SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0440
| SUSAN KAVANAGH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | HARPER and HANSEN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 5 August 2011 |
| DATE OF JUDGMENT | 18 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 234 |
| JUDGMENT APPEALED FROM | R v Kavanagh (Unreported, County Court of Victoria, Judge Jenkins, 18 November 2010) |
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CRIMINAL LAW - Sentence - Intentionally causing serious injury - Plea of guilty - Sentence of 4 years’ imprisonment and non-parole period of 2 years - Whether sentencing judge erred in her approach to the appellant’s mental health issues - Appellant’s delay in calling an ambulance - Whether this delay affected the weight to be given to the plea of guilty - R v Verdins (2007) 16 VR 269 - Whether sentence imposed appropriate - Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Rainer Martini & Associates |
| For the Crown | Mrs C M Quin | Mr C Hyland, Solicitor for Public Prosecutions |
HARPER JA:
The appellant suffers from alcoholism. She also has a history of depressive illness stretching back to about 1990. The tenth of twelve children, she was born on 20 January 1961. Her childhood was marked by fear of her mother, who was ill with paranoid schizophrenia. For a young child, that must have been more than a burden; but she also had to suffer the constant disapproval of her parents, for whom nothing was ever good enough. She left school after completing year 10, and has since held various jobs, but went on a disability support pension in 2009. Before she went into rehabilitation in 2008 she was drinking a two-litre cask of wine each day. This has impaired her memory, and her higher mental functioning. According to Dr Alan Jager, a forensic psychiatrist, she suffers from ‘alcohol dependence, dementia secondary to alcohol dependence, chronic major depressive disorder and a likely borderline personality disorder.’ The history of her relationships, as she described it to Dr Jager, is ‘completely incoherent’, as partners came and went on dates which she was unable to recall even approximately. A pervasive sense of abandonment has, it seems, haunted her since childhood.
This came to a head on 15 December 2009. She was then in about the sixth month of a casual relationship. She was intoxicated. It seems that she initiated, or at least recommenced, an argument with her partner. He was either in bed or preparing for it, but changed his mind and began to dress in preparation to leave. According to Pamela Matthews, a forensic psychologist, ‘[the appellant] had reached a point of no longer being able to cope with yet another such experience.’ She went into the kitchen, picked up a knife, returned to the bedroom and stabbed him in the stomach.
His wounds were life-threatening, and their effects remain with him - with consequences which the sentencing judge described in her reasons for sentence as ‘devastating’. His first reaction was of searing pain.…
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- AGLC
- Kavanagh v The Queen [2011] VSCA 234
- Case
- [2011] VSCA 234
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the sentencing judge had correctly considered the appellant's mental health issues and the relevance of the delay in calling an ambulance to the plea discount. The court considered the principles set out in R v Verdins, where it was held that a delay in seeking medical assistance could be a mitigating factor. The court also assessed whether the sentence was proportionate to the seriousness of the offence and whether it adequately balanced the need for punishment and deterrence with the need for rehabilitation.
The court found that the sentencing judge had properly considered the appellant's mental health issues and that the delay in calling an ambulance did not significantly affect the weight given to the plea of guilty. The court held that the sentence imposed was appropriate, taking into account the seriousness of the offence, the appellant's criminal history, and the need for deterrence. The appeal was ultimately dismissed, and the original sentence was upheld.
No further orders were made by the court. The appeal was dismissed, and the original sentence of four years' imprisonment with a non-parole period of two years was confirmed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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