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Sherna v The Queen

Sherna v The Queen

Case [2011] VSCA 242 23 August 2011

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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.

It is…

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.

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Details

AGLC: Sherna v The Queen [2011] VSCA 242
Case: [2011] VSCA 242
Decision Date: 23 August 2011

CaseChat Overview and Summary

Sherna v The Queen was a case heard in the High Court of Australia where the defendant appealed against the sentence imposed by the lower court. The defendant was convicted of manslaughter and sentenced to 14 years in prison with a non-parole period of 10 years. The primary legal issue before the court was whether the sentencing judge had erred in determining the appropriate sentence, particularly whether sufficient weight was given to the defendant’s offer to plead guilty to a lesser offence, and whether the judge correctly assessed the nature and gravity of the offence. Additionally, the court examined whether the sentencing judge had considered the impact of the abolition of the partial defence of provocation on the sentencing for manslaughter and whether the sentence was within the permissible range.

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.

Orders