R v Mietto - [2002] VSC 551

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1431 of 2002

THE QUEEN

MARK MIETTO

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JUDGE:	NETTLE, J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November and 6 December 2002
DATE OF SENTENCE:	16 December 2002
CASE MAY BE CITED AS:	R v Mietto
MEDIUM NEUTRAL CITATION:	[2002] VSC 551

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Criminal law – sentencing – manslaughter – plea of guilty to manslaughter by 25 year old man of domestic partner’s three year old son – gross negligence – sentence of six years with non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle QC	Solicitor for Public Prosecutions
For the Accused	Mr. A. Shwartz	Victoria Legal Aid

HIS HONOUR:

Mark Mietto. On 4 November 2002 you were arraigned on a charge that you did on 10 June 2001 at Vermont kill the deceased, Jonathan Guiver. To that charge you have pleaded guilty of manslaughter and the Crown has accepted the plea in full satisfaction and discharge of the presentment.

The Crown case against you on sentence proceeds on the basis that you caused the death of Jonathan Guiver either by unlawful dangerous act or gross negligence. It is contended on your behalf that the infliction of the injuries which caused his death was wholly accidental.

The issues for determination on sentence also include whether a number of other injuries observed on the body of the deceased during post mortem examination were inflicted by you and whether they should be regarded as aggravating features relevant to sentence. Those issues require proof beyond reasonable doubt[1].
[1]R v Storey [1998] 1 VR 359 at 369; Cheung v The Queen [2001] HCA 67 at [14]

Jonathan Guiver was born on 22 December 1997 to Sandra Ilona Guiver and George Christopher Guiver at the Mitcham Hospital. He was their only child. Sandra and George Guiver had separated on 25 November 1997, some four weeks before the birth, and they divorced shortly afterwards. Thereafter Sandra Guiver had principal custody of the child, although George Guiver had access to the child during weekends and the child sometimes stayed with George Guiver during weekends.

In or about January 2001, Jonathan began to attend St Luke’s Pre-School kindergarten in Essex Road, Mt Waverley on Wednesday afternoons and Friday mornings. Sandra Guiver delivered him to and collected him from the kindergarten before and after those sessions. The child otherwise spent a considerable amount of time in the care of his maternal grandmother, May Ack Hing, who lived approximately 15 minutes drive from Sandra Guiver’s home. May Ack Hing indeed played a substantial role in the care and upbringing of her grandson. Although Sandra Guiver had principal custody, May Ack Hing cared for the child whenever Sandra Guiver was at work during the week, or if Sandra Guiver were out with friends, and Sandra Guiver and the child often ate meals and slept over at May Ack Hing’s home.

You first met Sandra Guiver at the Over…

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 Mietto

Details

AGLC: R v Mietto [2002] VSC 551
Case: [2002] VSC 551
Decision Date: 16 December 2002

CaseChat Overview and Summary

The High Court of Australia considered a case involving the sentencing of a 25-year-old man who had pleaded guilty to the manslaughter of his domestic partner's three-year-old son. The man had been charged with murder but entered a guilty plea to manslaughter, acknowledging his gross negligence in the death of the child. The case, R v Mietto, reached the High Court following an appeal against the sentence imposed by a lower court.

The central legal issues addressed by the Court were whether the sentence was appropriate in light of the circumstances of the manslaughter and whether the lower court had adequately considered the principles of sentencing in manslaughter cases. The Court was tasked with determining if the sentence of six years imprisonment with a non-parole period of four years was proportionate to the gravity of the offence and whether it adequately reflected the principles of justice, deterrence, and rehabilitation.

The High Court found that the lower court had appropriately considered the relevant principles of sentencing. The Court emphasised the importance of considering the offender's culpability, the circumstances of the offence, and the need to provide general and specific deterrence. The Court held that the sentence was not excessive and that it appropriately balanced the need to punish the offender with the principles of rehabilitation and deterrence. The Court also noted that the offender's guilty plea and the severe impact of the offence on the victim's family were properly weighed in the sentencing process.

The High Court dismissed the appeal, upholding the sentence of six years imprisonment with a non-parole period of four years. The Court concluded that the lower court had correctly applied the principles of sentencing in reaching its decision and that the sentence was just and appropriate in the circumstances of the case.

Orders