Dutton v The Queen - [2011] VSCA 287

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0163

ANTHONY DUTTON

THE QUEEN

---

JUDGES:	BUCHANAN and MANDIE JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2011
DATE OF JUDGMENT/ORDER:	28 September 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 287
JUDGMENT APPEALED FROM:	[2010] VSC 107 (King J)

---

CRIMINAL LAW – Sentence – Murder – Relevance of offender’s age (60 years) – Verdins applied – Sentence of 16 years with non-parole period of 12 years – Sentence not manifestly excessive – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Michael Gleeson & Assocs Pty
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Whelan AJA that the appeal should be dismissed for the reasons stated by his Honour.

MANDIE JA:

I also agree.

WHELAN AJA:

On 20 August 2009 the appellant pleaded guilty to the murder of Angelique Portelli. The murder had occurred in the early hours of the morning of Tuesday 27 June 2006.

At the date of the murder the appellant was almost 60 years of age. Ms Portelli was 31 years of age. The appellant and Ms Portelli worked together. Ms Portelli was married to someone else, but she and the appellant had been in a relationship for some time and she stayed with him on occasions. The murder occurred in the bedroom of the appellant’s apartment.

The appellant’s relationship with Ms Portelli had placed significant pressures on him. In particular, his long time business partner wanted him to terminate her employment. The sentencing judge found that the appellant’s feelings towards Ms Portelli were ‘conflicted’, in that he was deeply attached to her but also had a mistrust of her.

On Monday 26 June 2006 the appellant and Ms Portelli dined together and then returned to the appellant’s apartment and went to bed. For reasons which remain unknown, the appellant awoke and went into the kitchen. He obtained a knife, returned to the bedroom, and killed Ms Portelli.

After killing Ms Portelli, the appellant sent a text message to a number of persons and then took an overdose of Diazepam tablets. When one of the persons to

whom the text message was sent arrived at the appellant’s apartment, he found the appellant unconscious on the bed and Ms Portelli dead on the floor beside the bed. A bedside lamp cord was wrapped around Ms Portelli’s neck. The appellant awoke in intensive care four days later.

An autopsy on Ms Portelli found that strangulation was the cause of death. There were 38 injuries to her body. There were bilateral fractures of her larynx, defensive injuries to her hands, two stab wounds in her neck, a stab wound to her right upper chest, a stab wound to her thigh, and blunt force injuries to her head. Broken pieces of the bedside lamp were found embedded in her ear and eyebrow.

Throughout the proceeding there was…

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 Dutton v The Queen

Details

AGLC: Dutton v The Queen [2011] VSCA 287
Case: [2011] VSCA 287
Decision Date: 28 September 2011

CaseChat Overview and Summary

Dutton appealed against his conviction and sentence for murder, with the central issue being the appropriateness of the sentence imposed. The respondent, the Crown, argued that the sentence was appropriate given the gravity of the crime. The court was tasked with determining whether the sentence was manifestly excessive, particularly in light of the offender’s age at the time of the offence.

The court examined the principles of sentencing in murder cases, specifically the Verdins criteria, which consider the circumstances of the offence, the offender's culpability, and the need for deterrence and retribution. It found that the trial judge had properly considered the offender's age and other mitigating factors but had ultimately concluded that the sentence was proportionate to the gravity of the crime. The court emphasised that while the offender's age was a relevant factor, it did not automatically warrant a reduced sentence. The court held that the sentence of 16 years with a non-parole period of 12 years was not manifestly excessive.

The appeal was dismissed, and the original sentence was upheld. The court found that the trial judge had appropriately balanced the relevant factors and that the sentence was within the range of acceptable outcomes for such a serious offence. The offender’s age was considered but did not alter the fundamental nature of the crime or the need for an adequate sentence.

Orders