house to confront him about the matter. The offender went to the house where Ms Pearce was living and obtained a knife. What happened thereafter was the subject of a great deal of evidence at the trial. The offender stabbed the deceased, wounding him fatally. The course of events leading to the stabbing can be summarised briefly, but attention needs to be given to the evidence about the stabbing itself.

6 The offender approached the Todds’ house. The deceased asked him if he wanted another fight. It seems that he did not see the knife as the offender had it concealed in his sleeve. The deceased picked up a piece of wood and chased the offender. At that time a car driven by the offender’s father turned into the street, and the deceased had to jump clear of its path. The deceased returned to the front of the Todds’ house, and it is the evidence of what then ensued which is in dispute.

7 The offender’s case at the trial was that he had gone to the Todds’ house out of concern for Leanne Pearce, and that he had carried a knife for his own protection because he was fearful of the deceased. He described being chased by the deceased and he said that, after the deceased walked back to the front of the Todds’ house, he also walked to that area. According to him, it was then that the deceased seized a piece of wood, chased him a short distance and swung the piece of wood towards him. He turned towards the deceased and produced the knife, holding it in front of him so as to persuade the deceased to “back off”. The effect of his evidence was that the deceased impaled himself upon the knife.

8 The offender’s evidence raised an issue whether the wounding of the deceased was the result of a voluntary act on his part. Clearly, the jury resolved that issue against him. The question remains whether he should be dealt with substantially upon the basis of his account of the circumstances of the stabbing, accepting it to have been a voluntary act. His counsel, Mr Cook, submitted that he should be sentenced upon the basis that he was acting to defend himself but his response was not reasonable in the circumstances as he perceived them: s421 of the Crimes Act.

9 The Crown prosecutor submitted that I should reject the offender’s account, in the light of eyewitness evidence in the Crown case. The witnesses upon whom the Crown prosecutor relied were all in the immediate vicinity at the time of the stabbing. The effect of their evidence is that the deceased, who had apparently discarded the piece of wood with which he initially chased the offender, was bending down in the front yard of the Todds’ house, trying to break a branch which was lying on the ground. The offender approached him from behind and several of the onlookers called out to the deceased, warning him to look behind him. The deceased turned to face the offender, holding nothing in his hands, and the offender stabbed him. All the witnesses described one or more stabbing actions, although several of them did not see the knife at that moment.

10 The witnesses were Keith Todd, his daughters, Lisa and Kate, Joanne Furner, Cassandra Michie and Timothy Dodds. I did not find Ms Michie and Mr Dodds to be reliable witnesses. Ms Furner was clearly sympathetic to the deceased and, while I would not for one moment criticize her for that, I had reservations about her objectivity. However, the other witnesses, who were acquainted with the deceased but not close to him, impressed me as honest and reliable in essential respects.

11 Mr Cook relied upon the fact that most of the witnesses, including Keith and Kate Todd, described seeing two stabbing motions. Timothy Dodds claimed to have seen three. Only Lisa Todd said that she saw one. In the light of the evidence of the forensic pathologist who examined the deceased, I am satisfied that the knife penetrated his body only once. It may be that the offender thrust the knife towards the deceased twice but only one blow hit its mark. Equally, it may be that all the witnesses except Lisa Todd were mistaken about the number of blows they saw. If that be so, it would not cause me to reject the core of their evidence.

12 Mr Cook also relied upon the fact that the piece of wood described by witnesses as the weapon with which the deceased had initially chased the offender, and described by the offender as that which the deceased had swung at him at the vital moment, was found by police close to the spot where the deceased was stabbed. Mr Cook argued that that is consistent with the offender’s account. That may be so but, in the fast moving event that this incident was, it is not at all clear how that piece of wood came to be where it lay. Its position is not inconsistent with the evidence of the eyewitnesses.

13 The Crown prosecutor submitted that I should sentence the offender on the basis of manslaughter by provocation, rather than excessive self-defence. The issue is by no means academic because counsel were agreed - and I share their view – that, of the two bases, provocation calls for a heavier sentence. I would not sentence him for manslaughter by provocation unless I was satisfied beyond reasonable doubt that that is the appropriate basis. I am so satisfied.

14 What emerges consistently from the eyewitness evidence is an account of the stabbing markedly different from that advanced by the offender. I am satisfied that he approached the deceased from behind, that the deceased turned to face him after being warned of his approach, and that the deceased was unarmed at the time he was stabbed. The Crown prosecutor relied upon some other evidence at the trial on this issue, but I do not find it necessary to evaluate it.

15 On the question whether the offender armed himself with the knife for a defensive or aggressive purpose, I am prepared to give him the benefit of the doubt. The Crown prosecutor referred to the evidence of Ms Linda O’Connor that, on an occasion in the early part of 2004, the offender said that he was going to kill the deceased. The offender denied this at the trial but, assuming it was said, I would not give it the significance for which the Crown prosecutor contended. In its context, I am not satisfied that it was a serious threat, rather than a rhetorical flourish.

16 The provocation arose from the background of animosity between him and the deceased, the fight earlier in the afternoon, and the aggression displayed by the deceased in chasing him with a piece of wood. In all likelihood, the deceased was intending to renew his aggression when he was attempting to break off a piece of branch immediately before being stabbed. I accept that the offender had been drinking earlier in the afternoon and was to some extent disinhibited by alcohol.

Victim Impact Statement

17 The Crown prosecutor tendered a victim impact statement prepared by the mother of the deceased, Ms Helen Hagenson, speaking for herself and for members of the family. Ms Hagenson read the statement to the Court. I admitted it provisionally, as Mr Cook objected to certain parts of it. However, it is appropriate that the whole statement be received and, of course, I approach it in accordance with established authority.

18 The statement is an eloquent expression of Ms Hagenson’s grief and outrage at the death of her son. That a young man should meet a violent death in circumstances such as these is indeed tragic. At the sentence proceedings I expressed my deepest sympathy to Ms Hagenson and to all who are affected by the loss of Lucas Bruin, and I do so again today.

Subjective case

19 The offender was twenty-two years old at the time of the offence and is now twenty-four. He has a minor criminal record, of no significance for present purposes. He has been in custody since his arrest on the day of the killing, 19 April 2004.

20 His mother gave evidence and I received the report of Ms Suzanne Freeman, psychologist. He appears to have had a stable upbringing, although he had learning difficulties and left school during year 9. He had since been steadily employed in unskilled positions.

21 In his late teens he had a relationship with an older woman, which produced a son, Zachary. That woman left him when he was twenty-one, an event which appears to have affected him deeply. The child has remained with his mother. His next relationship was with Leanne Pearce, but that relationship came to an end after he was charged with the present offence. Their son, Kai, is being cared for by the offender’s parents, although Ms Pearce has regular access to him.

22 His mother has been bringing Kai to see him in custody. He told the psychologist, Ms Freeman, that he is devoted to the two boys and that his “main desire” is to be a good father to them. He will live with his parents when he is released. It is hoped that the child, Zachary will then join the household, as there are allegations that he is being mistreated at the home where he now lives.

23 Testing by Ms Freeman disclosed that the offender’s level of intellectual functioning is very low, falling at the upper end of the developmentally disabled range. She described his personality as being of “a prominently paranoid disposition”. He presented as a man of low self-esteem, and she noted that he has a strong need for affection and support from others, and that he feels vulnerable, apprehensive, suspicious and defensive.

24 That personality profile and those intellectual deficits may provide some explanation for his crime. Although I do not understand him to accept his guilt of manslaughter, he expressed remorse for the death of Lucas Bruin to his mother and to Ms Freeman.

25 Ms Freeman recommended individual counselling to address his current level of anxiety, courses in anger management and conflict resolution, and vocational courses to enhance his work skills. She also saw the need for a period of supervision by the Probation and Parole Service upon his release, to assist his adjustment to life in the community. In the light of that material, his age and the fact that this is his first experience of custody, I find special circumstances warranting a departure from the usual proportion between sentence and non-parole period.

Sentence

26 I accept that the offender was subject to a significant measure of provocation at the time he stabbed the deceased. In saying that, I do not presume to pass judgment upon the behaviour of the unfortunate deceased. However, the measure of the provocation is relevant to an assessment of the offender’s culpability. As I have said, I am not satisfied that he took possession of the knife to attack the deceased or that the killing was in any way premeditated. It was a reaction to events as they developed in the vicinity of the Todds’ home.

27 Although the fatal blow penetrated the heart, I am not satisfied to the requisite degree that the offender intended to kill. Clearly, he did intend to inflict grievous bodily harm. Nevertheless, the offence remains a serious one of its kind. His intoxication may provide some limited explanation for his behaviour, but it does not mitigate the gravity of his crime.

28 In the offender’s favour, he is a young man with no significant criminal record, who has had the benefit of a stable upbringing and can look forward to the support and assistance of his parents upon his release. His prospects of rehabilitation are good. Indeed, I think it unlikely that he will re-offend.

29 Steven John Berrier, you are sentenced to imprisonment for nine years, comprising a non-parole period of six years, commencing on 19 April 2004 and expiring on 18 April 2010, and a balance of term of three years, commencing on 19 April 2010 and expiring on 18 April 2013. You will be eligible for release on parole on 18 April 2010.

**********