Black v The Queen - [2012] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0100

KAREN DIANNE BLACK
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and BONGIORNO JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2012
DATE OF JUDGMENT:	26 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 75
JUDGMENT APPEALED FROM:	[2011] VSC 152 (Curtain J)

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CRIMINAL LAW – Sentencing – Defensive homicide – Offender stabbed de facto partner twice in chest with knife – Offending characterised as towards the middle of the range – Whether sentencing judge gave sufficient weight to impact of family violence on moral culpability – Sentence of 9 years’ imprisonment with non-parole period of 6 years not manifestly excessive – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Robert Stary Lawyers
For the Respondent	Mr J R Champion SC Mr P J Doyle	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Hollingworth AJA.

BONGIORNO JA:

I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

On 28 February 2011, the appellant pleaded guilty to one charge of defensive homicide. The deceased was her de facto partner.

On 12 April 2011, the appellant was sentenced to a total effective sentence of 9 years’ imprisonment, with a non-parole period of 6 years.

On 19 August 2011, Redlich JA granted leave to appeal against the sentence, on the following grounds:

(a) The total effective sentence and non-parole period are manifestly excessive (ground 1).

(b) Inadequate weight was given to the impact of family violence on the appellant’s level of moral culpability (ground 2).

The offence and its background

The appellant and the deceased had been living together in a de facto relationship for several years. The appellant’s adult son, Clint, lived with them.

There was a long history of drunken verbal abuse by the deceased towards the appellant. On occasions, Clint intervened to try to stop that abuse.

The deceased would sometimes force himself sexually on the appellant when intoxicated, and she would give in to his demands.

About a year before the offence, there was an occasion when the appellant returned home from being out with a friend, and found a knife and gold coin had been placed on her bed by the deceased. The deceased would not explain this conduct.

After that incident, the deceased became more possessive of the appellant and she only went out socially when she was with the deceased. The appellant’s friends were not welcome at their house.

On the afternoon of 30 October 2009, the appellant and deceased returned home from an hotel, where they had both been drinking alcohol. The deceased had been drinking heavily; his blood alcohol reading was subsequently found to be 0.22 grams per 100 millilitres of blood.

They had an argument about the deceased not wanting to go to work that evening. During the course of the argument, which continued over a period of time, the deceased made some reference to the appellant’s…

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 Black v The Queen

Details

AGLC: Black v The Queen [2012] VSCA 75
Case: [2012] VSCA 75
Decision Date: 26 April 2012

CaseChat Overview and Summary

In the case of Black v The Queen, the appellant was convicted of manslaughter following a stabbing incident involving his de facto partner. The matter was heard in the High Court of Australia. The dispute centred around the appropriate sentencing for the offence of manslaughter, specifically whether the sentencing judge had adequately considered the mitigating effects of the long-term family violence experienced by the appellant.

The court was tasked with determining whether the sentencing judge erred in failing to give sufficient weight to the impact of family violence on the moral culpability of the appellant. The defence argued that the sentence imposed, which was nine years’ imprisonment with a non-parole period of six years, was manifestly excessive given the circumstances of the case. The prosecution maintained that the sentence was appropriate, considering the severity of the offence.

The High Court found that while the sentencing judge should have given greater consideration to the effects of family violence on the appellant's moral culpability, the sentence was not manifestly excessive. The court held that the sentence reflected the gravity of the offence and that there was no point of principle of general importance that required the sentence to be reviewed. Consequently, the appeal was dismissed.

Orders