BERRIER, Steven John v R

LEGISLATION CITED: Crimes Act 1900 Criminal Appeal Act 1912

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 CASES CITED : 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)

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 DATE OF DECISION: 21 December 2006

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

IN THE COURT OF CRIMINAL APPEAL 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 on the following bases: "(a) the sentencing judge erred in determining an appropriate sentence when he held that of two bases for manslaughter, namely excessive self-defence and provocation, provocation calls for a heavier sentence and proceeded to sentence the offender on that basis;

(b) the sentencing judge failed to take into account material considerations when assessing the circumstances of the offence (and the offender) relevant to determining an appropriate sentence; and

(c) the sentence is manifestly excessive." 6 It is necessary to deal, more fully, with the facts and the basis of the findings of his Honour, before dealing with each of the grounds of appeal, which grounds also address the application for leave to appeal. Facts and Remarks on Sentence 7 There had been a history of animosity between the applicant, Mr Berrier and the deceased Mr Bruin, relating to the intertwining relationships of Mr Bruin's close friend, Mr Flynn, who was the former partner of Mr Berrier's partner. One matter of significance, mentioned by his Honour, was that the deceased, Mr Bruin, became aware of an allegation that the applicant, Mr Berrier, had mistreated his stepchild, being the child of Mr Berrier's partner and Mr Flynn. At the time, Mr Flynn (the father of Mr Berrier's stepchild) was serving a term of imprisonment. 8 On the afternoon of 19 April 2004, Mr Berrier was walking with his partner, pushing the stepchild in a pram. Mr Bruin approached and confronted Mr Berrier, accusing him of having hit the child. There was a fight, in which the two men exchanged punches. Mr Bruin went to a house ("Mr Todd's house") in the vicinity, which was not his own. 9 Mr Berrier's partner, angry over the fighting in front of the child, went to Mr Todd's house to see Mr Bruin and to confront him about the matter. Mr Berrier went to his partner's mother's house (where his partner was, at that time, living) and obtained a knife. 10 Mr Berrier approached Mr Bruin at Mr Todd's house and asked him if he wanted another fight. It seems (according to Hidden J) that Mr Bruin did not notice the knife - it had been concealed in Mr Berrier's sleeve. Mr Bruin picked up a piece of wood and chased Mr Berrier. Mr Bruin had to jump clear of a car, driven by Mr Berrier's father, that had turned into the street after which Mr Bruin returned to Mr Todd's house. 11 Mr Berrier's case at trial was that he had carried the knife for his own protection and attended at Mr Todd's house out of concern for his partner. He asserted that he was fearful of the deceased. After Mr Bruin, piece of wood in hand, chased Mr Berrier, swinging the wood towards Mr Berrier, he, Mr Berrier, turned towards Mr Bruin and produced the knife, holding it in front of him, in order to persuade Mr Bruin to "back off". Mr Berrier's case was that, in essence, Mr Bruin impaled himself upon the knife. Clearly, the jury rejected this account. 12 On sentence, counsel for Mr Berrier submitted that he should be sentenced on the basis of Mr Berrier's account of the circumstances, except insofar as his account included the allegation regarding the involuntary nature of the act. On that basis the act was "an act in self-defence", the response being unreasonable: s 421 of the Crimes Act 1900. 13 Evidence adduced by the Crown presented a different scenario. That evidence suggested that Mr Bruin had discarded the piece of wood and was in the front yard of the house trying to break a branch that was lying on the ground. 14 Mr Berrier approached him from behind, causing several onlookers to call out to warn Mr Bruin. Holding nothing in his hands, Mr Bruin rose, turned to face Mr Berrier, and was stabbed. All Crown witnesses described one or more stabbing actions. However, the knife penetrated Mr Bruin's body only once. Justice Hidden accepted the version of events given by the witnesses, rather than the version of events suggested by counsel for Mr Berrier. This version of events, accepted by his Honour, was clearly open to his Honour and the events were proved beyond a reasonable doubt. 15 His Honour then described the submissions as to the manner in which he should treat the verdict of the jury and the basis upon which the verdict was reached. Counsel for Mr Berrier argued that, as earlier stated, sentencing should occur on the basis of excessive self-defence. On the other hand, the Crown submitted that sentencing should occur on the basis of manslaughter by provocation. His Honour then said: "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." 16 Further his Honour was satisfied, as he was entitled to be, on the evidence before the Court, that Mr Bruin was "unarmed at the time he was stabbed". However, his Honour gave Mr Berrier the benefit of the doubt on the question of whether he, Mr Berrier, armed himself with the knife for a defensive or an aggressive purpose. His Honour found the provocation in the following terms: "The provocation arose from the background of animosity between him [Mr Berrier] 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." 17 His Honour, as one would expect of an extremely experienced sentencing judge, discussed in his Remarks on Sentence the victim impact statement and the subjective case of the offender. Those comments on the subjective case included a reference to the absence of any substantial criminal record, the length of time he has been in custody since his arrest for the charge in question, his early childhood and relationships. His Honour also noted the testing by Mr Berrier's psychologist that disclosed that Mr Berrier had a level of intellectual functioning that was very low, falling at the upper end of the developmentally disabled range. The Remarks on Sentence also repeated the psychologist's description of Mr Berrier's personality as being of "a prominently paranoid disposition"; a man of low esteem, with strong needs for affection and support from others; and with feelings of vulnerability, apprehensiveness, suspicion and defensiveness. His Honour commented that the "personality profile and those intellectual deficits may provide some explanation for his crime". His Honour found special circumstances. 18 The foregoing, as is obvious, is derived predominantly from his Honour's remarks on sentence. Ground 1: The sentencing judge erred in determining an appropriate sentence when he held that of two bases of manslaughter, namely excessive self-defence and provocation, provocation calls for a heavier sentence and proceeded to sentence the applicant on that basis 19 The fundamental basis for this alleged error of his Honour is that his Honour was determining a general approach to manslaughter and a grade of seriousness depending upon the nature of the manslaughter and whether, relevantly, it is manslaughter because of excessive self-defence or provocation. 20 As I read the comments of his Honour, his Honour was not setting out a general principle, or a general approach to determining the seriousness of a manslaughter offence. His Honour was faced with two fundamentally inconsistent versions of the circumstances of this particular offence. There may have been further particular differences, even within those versions. His Honour's determination that it was provocation, and therefore more serious, related to: firstly, the jury's acceptance of the Crown case that the act of stabbing the deceased was voluntary; and, secondly, his Honour's acceptance that at the time Mr Berrier stabbed Mr Bruin, Mr Bruin was not armed and was not posing a threat to Mr Berrier (and Mr Berrier did not believe that his conduct was necessary to defend himself). 21 On the other hand, the acceptance by his Honour that provocation was the basis upon which Mr Berrier was convicted of murder necessarily involved an acceptance by his Honour: that the conduct of Mr Bruin induced a loss of self control on the part of Mr Berrier; and, the conduct of Mr Bruin was such as could have induced an ordinary person in Mr Berrier's position to have lost that self control and to have formed the intent, relevantly, to inflict grievous bodily harm. 22 There is no general, or necessary, difference in culpability in manslaughter, depending upon whether self-defence or provocation is the basis of the verdict. The culpability for each offence depends on the particular circumstances of the offence. His Honour does not find otherwise. His Honour's comment related to the particular circumstances of this offence. The only issue for determination was whether Mr Berrier had a belief of the necessity to defend himself and that, in turn, depended upon a number of factors including whether Mr Bruin was armed at the time of the stabbing. Given the level of provocation that had existed, and continued to exist, in the particular circumstances of this case, had Mr Bruin been armed with the piece of wood, it would have been a significant factor in the categorisation of the seriousness of the offence. 23 Manslaughter involves the felonious taking of human life (R v Edwards (1996) 90 A Crim R 510) and, in the circumstances of this case, on the findings of his Honour, involved an intention to cause grievous bodily harm ameliorated by the existence of provocation. A sentencing judge must be careful not to double count the ameliorating effect of the existence of provocation. 24 Moreover, manslaughter, more than most, is an offence for which there is an extremely wide range of culpability and a correspondingly extremely wide range of appropriate sentences: Salah v R [2009] NSWCCA 2 at [37]; R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1, per Spigelman CJ at [133]-[135]; R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397; R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported). In Blacklidge, Gleeson CJ said: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied in such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." ( Blacklidge , per Gleeson CJ at p 3.) 25 Further, it is trite to remark that each case of manslaughter must depend upon its own circumstances, the range of sentencing being notoriously wide and unable to be categorised, as a matter of general description, into self-defence, provocation and/or unlawful and dangerous act. One can well imagine an offence in any one of such categories being better or worse than examples in the other categories. 26 If his Honour, as is submitted, were to have found that, as a universal or general rule, the necessary consequence of categorising any manslaughter as manslaughter by provocation, as distinct from excessive self-defence, involved categorising the crime as a more serious offence, his Honour would have been incorrect. That, however, is not what his Honour said or did. His Honour was referring particularly to the versions put forward by the Crown and Mr Berrier, and not proposing a general principle. It is noteworthy that his Honour was a member of the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374 when the Court remarked: "The argument for the appellant advanced on this appeal appeared to assume that a case of provocation manslaughter is necessarily, or at least ordinarily, worse than a case of manslaughter by an unlawful and dangerous act. We do not accept that. Each case depends upon its own circumstances. The range of sentencing available in the case of manslaughter is notoriously wide. There have been cases where provocation manslaughter has resulted in non-custodial sentences." ( R v Isaacs , per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, by the whole Court, at 381E.) 27 As already stated, his Honour's comment was made in reference to the particular circumstances of this case and, in those circumstances, was open to his Honour and was correct. 28 A finding that the manslaughter was the result of excessive self-defence would have involved a finding that all of the aspects of provocation, otherwise held to exist, continued to exist. In addition, the deceased would have been armed with a piece of wood, which was swung at Mr Berrier, and caused Mr Berrier to believe that stabbing Mr Bruin was necessary to defend himself. Those additional facts are material and would, if they were held to exist, have lessened the culpability of the offence, in these circumstances. This ground of appeal is rejected. Ground 2: Failure to take into account material considerations 29 Essentially, the material considerations which, it is said, his Honour failed to take into account are: the degree of violence or aggression displayed by Mr Berrier; the level of intellectual functioning; the prominently paranoid personality; and Mr Berrier's level of intoxication. 30 The submission of the applicant, on this ground, is without merit. I have set out the comments of his Honour as to how Mr Berrier obtained the knife and the purpose for which he was carrying it. Further, I have summarised the circumstances, as his Honour found them, that developed: the lack of premeditation; the reaction to the provocation that was occurring; and, an intention confined to the infliction of grievous bodily harm. His Honour, as earlier summarised, also remarked upon the fact that it was only one stab wound, although, a possibility existed that there were two attempts to stab, only one of which was successful. 31 Counsel for Mr Berrier cited the judgment in R v Alexander (1994) 78 A Crim R 141 at 144 in which Hunt CJ at CL listed three matters to be taken into account when determining an appropriate sentence in provocation manslaughter cases. They were: "(1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence [e.g. Regina v Morabito (1992) 62 ACrimR 83 at 86],

(2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence [e.g. Morabito ], and

(3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence [e.g. Regina v Kinmond (1982) 5 ACrimR 413 (CCA, WA); at 414, 417; Regina v Collingburn (1985) 18 ACrimR 294 (Full Court, Victoria) at 304]." ( Alexander , at 144, per Hunt CJ at CL.) 32 A proper analysis of his Honour's remarks on sentence in this case would show that his Honour accepted a high degree of provocation and a short time period between the provocation and the loss of self-control. No complaint can be made of these two factors, which his Honour plainly took into account. 33 Further, his Honour discussed, at length, the circumstances of the stabbing, which, necessarily, required consideration of the degree of Mr Berrier's violence or aggression. Moreover, his Honour did not find that there was an excessive degree of violence or aggression displayed by Mr Berrier. It is necessary for the applicant to show error on the part of the sentencing judge. The third aspect in the particular matters listed by Hunt CJ at CL in Alexander does not require a sentencing judge to list all of the matters, which are not taken into account. It may have been error, if his Honour were to have taken into account an excessive degree of violence or aggression, if there were not an excessive degree of violence or aggression. His Honour did not err by failing to mention that he is not taking into account an excessive degree of violence or aggression, in circumstances where his Honour has not found violence or aggression to an excessive degree. 34 It should also be noted that Alexander's case, and the comments of Hunt CJ at CL, do not suggest that each of the three matters listed (and recited above) are relevant in each case. Nor does it suggest that other matters are not relevant. Each occasion for sentencing, in manslaughter by provocation, will depend upon the particular facts of the case and that which the sentencing judge considers relevant. If an irrelevant consideration is taken into account, or a relevant consideration is not taken into account, then there may be error. The applicant has failed to show that, in relation to the comments on violence or aggression, his Honour failed to take into account a relevant factor. In this case, the degree of violence or aggression was neutral. It was not excessive. There was, however, the use of a weapon. The degree of violence or aggression neither aggravated nor mitigated the seriousness of the offence and his Honour has not erred in this regard. 35 Likewise, the applicant has failed to show any factor, which was relevant, that has not been taken into account. The other matters raised in submissions, and on the appeal, are matters expressly referred to by his Honour in his Honour's remarks on sentence and were, clearly, taken into account by his Honour in determining the sentence imposed. This ground of appeal also fails. Ground 3: Manifest excess 36 As already stated, manslaughter is an offence for which there is an extremely wide range of culpability and, necessarily, a wide range of sentences that may be imposed. There is no one correct sentence and judges will differ, in detail, on the sentence to be imposed in particular cases. Nevertheless, even for manslaughter, with a wide range of sentences available, there is a range which, if it were exceeded, warrants interference by an appeal court. 37 However, as has been stated on a number of occasions, interference by an appeal court is not permitted, unless error has been identified or is manifest. In the current proceedings, no error of principle, or error in the finding of fact, has been identified. The applicant relies, in this third ground of appeal, on manifest error. Manifest error is displayed when the sentence imposed is, relevantly, manifestly excessive and, in that regard, the applicant is required to show that the sentence is outside the range available. 38 Manslaughter is regarded as one of the most serious of crimes, because it involves the felonious taking of human life. The legislature has set a maximum sentence of 25 years' imprisonment for the worst case. His Honour, as already noted, imposed a 6 year non-parole period with a balance of term of 3 years. Clearly, his Honour did not impose a sentence on the basis that this was an offence of manslaughter in the worst category of case. 39 Notwithstanding the wide range of sentences in manslaughter cases, there is a necessity to determine whether the sentence imposed on this offender, in this circumstance, was outside the applicable range and, therefore, excessive. 40 His Honour had the benefit of hearing the evidence in the trial and, as a consequence, assessing the seriousness of the matter. While attention has been drawn to the statistics published by the Judicial Commission of New South Wales, care must be taken in the application of those statistics to manslaughter cases, because of the necessary variations involved in the particular circumstances of each case. Likewise, it is difficult, without regard to significant detail, to compare different sentences for different offences. There is no principle of parity between offenders, other than co-offenders. However, an examination of the cases and their circumstances, proffered by the Crown and the applicant, do not show that the sentence imposed by his Honour was outside the range available. 41 Further, to the extent necessary, I would comment that, pursuant to the terms of s 6(3) of the Criminal Appeal Act 1912, the Court would need to be satisfied that another, relevantly lower, sentence was warranted. I am not so satisfied. 42 In my view, no identifiable error has been disclosed and the sentence imposed by his Honour was not manifestly excessive. The grounds of appeal fail and the appeal should be dismissed. Orders 43 I would propose that the Court make the following orders:

(ii) The appeal against sentence be dismissed. 44 PRICE J: I agree with Rothman J.

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