BERRIER, Steven John v R [2009] NSWCCA 40

BERRIER, Steven John v R [2009] NSWCCA 40

The sentencing judge did not state or apply a general rule that provocation manslaughter is always more serious than excessive self-defence manslaughter; his conclusion was directed to the particular facts, including findings that the deceased was unarmed and not posing a threat when stabbed. The asserted material considerations were either taken into account or were not shown to be relevant omitted factors, and the sentence was not outside the available range for manslaughter. No identifiable or manifest error was established.

Jurisdiction
Australia
Judgment Date
27 February 2009
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal against sentence dismissed.
Legal Topics
['manslaughter' 'provocation' 'excessive Self Defence' 'manifest Excess' 'material Considerations on Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['manslaughter' 'provocation' 'excessive Self Defence' 'manifest Excess' 'material Considerations on Sentence']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by treating provocation manslaughter as calling for a heavier sentence than excessive self-defence manslaughter in the circumstances of the case.' 'Whether the sentencing judge failed to take into account material considerations including the degree of violence or aggression, intellectual functioning, personality profile and intoxication.' 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not state or apply a general rule that provocation manslaughter is always more serious than excessive self-defence manslaughter; his conclusion was directed to the particular facts, including findings that the deceased was unarmed and not posing a threat when stabbed. The asserted material considerations were either taken into account or were not shown to be relevant omitted factors, and the sentence was not outside the available range for manslaughter. No identifiable or manifest error was established.

Court Disposition

Leave to appeal granted; appeal against sentence dismissed.

Orders

  • ['Leave to appeal be granted.' 'The appeal against sentence be dismissed.']