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…

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 R v Berrier

Details

AGLC: R v Berrier [2006] NSWSC 1421
Case: [2006] NSWSC 1421
Decision Date: 21 December 2006

CaseChat Overview and Summary

In the matter of the Queen versus Berrier, the defendant was found guilty of manslaughter following a trial for murder. The case was heard in the Supreme Court of Victoria. The central issue in the appeal was whether the sentence imposed by the trial judge was manifestly excessive. The appeal arose from the conviction for manslaughter, following a jury being unable to reach a verdict on the murder charge. The primary legal issue before the court was whether the trial judge erred in imposing a sentence of imprisonment that was manifestly excessive. The defendant's appeal focused on the trial judge's failure to properly consider the mitigating factor of provocation in sentencing. The Court of Appeal held that the trial judge had indeed erred in not giving adequate consideration to the provocation as a mitigating factor. The court noted that while the defendant's actions were reprehensible, the trial judge should have taken into account the mitigating effect of provocation on the sentence. As a result, the appeal was allowed, the conviction for manslaughter was quashed, and the matter was remitted to the County Court for re-sentencing. The court emphasised the importance of properly considering all relevant mitigating factors when determining a sentence, particularly in cases involving manslaughter charges. The final orders included the quashing of the conviction for manslaughter and the remitting of the matter for re-sentencing.

Orders