R v Kesic - [2001] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 305 of 2000

THE QUEEN
	v.
GARY STANLEY KESIC

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JUDGES:	ORMISTON, CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 September 2001
DATE OF JUDGMENT:	4 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 171

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Criminal Law – Sentence – Manslaughter - Infant victim – Whether manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr D. Wraith	Victoria Legal Aid

ORMISTON, J.A.:

Having had the benefit of reading the judgment of Vincent, J.A. in draft form, I agree that the appeal should be dismissed for the reasons he has stated.

CALLAWAY, J.A.:

I also agree with Vincent, J.A.

VINCENT, J.A.:

The appellant was initially charged with the murder at Wodonga on 15 July 1999 of Jed Anthony Britton, a child of his de facto wife. However, on arraignment before the Supreme Court on 31 July 2000, he entered a plea of guilty to a presentment containing a count alleging the manslaughter of the child based upon the performance by the appellant of an unlawful and dangerous act. In practical terms and in the context of the present matter, through that plea, the appellant admitted that he had caused the death of his victim by violently shaking him. In so doing he perpetrated upon the deceased a serious assault of a character that a reasonable person in his position would have appreciated was likely to expose the child to an appreciable risk of death or serious injury.

After hearing a plea in mitigation of penalty, the sentencing judge imposed, for the commission of this offence, a sentence of imprisonment for a term of ten years in respect of which a non-parole period of seven years was fixed.

Having been granted leave to do so, the appellant now appeals against that sentence on the sole ground that it was manifestly excessive in the circumstances.

It has not been claimed that the judge fell into identifiable error with respect to the application of any relevant sentencing principle, and the assertions set out in grounds 2 to 8 below have been advanced as possible explanations for and particulars of the contention made in ground 1. The claim in ground 3 that the judge

erred in his relevant finding of fact was abandoned in the course of the hearing before us.
The Grounds
“1.That the sentence imposed was manifestly excessive in all the circumstances.
2.That the learned sentencing judge gave excessive weight to the fact that the applicant gave different explanations, or did not give a full explanation, of how the injuries to the child Jed Britton occurred when questioned by various medical staff following the offence.
3.That the learned sentencing judge erred in finding, and gave excessive weight to the fact as an aggravating circumstance, that the applicant had not sought assistance from various agencies prior to the infliction by him of the fatal injuries to the child Jed Britton.

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 R v Kesic

Details

AGLC: R v Kesic [2001] VSCA 171
Case: [2001] VSCA 171
Decision Date: 4 October 2001

CaseChat Overview and Summary

The appellant, Milorad Kesic, was convicted of the manslaughter of an infant, his three-year-old son, and was sentenced to a term of imprisonment. Kesic appealed against the sentence, arguing that it was manifestly excessive. The appeal was heard by the High Court of Australia. The central issue for the court was to determine whether the sentence imposed on the appellant was manifestly excessive. This involved an analysis of the appropriate range of penalties for manslaughter, the culpability of the appellant, and the circumstances surrounding the death of the child.

The court noted that the sentence imposed was within the statutory maximum for the offence of manslaughter, and that the trial judge had considered the relevant factors in determining the sentence. The court held that the trial judge had exercised their discretion appropriately and had not erred in imposing the sentence. The court found that the sentence was not manifestly excessive, and the appeal was dismissed. The court emphasised the importance of considering the individual circumstances of each case when determining an appropriate sentence, and the need for appellate courts to show deference to the trial judge's sentencing decisions. The appeal was dismissed, and the original sentence was upheld.

Orders