Heitanen v The Queen - [2012] VSCA 173

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0280

GARY HEITANEN
	Appellant
V
THE QUEEN	Respondent

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JUDGES:	WEINBERG and BONGIORNO JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2012
DATE OF JUDGMENT:	8 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 173
JUDGMENT APPEALED FROM:	R v Heitanen [2011] VSC 404 (King J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Death caused by single punch to victim’s head – No provocation – Appellant had prior convictions for offences of violence – Appellant remorseful – Early plea of guilty – Sentenced to 10 years’ imprisonment with non-parole period of seven years – Whether sentencing judge failed to accord appellant procedural fairness by not allowing his counsel sufficient time to prepare plea in mitigation – Whether sentence was manifestly excessive – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms J Piggott	Martin Irwin & Richards Lawyers
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Bongiorno JA.

BONGIORNO JA:

On 24 August 2011, the appellant, Gary James Heitanen, having earlier pleaded guilty to one charge of manslaughter, was sentenced in the Supreme Court at Mildura to be imprisoned for 10 years with a minimum term of seven years. Heitanen committed the offence on 26 January 2011 when, without the slightest provocation, he punched an erstwhile friend, David Rowe, to the head. Mr Rowe died shortly after from a subarachnoid haemorrhage. The post‑mortem pathologist said the haemorrhage was caused by blunt force trauma to the head and neck resulting in acute overstretching of the vertebral artery and subsequent tearing.

The circumstances in which Mr Rowe met his death are fully canvassed in the sentencing remarks of the sentencing judge; no issue was taken as to the accuracy of those sentencing remarks on this appeal.[1] It is sufficient to note, at this point, that the punch that killed Mr Rowe was administered in circumstances where he was intent on distancing himself from any altercation whatsoever with the appellant. He had earlier emphatically rejected a challenge from the appellant to go ‘toe to toe’ with him. The deadly assault occurred when Mr Rowe was walking away. He looked over his shoulder and was instantaneously struck on the left jaw by the appellant’s right fist.
[1]R v Heitanen [2011] VSC 404.

The appellant came before the sentencing judge with an unimpressive 20-year record of prior convictions, a significant number of which were for crimes of violence. His last conviction, for recklessly causing injury, was imposed less than two years before he killed Mr Rowe. Details of his prior criminal history are fully set out in the sentencing judge’s sentencing remarks. At the time he struck the deceased, the appellant had consumed a considerable amount of alcohol. The two men had been pig hunting together and the appellant had consumed both Bourbon

and beer whilst hunting and subsequently.

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 Heitanen v The Queen

Details

AGLC: Heitanen v The Queen [2012] VSCA 173
Case: [2012] VSCA 173
Decision Date: 8 August 2012

CaseChat Overview and Summary

Heitanen was convicted of manslaughter and sentenced to 10 years in prison with a non-parole period of seven years for causing the death of an individual with a single punch to the head. Heitanen appealed the sentence on two grounds: first, that the sentencing judge did not allow his counsel sufficient time to prepare a plea in mitigation, thus failing to accord him procedural fairness; and second, that the sentence was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentencing judge failed to provide procedural fairness by not allowing adequate time for the preparation of a plea in mitigation, and whether the sentence imposed was manifestly excessive. The court examined the sentencing process and the specific circumstances of the case to determine if the appellant's rights were upheld and if the sentence was proportionate to the offence.

The court found that there was no failure of procedural fairness as the sentencing judge had provided the appellant's counsel with adequate time to prepare. Additionally, the court held that the sentence was not manifestly excessive, considering the gravity of the offence, the appellant's prior convictions, and his remorse. The court concluded that the sentence reflected the appropriate balance between punishment and deterrence.

The appeal was dismissed. The court did not find a point of principle that warranted further discussion or precedent setting.

Orders