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:

1. I agree with Bongiorno JA.

BONGIORNO JA:

1. 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.

1. 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.

1. 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.

1. The appellant has expressed remorse for having killed Mr Rowe and, as evidence of that, pleaded guilty to manslaughter at a very early stage in this proceeding.  His remorse was also noted and accepted by a psychologist who examined him and wrote a report which was before the sentencing judge.  His remorse and his early plea of guilty were clearly taken into account by the sentencing judge in reaching the sentence which she imposed as was the fact that the relatives of the deceased man were spared the emotional and psychological trauma of going through a trial by that plea.  There is no doubt that the death of Mr Rowe was solely the responsibility of the appellant and that that responsibility would have been amply demonstrated had the matter proceeded to trial.

1. In imposing the sentence which she did, the sentencing judge referred to the devastating effect on the deceased’s family which the appellant’s conduct had had and she expressed reservations as to his prospects of rehabilitation, saying that she was ‘pessimistic’ about those prospects although there was some hope of his turning his life around.

This appeal

1. By notice dated 12 January 2012, the appellant sought leave to appeal his sentence on two grounds: a ground of manifest excess and a ground which asserted that the sentencing judge had not allowed his counsel sufficient time to prepare a plea in mitigation properly.  On 28 March 2012, I granted leave to appeal in respect of the second of those grounds and referred the first ground to this Court.

1. In the event the second ground referred to was but faintly pressed.  The appellant did not seek to put on evidentiary material going to the issues raised by that ground and argument in respect of it was brief, both in his written case and orally.  Such information as there was concerning the circumstances which gave rise to the second ground before this Court was derived from the transcript of the plea hearing before the sentencing judge.

1. The appellant’s plea was due to be heard in Mildura on Monday 22 August 2011.  On the preceding Friday, the appellant’s original counsel, who practised in Mildura, had become unavailable by reason of illness.  His instructing solicitor appeared before the sentencing judge on the Monday and sought an adjournment until the following day to enable new counsel to arrive from Melbourne.  This adjournment was granted and the plea proceeded on the Tuesday.  It appears from the transcript that, although new counsel who made the plea did so somewhat briefly, he was given every opportunity to address any other issues he wished to raise.  The sentencing judge was at pains to ensure that everything which could be considered with respect to the appellant was put before the Court.  No application for an adjournment was made by counsel nor did he make any complaint as to inadequate preparation.  No application was made to this Court to place evidence from him or any other source before the Court in support of this ground.

1. If by what occurred before the sentencing judge the appellant had been denied procedural fairness, the resulting sentence would have had to be set aside unless it could be shown that no injustice followed.[2]  In R v Wise,[3] this Court was concerned with a sentence appeal where the sentencing judge had passed a sentence based partly on material which had been withheld from counsel for the prisoner.  The Court concluded that that conduct by the sentencing judge constituted a denial of procedural fairness.  It set aside the sentence and re-sentenced the prisoner.[4]

   [2]McColl v Lehmann [1987] VR 503; Naidu v The Queen (2011) 209 A Crim R 244.

   [3](2000) 2 VR 287.

   [4]Ibid 296–7 (Ormiston JA with whom Brooking and Chernov JJA agreed).

1. In this case, having regard to the fact that new counsel for the appellant appeared before the sentencing judge on the Tuesday morning, that he did not then seek any further adjournment, that he did not tell the sentencing judge that he was in any way inadequately briefed, that there was no obvious inadequacy in the material he presented to the Court and that, in this Court, counsel for the appellant produced no evidence and made no submission of substance in support of the second ground, no case of denial of procedural fairness has been made out.  Having regard to the conclusion I have reached with respect to the manifest excess ground, discussed below, even if the appellant had established a case of procedural unfairness, no different sentence ought to have been passed by this Court.  This ground of appeal should be rejected.

Manifest excess

1. In her argument on this ground, counsel for the appellant submitted that the sentencing judge had made an erroneous assessment of her client’s prospects of rehabilitation.  She criticised her Honour’s pessimism as to those prospects.  But, having regard to the appellant’s prior history and continued abuse of alcohol and other drugs, her Honour’s assessment was certainly open on the evidence before her, notwithstanding the testimonials and other material also in evidence which she acknowledged in her sentencing remarks.  This submission has no merit.

1. Another argument put by counsel for the appellant in this Court concerned drug and alcohol rehabilitation which, the evidence showed, the appellant had undergone for a short period in Melbourne in April 2009 ― shortly before his appearance before the Mildura Magistrates’ Court for an offence involving violence.  She argued that the appellant’s preparedness to undertake such rehabilitation should have been given more weight by the sentencing judge than it must have been having regard to the sentence she imposed.  When added to his obvious remorse, as demonstrated by his early plea of guilty, he ought to have received a considerably lower sentence than he did, counsel argued.  This submission should also be rejected.  It is clear that her Honour was cognisant of all of these matters and took them into account.

1. The appellant’s attack on the deceased in this case was cowardly, unprovoked and executed in circumstances where the deceased had made it abundantly clear that he wanted no part in the violent confrontation which the appellant sought.  Despite its being effected by a single punch, the appellant’s killing of the deceased was a

serious example of unlawful and dangerous act manslaughter.  It deserved condign punishment, which the sentencing judge imposed.  There was no error in her Honour’s approach to the sentencing task, nor was there any error in the sentence she ultimately imposed.  It was not manifestly excessive.  This ground should be rejected.

1. I would refuse the appellant leave to appeal on the ground of manifest excess and dismiss the appeal on the ground upon which I earlier granted leave.  The sentence imposed by the sentencing judge and the ancillary orders made by her Honour should be confirmed.

T FORREST AJA:

1. I also agree with Bongiorno JA.

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