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Court of Criminal Appeal 27 February 2009

BERRIER, Steven John v R

[2009] NSWCCA 40

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER NO ISSUES OF PRINCIPLE MATERIAL CONSIDERATIONS NO IDENTIFIABLE OR MANIFEST ERROR

Citation: BERRIER, Steven John v R [2009] NSWCCA 40
Court: New South Wales Court of Criminal Appeal
Date: 27 February 2009
Judge(s): Giles JA, Rothman J, Price J

Background

The appellant was convicted by a jury of manslaughter following the fatal stabbing of a man at Prospect in April 2004. The two men had a history of animosity connected to overlapping personal relationships, and had exchanged blows in a fight earlier that afternoon. The appellant later armed himself with a knife and returned to where the deceased was present.

The appellant's case at trial was that he carried the knife for protection and that the deceased had effectively impaled himself on it while chasing the appellant with a piece of wood. The jury rejected that account. Crown witnesses described the deceased as unarmed at the moment of the stabbing, with the appellant approaching him from behind before the fatal blow was struck.

On sentencing, the primary dispute was whether the manslaughter verdict rested on the basis of provocation or excessive self-defence. Hidden J concluded it was provocation manslaughter, accepted beyond reasonable doubt, and imposed a non-parole period of six years with a balance of term of three years. The appellant sought leave to appeal that sentence.

  • Whether the sentencing judge erred in concluding that provocation, rather than excessive self-defence, was the correct basis for sentencing, given that both parties accepted provocation attracts a heavier sentence
  • Whether the sentencing judge failed to take into account material considerations relevant to the circumstances of the offence and the offender
  • Whether the sentence imposed was manifestly excessive

Decision

On the first ground, Rothman J found no error in Hidden J's determination that the sentence should proceed on the basis of provocation manslaughter. His Honour had applied the correct standard, requiring satisfaction beyond reasonable doubt before sentencing on that basis, and had identified the provocation in the background animosity between the parties, the earlier fight, and the deceased's aggressive conduct in chasing the appellant with a piece of wood. That finding was open on the evidence.

On the second ground, the Court found no failure to take material considerations into account. The sentencing judge had considered the victim impact statement, the appellant's subjective circumstances, his absence of substantial criminal record, and the period already spent in custody, among other matters.

On the third ground, the Court confirmed the well-established principle that an appellate court will not intervene to reduce a sentence unless the sentence is outside the available range, reflecting manifest error. Rothman J examined the relevant cases and statistics published by the Judicial Commission of New South Wales, but cautioned that manslaughter sentencing statistics require careful handling given the significant variation in factual circumstances between cases. No comparator case or statistical data demonstrated that the sentence fell outside the available range. The Court was also not satisfied, under s 6(3) of the Criminal Appeal Act 1912, that any lower sentence was warranted.

Orders Made

  • Leave to appeal granted
  • The appeal against sentence dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a sentencing judge has identified the basis of a manslaughter verdict beyond reasonable doubt, an appellate court will not disturb that finding absent identifiable error.
  • A clear distinction exists between provocation manslaughter and excessive self-defence manslaughter for sentencing purposes: both parties and the court accepted that a provocation basis attracts a heavier sentence than excessive self-defence.
  • Manslaughter carries a maximum sentence of 25 years' imprisonment and is regarded as one of the most serious offences given it involves the felonious taking of human life, but the appropriate sentence depends entirely on the particular facts of each case.
  • Judicial Commission sentencing statistics for manslaughter must be applied with caution, because the wide factual variation between individual cases limits the utility of statistical comparisons.
  • No principle of parity applies between offenders who are not co-offenders; comparisons between sentences for different manslaughter offences require close attention to the specific circumstances of each case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 421 (excessive self-defence)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Blacklidge (NSWCCA, 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
- R v Berrier [2006] NSWSC 1421 (the sentence decision under appeal)