| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1431 of 2002
| THE QUEEN |
| v |
| 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…
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- AGLC
- R v Mietto [2002] VSC 551
- Case
- [2002] VSC 551
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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