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Surtees v The King

Surtees v The King

Case [2023] VSCA 42 7 March 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0043

ANGELA SURTEES	Applicant
v
THE KING	Respondent

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JUDGES:	KYROU, WALKER and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2023
DATE OF JUDGMENT:	7 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 42
JUDGMENT APPEALED FROM:	[2022] VSC 124 (Tinney J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Guilty plea – 12 years’ imprisonment – Non-parole period 8 years – Whether manifestly excessive – Mitigating factors including guilty plea during COVID-19 pandemic and no prior convictions – Current sentencing practices – Appeal allowed – Resentenced to 10 years 6 months’ imprisonment – Non-parole period 7 years.

Sentencing Act 1991 s 5(2)(b).

Director of Public Prosecutions (Vic) v Dalgleish (2017) 262 CLR 428; Lieu v The Queen [2016] VSCA 277; Worboyes v The Queen [2021] VSCA 169, followed. Hopkins v The Queen [2015] VSCA 174; R v Alipek and Saltmarsh [2004] VSC 206, considered. Director of Public Prosecutions v Osborn [2018] VSCA 207; Director of Public Prosecutions v Torun [2015] VSCA 15; Kells v The Queen [2013] VSCA 7; Edwards v The Queen [2020] VSCA 339; Director of Public Prosecutions v Turner [2017] VSC 358; Director of Public Prosecutions v Ristevski [2019] VSCA 287, discussed.

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Counsel
Applicant:		Ms J Munster
Respondent:		Mr BF Kissane KC
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
KAYE JA:

For the following reasons, we agree with Walker JA that the applicant should be granted leave to appeal, her appeal against sentence allowed, and the applicant be resentenced to 10 years and 6 months’ imprisonment with a non-parole period of 7 years.
In considering the question whether the sentence imposed on the applicant was wholly outside the range of sentences available to the judge, the starting point, necessarily, is that the offending involved a particularly serious instance of manslaughter by an unlawful and dangerous act. The actions of the applicant, in dowsing her husband in a substantial quantity of petrol, and then igniting a cigarette lighter in close proximity to him, in order to put him in fear, were each serious criminal assaults.
It was unarguable that the actions of the applicant were ‘dangerous’, in the sense that a reasonable person in her position would have realised that she was exposing her husband to ‘an appreciable risk of serious injury’.[1] Based on the applicant’s statement to the police that the jerry can was some 85 per cent full when she picked it up, it would seem that she poured at least eight litres of petrol on him. As a result, the room in which they were both located must have reeked of the fumes of the petrol. The actions of the applicant in pouring such a large quantity of inflammable petrol over Mr Surtees, and then igniting a cigarette lighter close to him, were actions which a reasonable person would…

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 Surtees v The King

Details

AGLC: Surtees v The King [2023] VSCA 42
Case: [2023] VSCA 42
Decision Date: 7 March 2023

CaseChat Overview and Summary

Surtees appealed against his sentence for manslaughter, arguing it was manifestly excessive. The Court of Appeal considered the original sentence of 12 years’ imprisonment with a non-parole period of 8 years, the mitigating factors presented, and the current sentencing practices. The appellant had pleaded guilty during the COVID-19 pandemic and had no prior convictions. The court examined the relevant legal principles, including those set out in the Sentencing Act 1991, and referred to several precedents to assist in its decision.

The court had to decide whether the original sentence was manifestly excessive, taking into account the appellant's guilty plea and the absence of prior convictions. The mitigating factors were weighed against the gravity of the offence. The Court of Appeal compared the sentence to other cases with similar circumstances and considered the appellant's remorse and cooperation with authorities. The court also assessed the impact of the COVID-19 pandemic on the proceedings and the appellant’s decision to plead guilty under such conditions.

In light of the mitigating factors and the comparison with other cases, the Court of Appeal found the original sentence to be manifestly excessive. The appellant was resentenced to 10 years and 6 months’ imprisonment with a non-parole period of 7 years. The court highlighted the importance of ensuring sentences are proportionate to the crime and the offender's circumstances, while also considering current sentencing practices and the overall deterrence and rehabilitation objectives.

The final orders of the Court of Appeal were that the original sentence of 12 years’ imprisonment with a non-parole period of 8 years be set aside. The appellant was resentenced to 10 years and 6 months’ imprisonment with a non-parole period of 7 years. The appellant's conviction for manslaughter was upheld, and the amended sentence was deemed appropriate under the circumstances.

Orders