SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0914
| ANTHONY SHERNA | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and HANSEN JJA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 July 2011 | |
DATE OF JUDGMENT: | 23August 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 242 | |
JUDGMENT APPEALED FROM: | [2009] VSC 526 (Beach J) | |
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CRIMINAL LAW – Manslaughter – Sentence of 14 years imprisonment with non-parole period of 10 years – Whether sufficient weight given to offer to plead guilty to offence upon which applicant was convicted – Whether sentencing judge considered that abolition of partial defence of provocation meant that sentences for other kinds of manslaughter should be increased – Whether sentencing judge erred in determining that the nature and gravity of offence was at the serious end of the range of manslaughter – Whether sentence manifestly excessive – Sentence within permissible range – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Lewenberg & Lewenberg |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
The applicant, Anthony Sherna, now 46 years of age, was arraigned in the Supreme Court on one count of murder, to which he pleaded not guilty. On 31 October 2009, after a second trial[1] a jury returned verdicts of not guilty to murder, and not guilty to defensive homicide, but guilty to manslaughter. On 20 November 2009 the judge sentenced the applicant to 14 years imprisonment. He fixed a non-parole period of 10 years.
[1]The jury at an earlier trial had been unable to agree upon a verdict.
The applicant now seeks leave to appeal against his sentence on the following grounds:
1.The learned sentencing judge failed to accord any, or sufficient, weight to the fact that, prior to the commencement of the trial, the applicant had offered to plead guilty to the offence of manslaughter, the offence upon which the applicant was convicted. (Reasons for Sentence at para [23])
2.The learned sentencing judge failed to accord any, or sufficient, weight to the fact that, in her final address to the jury, counsel for the applicant invited the jury to convict the applicant of the offence of manslaughter, the offence upon which the applicant was convicted, and the circumstances in which that invitation was extended. (Reasons for Sentence at para [16])
3.The learned sentencing judge erred in determining that the nature and gravity of the offence committed by the applicant ‘[fell] at the serious end of the range [that is, at the upper or top end of the range] of the crime of manslaughter.’ (Reasons for Sentence at para [32])
4.The sentence imposed is, in all the circumstances of the case, manifestly excessive.
Circumstances of the offending
The applicant and the deceased lived together in a de facto relationship from the second part of 1989 until the date of her killing on 2 February 2008. When they met, the applicant was 23, and the deceased was 35.
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- AGLC
- Sherna v The Queen [2011] VSCA 242
- Case
- [2011] VSCA 242
- Decision Date
CaseChat Overview and Summary
The High Court found that the sentencing judge had appropriately considered the offer to plead guilty and the relevant sentencing principles. The court held that the sentencing judge had correctly assessed the nature and gravity of the offence as being at the serious end of the range of manslaughter offences. The court also determined that the judge did not err in considering the impact of the abolition of the partial defence of provocation, which did not necessarily mean an increase in sentences for other kinds of manslaughter. The High Court concluded that the sentence was within the permissible range and did not find it to be manifestly excessive.
Accordingly, the court dismissed the appeal, refusing the defendant's application to reduce the sentence. The sentence of 14 years imprisonment with a non-parole period of 10 years was upheld as appropriate and within the bounds of judicial discretion.
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Decision
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