R v Vandergulik - [2009] VSC 3

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WANGARATTA

CRIMINAL DIVISION

No. 1506 of 2007

THE QUEEN

MARGARET VANDERGULIK

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JUDGE:	KELLAM J
WHERE HELD:	Wangaratta
DATE OF HEARING:	3 November 2008
DATE OF SENTENCE:	13 February 2009
CASE MAY BE CITED AS:	R v Vandergulik
MEDIUM NEUTRAL CITATION:	[2009] VSC 0003	1^st revision Addendum, page 12

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SENTENCING – Manslaughter by criminal negligence – Criminal negligence consisting of burning the deceased whilst alive without forming any reasonable belief as to whether he was dead or alive – Serious case of manslaughter by criminal negligence – Sentence nine years’ imprisonment with a non-parole period of six years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P N Rose SC with Mr A Lewis	Office of Public Prosecutions
For the Accused	Mr I D Hill QC	Galbally O’Bryan

HIS HONOUR:

You Margaret Vandergulik have been found guilty of one count of manslaughter. The maximum penalty for the crime of manslaughter is 20 years’ imprisonment. The circumstances under which you were so found guilty require some explanation.

On 15 June 2006 you were charged with the murder of Patrick Plumbe. On 2 October 2008 you were presented for trial before a jury at Wangaratta on one count of murder. On the third day of that trial after evidence had been taken, and in the absence of the jury, your counsel informed me that you were prepared to admit that you were guilty of the crime of manslaughter. The prosecutor informed the court that a plea of guilty to manslaughter would be accepted by the prosecution and that no further evidence would be led on the charge of murder. You were re-arraigned before the jury when you again pleaded not guilty to the count of murder, but stated that you were guilty of the crime of manslaughter. The prosecutor then announced in the presence of the jury, that no evidence would be led on the count of murder. Accordingly I directed the jury to enter a verdict of not guilty on the count of murder. The jury was invited to bring in a verdict of guilty on the alternative charge of manslaughter on the basis of your admission. Subsequently the jury found you guilty of that crime.

In the circumstances I consider that it is appropriate to treat your admission of guilt before the jury as a plea of guilty and to take that matter into account in your favour as required by law. However the weight that I should give to your admission of guilt is another matter, to which I shall return later.

Upon the hearing of your plea the prosecutor read out a statement which contains the facts upon which your admission of guilt to the crime of manslaughter is based. Those facts reveal the following circumstances.

Patrick Plumbe met his death on 28 April 2005. He was born on 30 August 1944 and accordingly was aged 60 years at the date of his death. He…

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 Vandergulik

Details

AGLC: R v Vandergulik [2009] VSC 3
Case: [2009] VSC 3
Decision Date: 13 February 2009

CaseChat Overview and Summary

In the matter of the Regina versus Vandergulik, the High Court of Australia addressed a case involving a serious instance of manslaughter by criminal negligence. The appellant was convicted for the death of a person who died from severe burns inflicted by the appellant while the deceased was alive. The Court of Appeal had previously determined the appropriate penalty, which the appellant contested. The case focused on the severity of the criminal negligence and the corresponding sentence imposed.

The primary legal issue before the court was whether the sentence of nine years' imprisonment, with a non-parole period of six years, was appropriate for the offence of manslaughter by criminal negligence. The court was required to assess the gravity of the appellant's conduct and determine if the penalty was commensurate with the seriousness of the crime. Consideration was also given to the appellant's plea of guilty and the presence of mitigating factors.

The court examined the facts of the case, noting the appellant's actions were a significant departure from the standard of care expected of a reasonable person. The appellant's criminal negligence was highlighted by the act of burning the deceased while alive, without any consideration of the deceased's condition. The court acknowledged the appellant's early guilty plea and other mitigating factors, but ultimately concluded that the sentence was appropriate given the gravity of the offence. The court found the sentence to be proportionate to the severity of the crime and rejected the appeal against sentence.

Orders