Stensholt v The Queen

[2014] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0064

LEAH MARIE STENSHOLT
	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGE:	REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2014
DATE OF JUDGMENT:	1 August 2014
MEDIUM NETURAL CITATION:	[2014] VSCA 171
JUDGMENT APPEALED FROM:	R v Stensholt (Unreported, Supreme Court of Victoria, Justice Curtain, 24 March 2014)

DETERMINED ON THE PAPERS

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CRIMINAL LAW – Sentence – Murder – Sentence of 20 years’ imprisonment with non-parole period of 16 years – Whether manifestly excessive – Applicant broke into victim’s home and killed her in context of domestic custody dispute with victim’s son – Intention to kill formed at point of entry into house – Applicant made taunting phone call to victim’s son in aftermath of murder – Limited weight to be given to remorse – Offending at upper end of lowest category of seriousness for the offence – Leave to appeal refused.

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NO APPEARANCES BY LEAVE OF THE COURT	Counsel	Solicitors
For the Applicant	Victoria Legal Aid
For the Crown	Mr C Hyland Solicitor for Public Prosecutions

REDLICH JA:

1. The applicant seeks leave to appeal her sentence for one count of murder.  The victim was the applicant’s former mother-in-law.  The offence took place in the context of an ongoing dispute about custody of the applicant’s children, who were the victim’s grandchildren.

2. Following a plea in mitigation, the applicant was sentenced to 20 years’ imprisonment, with a non-parole period of 16 years.  The sole ground of appeal is that the sentence imposed was manifestly excessive, having regard to the applicant’s plea of guilty, other evidence of her remorse, the numerous matters available to her in mitigation and the range of appropriate sentences, as indicated by current sentencing practices.

   Circumstances of the offending

3. The victim, Carol McDonald (‘McDonald’) was the mother of the applicant’s former partner, Paul.  Paul and the applicant had three children together.  They had formally separated in 2008, though no court orders had been made in regard to custody of the children, and the custody arrangements between the two appeared to have been relatively cooperative and amiable.

4. In 2012, all three children lived with their father, with the younger two spending every second weekend with their mother.  This arrangement changed in early 2013, when the younger two began to reside with their mother on a permanent basis, visiting their father every weekend.  The new arrangement, though instigated by the applicant, was accepted by Paul.  The eldest child lived at all times with her father and his new partner.

5. The relationship between the applicant and Paul had commenced in 1999, and had pursued a somewhat volatile course, marked by Paul’s heavy drinking and a number of separations and reconciliations, until the formal separation.  When the applicant was pregnant with the first child of the relationship, McDonald and her husband (since…