Criminal Law – Sentencing – Manslaughter by an unlawful and dangerous act – Sentence of 9 years’ imprisonment with a non-parole period of 7 years – Manifest excess - Whether appellant sentenced on incorrect factual basis – Non-parole period – Whether non-parole period imposed adequately explained in reasons for sentence - Where mitigating factors called for lower non-parole period - Head sentence affirmed, non-parole period reduced to 6 years
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC
Ms A Cannon Solicitor for Public Prosecutions
For the Appellant
Mr J Dickinson with Mr J Lavery
Brugman Mellas
WARREN CJ:
For the reasons stated by Redlich JA I would allow the appeal and re-sentence the appellant as proposed by his Honour. In re-sentencing the appellant I consider a minimum period of six years’ imprisonment to sit appropriately within the guiding principles relevant to this matter as set out in the authorities considered by Redlich JA in his reasons, namely, consistency, proportionality, rehabilitation, community interest and mitigation.
MAXWELL P:
I agree with Redlich JA and would resentence the appellant as his Honour proposes.
REDLICH JA:
The appellant, who was presented on one count of murder, was found guilty by a jury of manslaughter by an unlawful and dangerous act and was sentenced to 9 years’ imprisonment with a non-parole period of 7 years. The circumstances surrounding the offence were summarised by the learned sentencing judge as follows:
“[the victim] was a sex worker whom you had picked up in the St Kilda area sometime after 5.45 am on Saturday 17 July 2004. She had taken you to a lane in Elwood where you had sexual intercourse. A struggle broke out between you when she asked you to hurry and, ultimately, to stop. You were not prepared to stop and she attempted to push you away using her hands and legs. She hit an area of your face where you were bleeding from an injury sustained earlier that evening. You struck her face. She began to scream. A rear window of the car was broken in the course of the struggle. You told Ms Ilardi not to scream and kept striking her in order to make her stop. You put your face near hers and bit her on the lip in a further attempt to stop her screaming. She was later found to have a laceration consistent with a bite mark almost through the full thickness of her lower lip. She continued screaming and you applied pressure to her neck for three to four seconds with both hands. When you released her neck, she started to scream again and you pressed on her neck again, this time for five to six seconds. You…
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.
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Details
AGLC
R v Detenamo [2007] VSCA 160
Case
[2007] VSCA 160
Decision Date
CaseChat Overview and Summary
The appellant in this case was convicted of manslaughter by an unlawful and dangerous act. He appealed against both the sentence of 9 years’ imprisonment and the non-parole period of 7 years. The appeal was heard by the High Court of Australia. The appellant argued that the sentence was manifestly excessive, and that the trial judge had sentenced him on an incorrect factual basis. Additionally, he contended that the non-parole period was not adequately explained in the reasons for the sentence, and that the trial judge should have imposed a lower non-parole period given the mitigating factors.
The High Court considered whether the sentence was manifestly excessive and whether it was based on an incorrect factual premise. The Court found that although the sentence was severe, it was not manifestly excessive. The Court also examined whether the non-parole period was adequately explained and whether it should have been lower in light of the mitigating factors. The Court held that while the trial judge had taken into account some mitigating factors, the non-parole period was too high given the overall circumstances. The Court therefore reduced the non-parole period to 6 years.
The High Court affirmed the head sentence of 9 years’ imprisonment but reduced the non-parole period to 6 years. The Court found that the sentence, while severe, was not manifestly excessive. However, the non-parole period was not adequately explained and should have been lower given the mitigating factors. The Court's decision highlights the importance of clearly explaining the reasons for the non-parole period in sentencing and the need to consider all relevant mitigating factors.