Surtees v The King
[2023] VSCA 42
•7 March 2023
| 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 have readily understood exposed Mr Surtees, not only to an appreciable risk of serious injury, but to an extremely high such risk.
[1]Wilson v The Queen (1992) 174 CLR 313, 332–3 (Mason CJ, Toohey, Gaudron and McHugh JJ).
In assessing the gravity of the offending, it is necessary to take into account, not only the degree of risk to which the applicant exposed her husband, but also the nature and degree of the serious injury which would ensue in the event that the risk materialised. In the present case, by her criminal actions, the applicant clearly exposed her husband to a very high risk of being severely injured by being immolated while doused in a large quantity of petrol.
Further, the applicant’s conduct was not confined to one instantaneous or momentary action. It involved a number of deliberate steps. She took hold of a heavy twenty litre jerry can which was almost full, and poured a large quantity of its contents onto her husband. After he lunged at her, she pushed him backwards, obtained the cigarette lighter, ignited it, and threatened him with it.
Accordingly, the judge was correct in assessing the objective gravity of the applicant’s offending, and her subjective moral culpability, to be very high.[2] The applicant’s culpability was exacerbated by the circumstance that the incident occurred in her own home, when Mr Surtees was offering no physical threat to her. She committed the offence in close proximity to her three children, who were exposed to and observed its terrible aftermath. The applicant’s irresponsible conduct was the direct cause of Mr Surtees sustaining appalling and extremely painful injuries which resulted in his death.
[2]R v Surtees [2022] VSC 124, [85] (‘Reasons’).
For those reasons, as the judge correctly concluded, the applicant’s offending in this case was a ‘serious example of the crime of manslaughter’.[3]
[3]Ibid [125].
On the other hand, the applicant had available a number of important mitigating factors which were required to be taken into account, and given appropriate weight.
The judge correctly accepted that the applicant’s plea of guilty was a ‘significant matter in mitigation’.[4] As this Court has recognised in Worboyes v The Queen,[5] a plea of guilty entered during the currency of the COVID-19 pandemic should be accorded more substantial weight in mitigation of sentence than a similar plea entered at a time when the community and the courts have not been impeded by the effects of the pandemic.[6] That proposition must be given appropriate effect in the sentencing synthesis. The ongoing pandemic has had the effect that the list of cases awaiting trial in the courts has greatly proliferated. In those circumstances, a plea of guilty is of particular utilitarian value to the justice system, as it enables other cases, which are awaiting trial, to be heard at an earlier date.
[4]Ibid [95].
[5][2021] VSCA 169.
[6]Ibid [35]–[39] (Priest, Kaye and T Forrest JJA).
In addition, as the judge correctly acknowledged, it was necessary to take into account, as a mitigating factor, the more onerous conditions of incarceration which have applied as a result of steps taken by the prison authorities to prevent the spread of the COVID-19 virus in the prison population. Those circumstances had made, and at least for some time would continue to make, the conditions in which the applicant had been detained, and in which she would serve her sentence, significantly more restrictive and difficult. That consideration, in the present time, is of importance in the sentencing process. Any given period of time spent by a prisoner in custody has been, and is likely to continue to be, significantly more punitive than its numerical equivalent before the onset of the current pandemic. Further, as the judge noted, the applicant was entitled to have taken into account the reasonably lengthy period which had elapsed from the time when she had been charged until her sentence, and the consequent stress and anxiety which she had experienced as she had awaited her fate.[7]
[7]Reasons, [121].
In addition to those considerations, the applicant was entitled to rely on a number of relevant personal circumstances in mitigation of sentence. At the time of sentence, she was 34 years of age, and she had no previous convictions. Apart from the offending in the present case, she was otherwise of good character. The judge, understandably, assessed the applicant’s prospects of rehabilitation as being ‘very good’.[8] Relevantly, when she was taken into custody, her two youngest children were then aged six years and four years respectively. The judge correctly recognised that the fact that the applicant had been separated, and would remain separated, from her children had been and would be ‘extremely difficult’ for her. The fact that the applicant would be unable to care for her children, including the second oldest child, who is autistic, would render her sentence to be even more onerous for her.[9]
[8]Ibid [131].
[9]Ibid [109].
Taken together, those mitigating circumstances, which the judge properly recognised, were matters which were required to be accorded appropriate weight in the sentencing synthesis.
Walker JA has outlined, in some detail, the ‘comparable cases’ that were put before the sentencing judge and which were referred to on this application. In considering those cases, it is important to bear in mind three relevant considerations.
First, as the High Court has emphasised in Director of Public Prosecutions (Vic) v Dalgleish,[10] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in the determination of a sentence in each case, nevertheless that factor is only one of a number of considerations which must be taken into account in the exercise of the sentencing discretion.[11]
[10](2017) 262 CLR 428; [2017] HCA 41.
[11]Ibid, 434 [9] (Kiefel CJ, Bell and Keane JJ).
Secondly, it is important to bear in mind the necessary limitations in deriving any current sentencing practice from an examination of the sentences that have been imposed in other ‘comparable’ cases. In Lieu v The Queen,[12] this Court adverted to those limitations in the following terms:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[13]
[12][2016] VSCA 277.
[13]Ibid [46].
Thirdly, as Walker JA has pointed out, the offence of manslaughter may be committed in a particularly wide range of circumstances, with widely differing levels of culpability
and objective gravity. As a result, any attempt to identify a current sentencing practice that is relevant to the facts of a particular case may be quite elusive.
Taking those caveats into account, nevertheless the sentencing decisions, to which we have been referred do, in a broad sense, provide an indication of the current sentencing practices in cases which have involved more serious instances of the offence of manslaughter. As such, they are relevant in that they demonstrate that the sentence, imposed on the applicant in the present case, was at virtually the highest level of any sentences that have been imposed for the offence of manslaughter by an unlawful and dangerous act. It has not been suggested, nor do we consider, that the current sentencing practices for such cases of manslaughter are inadequate or inappropriate.
In conclusion, the offence committed by the applicant was a serious instance of the crime of manslaughter. The applicant’s subjective culpability for it was substantial. We would accept that, in the absence of the mitigating factors relied on by the applicant, a sentence of 12 years’ imprisonment might well have been within range. In particular, in a case such as this, it was important that the sentence be adequate to fulfil the sentencing purposes of general deterrence and denunciation.
However, as we have discussed, there were a number of relevant mitigating circumstances which were required to be taken into account, and given appropriate weight, in the sentencing synthesis. We are conscious that the particular weight that should be accorded to the mitigating circumstances, that were relied on by the applicant, was very much a matter for the discretionary judgment of the sentencing judge. Nevertheless, those mitigating factors were not inconsequential, and it was necessary that they be given appropriate weight. Taking those factors into account, and bearing in mind the current sentencing practices for serious instances of the crime of manslaughter, we are persuaded that the sentence imposed in this case could not have taken into account, or attributed other than nominal weight to, those mitigating circumstances. It follows that we have concluded that the sentence imposed on the applicant was manifestly excessive.
For those reasons, we agree that the application for leave to appeal should be granted, the appeal allowed, and in lieu of the sentence imposed by the judge, the applicant be sentenced to 10 years and 6 months’ imprisonment, with a non-parole period of 7 years.
WALKER JA:
On 30 July 2021, the applicant, Angela Surtees, pleaded guilty before a judge of the Supreme Court to the manslaughter of Daniel Surtees, her husband and the father of two of her four children. Mr Surtees died on 26 January 2020 from burn injuries sustained on 25 January 2020 after the applicant doused him with petrol and ignited a cigarette lighter near him, which caused him to catch fire. The applicant did not intend for Mr Surtees to catch fire, but did intend for him to fear that he would do so. The applicant pleaded guilty on the basis that she had caused Mr Surtees’ death by deliberately committing an act that was unlawful and dangerous.
The applicant was sentenced as follows:[14]
[14]R v Surtees [2020] VSC 124 (‘Reasons’).
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Manslaughter (contrary to common law)
20 years
12 yearsN/A Total Effective Sentence: 12 years’ imprisonment Non-Parole Period: 8 years Section 6AAA Statement: Total Effective Sentence 14 years
Non Parole-Period 10 years
The applicant now seeks leave to appeal against sentence on the basis that the head sentence and the non-parole period are manifestly excessive.
For the reasons that follow, I would grant leave to appeal and allow the appeal. In my opinion, although the offending was very serious, and the applicant’s moral culpability was high, when regard is had to the various mitigating factors she called in aid, and to the range of sentences for manslaughter imposed in comparable cases, both the head sentence and the non-parole period were outside the range of sentences reasonably open to the sentencing judge in the circumstances of this case.
I would resentence the applicant as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Manslaughter (contrary to common law)
20 years10 years and 6 months N/A Total Effective Sentence: 10 years and 6 months’ imprisonment Non-Parole Period: 7 years Section 6AAA Statement: Total Effective Sentence: 12 years and 6 months
Non Parole-Period: 9 years and 3 months
Factual background
The facts on the plea were agreed between the parties and were set out in a document entitled ‘Amended Summary of Prosecution Opening For Plea’. The agreed facts relevantly included the following by way of background to the relationship between the applicant (who is referred to as ‘the accused’) and Mr Surtees (who is referred to as ‘the deceased’):
The deceased was born on 8 May 1983 and was 36 years old at the time of his death. The accused was born on 22 September 1986 and was 33 years old at the time of the offending. She is now 34 years old.
At the time of these events, the accused and the deceased had been in a relationship for almost 10 years. They were married in October 2017 and had two children together – Tiffany, who was six years old and Ariah, who was four years old. The deceased and the accused both had children from previous relationships. The deceased and his former partner, Emma Wischmann, had a daughter, Myrandah, who was 13 years old. The accused and her former partner, Felipe Elliott, had two children: Blake, who was 11 years old and Elsie, who was 13 years old. Blake lived with the accused, the deceased, Tiffany and Ariah at the Boundary Road address. Myrandah and Elise lived at different addresses.
Those who knew the accused and the deceased described their relationship as volatile. Family members stated that the accused and the deceased loved each other, but they also argued. A housemate described them having ‘screaming matches’ and slamming doors. Sometimes their arguments ‘got out of hand and they hit each other’. In June 2016, prior to their marriage, the Victorian Child Protection Service received a report regarding the exposure of Blake, Aria and Tiffany to verbal family violence within the home. A Child Protection investigation was not pursued, but the family were referred to Child First for support.
On 13 November 2017 at the Geelong Magistrates’ Court, the deceased pleaded guilty to a charge of unlawful assault committed upon the accused. He received a two-year adjourned undertaking without conviction. The offending occurred on 29 June 2017 when, during an argument, the deceased smashed a plate of food, used a toy vacuum cleaner to hit the accused to the back of her head (hitting her ponytail) and grabbed her around the neck with one hand. In response, the accused grabbed two nearby kitchen knives, placed them to the deceased’s neck, and told him to get off. The deceased backed off, pushed the accused on the side of her face and left the house. A condition of the adjourned undertaking was that the deceased complete a men’s behaviour change program, which he did through Bethany Community Support, completing the program in February 2019.
According to the accused’s mother, the accused ‘gave as good as she got’. According to the accused’s sister, they were ‘as bad as each other’. There were times when the accused told her mother and sister that she had considered leaving the deceased.
In relation to the events leading up to Mr Surtees’ death, the parties agreed on the following facts:
On the afternoon of 25 January, the accused, the deceased and their children, Tiffany, Ariah and Blake, attended an engagement party at a house in Corio. Myrandah and Elsie did not attend the engagement party. The accused’s youngest brother, Zac Kennedy, was hosting the party with his fiancée, Madeline Whatmore.
People at the party were drinking alcohol, including the deceased. At some stage during the party, the deceased overheard other party-goers making remarks that he thought were about him. He was offended and became angry. The accused and other family members tried to placate him, without success. He talked about fighting other people at the party and made derogative comments to the accused in front of her mother and step-father. Eventually, after efforts to calm the deceased, the accused suggested they just leave. She collected the three children and waited in the car until the deceased joined them. They left at around 7.00pm.
During the car ride home, the deceased continued to argue with the accused about what had happened at the engagement party. In an agitated state, he punched the dashboard and broke the lid of the centre console of the accused’s car.
The deceased and the accused continued to argue when they got home. A neighbour heard them yelling for about 20 minutes. The deceased threw a red rubbish bin, spilling rubbish in the front of the house. The accused’s son, Blake, was told to help the deceased pick up the rubbish. He went out the back of the house to get a shovel and saw the accused crying. At some stage, a local man, Jason Kos, passed by the house on his skateboard and the deceased also yelled at him. He and a friend, Jackson Keech, returned to the house and spoke to the deceased, who was angry but eventually calmed down and shook hands with the men.
Shortly afterwards, while the children were inside watching television in the loungeroom, the accused and the deceased were in the front room of the house, which is an enclosed porch area referred to as a ‘sunroom’. The deceased was sitting in an armchair in the corner of the sunroom.
The accused, stirred up by the events of the day and aggravated by the behaviour of the deceased, got hold of a 20-litre red jerry can which contained unleaded fuel. According to Blake Elliott, the jerry can was usually stored in the shed out the back, but he had seen it in the sunroom a day or two before these events. The accused removed the cap of the jerry can and poured a significant quantity of petrol onto the deceased while he was sitting in the armchair.
The deceased lunged at the accused, and the accused pushed him backwards to the armchair. The accused obtained a cigarette lighter and ignited it. She threatened the deceased with the lit lighter in close proximity to him. The deceased then ignited. The prosecution concedes that the accused did not intend to ignite the deceased, however, she did intend him to fear that he would catch fire.
The accused’s left sleeve also caught fire. She later told the 000 operator this occurred when she was trying to put out the flames.
By dousing the deceased and the armchair in petrol and threatening the deceased with a lit cigarette lighter in close proximity to him, the accused committed an unlawful and dangerous act.
Blake Elliott saw orange light coming from the front of the house. He saw the accused go onto the ground on fire. He ran from the loungeroom to the kitchen, filled a jug of water, ran outside and saw her spraying the deceased with a hose on the front lawn. The armchair was still on fire. Blake called 000 and handed the phone to the accused.
The accused spoke to the 000 operator. She said:
a. She was having an argument with her husband.
b. He grabbed a ‘thing’ of lawnmower petrol.
c. They were fighting over it.
d. She spilled it and accidentally set him on fire.
A few moments later she said, ‘it spilled and ignited while he was lighting a cigarette’.
During the call, the voice of the deceased could be heard in the background, in apparent agony. The 000 operator immediately arranged for an ambulance to attend the house.
The agreed facts also reveal, and the sentencing judge found, that after the incident the applicant gave varying accounts of what had occurred and attempted to shift blame for the incident onto Mr Surtees.[15]
[15]Reasons, [67].
The sentencing judge’s reasons
After setting out the facts concerning the offending and its aftermath, the sentencing judge considered the applicant’s mental state and whether any of the Verdins[16] principles applied.[17] The applicant had contended that the first four Verdins principles were enlivened, based on evidence from a forensic psychologist, Professor Ogloff.[18] Professor Ogloff had assessed the applicant as meeting the criteria for post-traumatic stress disorder at the time of his assessment.[19] In contrast, the Crown challenged the applicability of any of the Verdins principles.[20]
[16]R v Verdins (2007) 16 VR 269, 276 [32]; [2007] VSCA 102 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
[17]Reasons, [47].
[18]Reasons, [47].
[19]Reasons, [52].
[20]Reasons, [59].
The judge set out the following passages from Professor Ogloff’s report:[21]
It is my opinion that in the time leading up to the offence (i.e., from the time they returned home from the engagement party until she set Mr Surtees alight), Ms Surtees would have been affected by some symptoms consistent with Posttraumatic Stress Disorder, but her symptoms were not acute. The symptoms (e.g., fear of being seriously harmed, being distressed and physiologically aroused) exacerbated partly during the altercation where she reported being frightened and was unable to pacify Mr Surtees as she said she had in the past. …
Ms Surtees engaged in the unlawful and dangerous behaviour that led to Mr Surtees’ death in the context of a serious episode of domestic violence that lasted for several hours (from the events at the party through to her lighting the lighter). The events of the day and Mr Surtees’ behaviour followed a longstanding pattern, although the situation was more extreme than had been the case previously.
In my opinion the link between Ms Surtees’ actions and her traumatic stress disorder was indirect. Doubtless her previous experiences of abuse, both at the hands of others and by Mr Surtees, contributed to the fear she felt during the altercation and particularly when Mr Surtees physically attacked her after she spilled the petrol on him. Her emotional state and physiological arousal would have reduced her ability to consider her actions fully and rationally. However, her actions were not driven directly by her mental illness; rather, in the heat of the moment, Mr [sic] Surtees appeared to have acted impulsively to stop Mr Surtees’ behaviour.
[21]Reasons, [53]–[54].
The judge also observed that in oral evidence Professor Ogloff said that there was no direct link between the past trauma experienced by the applicant and her ultimate act of killing Mr Surtees; rather, the link was an indirect one: the overlay of trauma would have had some influence on her behaviour and thinking, but did not directly cause the conduct.[22] Prior events and history had ‘primed’ the applicant for behaving in a more extreme way than would be normal without such a background.[23]
[22]Reasons, [55].
[23]Reasons, [55]–[56].
The judge observed that Professor Ogloff’s opinion was based on an account of the offending that the applicant had given to Professor Ogloff, and that this account ‘did not sit at all comfortably with any of the earlier accounts’ the applicant had given to others, or with the facts as set out in the Amended Summary of Prosecution Opening for Plea, which had formed the basis for the applicant’s plea of guilty.[24] Ultimately, his Honour concluded that significant aspects of the account given by the applicant to Professor Ogloff were untrue.[25] Professor Ogloff’s assessment was tainted by the applicant’s false account, which was a deliberate attempt to shift a degree of blame onto Mr Surtees.[26] In light of these matters, the value of Professor Ogloff’s opinions was ‘markedly diminished to say the least’.[27]
[24]Reasons, [51].
[25]Reasons, [64].
[26]Reasons, [67].
[27]Reasons, [68].
In relation to the application of the Verdins principles, the judge held that, even taking Professor Ogloff’s evidence at its highest, the material advanced did not warrant the enlivening of any of the Verdins principles.[28] That was because ‘the indirect link attested to by Professor Ogloff fell short of being the type of link or connection required’.[29] There is no challenge on the appeal to the judge’s conclusion concerning the inapplicability of the Verdins principles.
[28]Reasons, [61].
[29]Reasons, [61].
The judge then turned to the behaviour of Mr Surtees, the significance of family violence, and the question of provocation. His Honour held that the applicant’s relationship with Mr Surtees was marked by verbal and sometimes physical aggression by Mr Surtees, but it was not ‘the sort of very troubled relationship marked by frequent violence and controlling behaviour considered by Croucher J in … The Queen v Donker.’ Rather, the judge held, it was ‘a loving, albeit volatile, relationship’.[30]
[30]Reasons, [81].
The judge concluded that, while on the day in question Mr Surtees had been ‘drunk and pugnacious’ and ‘argumentative and aggressive’, he was not physically abusive to the applicant.[31] The applicant was relatively sober, had tried to placate Mr Surtees and was unhappy about his behaviour.[32] In particular, the judge was not satisfied that Mr Surtees had grabbed the applicant around the neck or forced her against the wall.[33] The judge held that Mr Surtees had behaved poorly, and had caused the applicant to be upset and angry.[34] But his Honour held that nothing Mr Surtees had done could be considered to be capable of causing an ordinary person, fixed with the applicant’s exposure to family violence, to lose control and act as she had acted.[35] The judge held that what the applicant did ‘was a very extreme overreaction to his conduct’.[36] The judge described that conduct as follows:
[Y]ou lost your temper and allowed yourself to do something extraordinary and, I accept, quite outside your normal behaviour. You obtained the jerry can, deliberately poured a good deal of petrol over [Mr Surtees], and then lit the cigarette lighter. You took, therefore, a number of deliberate steps in a very dangerous and outrageous direction, without ever stopping in your tracks to ponder whether you should continue in pursuit of the shocking and life threatening design you had recently fixed upon.[37]
[31]Reasons, [72].
[32]Reasons, [72].
[33]Reasons, [72], [74].
[34]Reasons, [82].
[35]Reasons, [82].
[36]Reasons, [82].
[37]Reasons, [82].
The judge also rejected a submission that there was no ‘substantial premeditation’:
Yours was certainly not a well-planned, long-considered crime, but neither was it unpremeditated. Although your crime was carried out over a short period of time, as I have said it involved a number of deliberate steps. You had time to stop, think, and desist. You did not do so.[38]
[38]Reasons, [83].
The judge then turned to the nature and gravity of the offence, and the applicant’s culpability and degree of responsibility. He held that the objective gravity of the crime was very high.[39] It was a ‘crime of serious family violence’, resulting in Mr Surtees’ loss of life.[40] It also removed him from the lives of his children.[41] Pouring a large amount of fuel over Mr Surtees was a serious assault; and igniting a cigarette lighter, intending to cause Mr Surtees to fear that he would be set on fire, was a serious and frightening assault in its own right.[42] The judge observed that it was no small thing to pour that amount of petrol on Mr Surtees.[43] Having done so, the applicant must then have placed the container on the floor, picked up the lighter, and operated it.[44] The judge held that the applicant must have known that she was exposing Mr Surtees to great danger (although that is not an element of the offence of manslaughter).[45] Further, Mr Surtees was in his own home, seated and offering no physical threat at the time of the assault.[46] The applicant could simply have walked away.[47] In addition, the crime was committed in close proximity to the applicant’s three young children in the house, all of whom were in a position to witness at least some of the shocking and distressing aftermath of the crime.[48] The judge also observed that the shocking and painful nature of the fatal injuries inflicted on Mr Surtees was clear, and that it is difficult to imagine a death that more appals the conscience than death by burning.[49] In light of these matters, the judge concluded that the applicant’s moral culpability was high.[50]
[39]Reasons, [85].
[40]Reasons, [86].
[41]Reasons, [86].
[42]Reasons, [87].
[43]Reasons, [89].
[44]Reasons, [89].
[45]Reasons, [89]–[90].
[46]Reasons, [91].
[47]Reasons, [91].
[48]Reasons, [92].
[49]Reasons, [93], quoting from Hopkins v The Queen [2015] VSCA 174, [28] (Redlich JA for the Court) (‘Hopkins’).
[50]Reasons, [94].
The judge then turned to the plea of guilty and the question of remorse. His Honour accepted that the plea, although not early, was a significant matter in mitigation, especially in the context of the pandemic.[51] In relation to remorse, the judge held that letters that the applicant had sent to Mr Surtees’ brother, as well as a letter she wrote to the Court, revealed a strong sense of self-pity and an absence of remorse.[52] His Honour accepted that the applicant was ‘remorseful to a point’, but was of the view that she had ‘some distance to travel before [reaching] an appropriate level of acceptance and true remorse’.[53] He considered that she had been slow to fully accept that she, and she alone, was responsible for Mr Surtees’ death.[54]
[51]Reasons, [95], citing Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
[52]Reasons, [97]–[99].
[53]Reasons, [101].
[54]Reasons, [101].
The judge then turned to the applicant’s personal background. He observed that much of her childhood was affected by the break ups of her mother with respective partners and the resultant instability.[55] He also accepted that her life had been significantly impacted by trauma as a result of sexual abuse and family violence.[56] He observed as follows:
You have had two significant relationships with men. The first was characterised by significant family violence. As for your relationship with [Mr Surtees], I accept that it was not perfect, being, in particular, marred by his difficulties with alcohol, but the fact is, you still claim a deep emotional connection with him and a deep love for him.
You have no prior convictions and are to be sentenced as a person of good character, for whom this offending was entirely out of character.
I accept that you have obtained appropriate mental health care in prison and have sought to make the most of your time in custody, having engaged in a large number of educational and other courses.[57]
[55]Reasons, [103].
[56]Reasons, [103].
[57]Reasons, [106]–[109].
The judge observed that the applicant being separated from her children had been, and would continue to be, extremely difficult for her, and that her inability to care for and support her children, including Blake who is autistic, has had a heavy impact upon her.[58]
[58]Reasons, [109], citing Markovic v The Queen (2010) 30 VR 589, 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.
In relation to prospects of rehabilitation, the judge observed that Professor Ogloff had assessed the applicant as presenting a low risk of future offending.[59] His Honour accepted that assessment, given the applicant’s lack of criminal history and her plea of guilty, but he added that her willingness to acknowledge her guilt, and her sole responsibility for Mr Surtees’ death, will be an important part of her rehabilitative prospects.[60]
[59]Reasons, [110].
[60]Reasons, [110].
The judge then referred to the 17 victim impact statements received from family members and friends of Mr Surtees. These were ‘eloquently illustrative of the profound distress, pain, and unbearable sense of floss flowing directly from [the] crime to its many victims’.[61]
[61]Reasons, [111].
The judge also took into account the delay of two years that had elapsed from the time the applicant was charged, the stress and anxiety she had experienced as she awaited her fate, as well as the onerous conditions of incarceration she had experienced as a consequence of steps taken in prisons to prevent the spread of COVID-19.[62]
[62]Reasons, [121].
Next, the judge referred to current sentencing practices. He observed that he had considered the most recent Sentencing Snapshot from the Sentencing Advisory Council in relation to manslaughter,[63] the Council’s statistics for the crime of manslaughter, and comparable cases to which he had been referred.[64] The judge observed as follows:
There is a limit to the use of statistics and sentences passed in other cases, particularly in the case of a crime such as manslaughter which spans such a wide breadth of criminality. Where comparable cases are concerned, it must be remembered that no sentence passed in any other case amounts to a precedent for the sentence I must pass on you. At best, sentences in so-called comparable cases may provide a general guide or impression of the appropriate range.
I note that none of the cases to which I was referred involved facts which closely resembled those in this case.[65]
[63]Sentencing Advisory Council, Sentencing Snapshot 249: Sentencing Trends for Manslaughter in Higher Courts of Victoria 2015-16 to 2019-20 (30 March 2021).
[64]Reasons, [123].
[65]Reasons, [123]–[124].
The concluding part of the sentencing judge’s reasons was as follows:
Your unlawful killing of Daniel Surtees was a serious example of the serious crime of manslaughter. In the context of an ongoing argument, you lost your temper and proceeded, in most deliberate fashion, to carry out acts upon your husband which were disturbing and represented a most extreme and disproportionate over-reaction to anything he had done. The acts carried with them a high degree of danger which would be apparent to any person and must have been apparent to you. The very idea of a person pouring petrol over his or her spouse then lighting a cigarette lighter in close proximity, intent upon causing the spouse to fear being set alight, only needs to be stated for its horrific nature to be readily apparent. You did this while [Mr Surtees] sat harmlessly and helplessly in an armchair in his home, with his and your children in close proximity.
Your crime was committed in a setting of family violence. In Felicite v The Queen, a case which concerned the murder of a domestic partner, the Court of Appeal stated:
The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust, upon which our society rests. The sentence must reflect both the sanctity of human life and society’s abhorrence of violence towards vulnerable and trusting partners, who could legitimately have expected the offender to be the protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.
Those statements, albeit that they were made in connection with a murder and not a manslaughter, have application to this case.
To my mind, all of the purposes for which a sentence may be imposed which are set out in s 5(1) of the [Sentencing Act 1991] are relevant in your case, with some assuming more importance. I believe just punishment, denunciation and general deterrence are the most important sentencing purposes to be served.
You must be punished in a way which reflects the considerable seriousness of your crime and amounts to an appropriate response to it. The sentence of this Court must make it perfectly clear that the Court deplores the sort of unforgiveable family violence in which you engaged. The life of Daniel Surtees was precious, as the victim impact statements make clear, and the loss of that life is a tragedy for which you, and you alone, are responsible. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to engage in violent conduct endangering the life of a family member, albeit in a state of anger and loss of control, that such conduct will be met with very strong punishment.
I accept that in your case, specific deterrence and the need to protect the community have less of a role to play than would often be the case in the sentencing synthesis. That does not mean that they cease to have any significance.
As for rehabilitation, in the circumstances, and in particular, bearing in mind your young age and your lack of prior convictions, I believe your prospects of rehabilitation are very good. I will pass a sentence which will pay proper regard to those prospects, and in particular, will include as part of it a non-parole period which will allow for the potential of a significant period of time in the community under the supervision of parole. Having said that, it must be remembered that both the head sentence and non-parole period must pay due regard to the purposes to be served by the sentence.[66]
[66]Reasons, [125]–[131] (citations omitted).
The applicant’s submissions
The applicant submitted that it was not reasonably open to the sentencing judge to impose a sentence of 12 years, with a non-parole period of 8 years, if proper weight was given to all relevant factors, and that the sentence imposed is manifestly too long.
First, the applicant addressed the objective gravity of the offending. She submitted that, while the offending involved inherently dangerous conduct, she did not have an intention to cause actual physical harm to Mr Surtees. Rather, she intended to cause him to fear that he would catch fire. She submitted that the lighter was ignited only momentarily. She further submitted that the offending was not planned and lacked ‘substantial premeditation’, and the steps involved were taken in close succession, in the context of a domestic dispute, with a high degree of spontaneity.
The applicant further submitted that the sentence imposed indicates that the judge gave insufficient weight to significant subjective factors, namely:
a.The applicant has no prior convictions and fell to be sentenced as a person of good character, for whom this offending was ‘entirely out of character’.
b.The [a]pplicant’s guilty plea, which was:
i.Entered during the currency of the pandemic; and
ii.Accompanied by some measure of remorse.
c.[The] [a]pplicant’s imprisonment has been, and will continue to be, more onerous owing to COVID-19.
d.The substantial hardship which the applicant has suffered, and will continue to suffer, because of her separation from her three young children … for whom she had been the primary carer. The loss of their father compounds that impact.
e.Delay between the commission of the offence (25 January 2020) and the imposition of the sentence (on 11 March 2022).
f.The applicant’s personal background and, in particular, the fact that she had been a victim of family violence and sexual abuse.
g.The evidence of family violence perpetrated by the deceased upon the [a]pplicant, both on the day of the offence and during the relationship.
h.The [a]pplicant’s diagnosis of ‘cumulative and complex’ post-traumatic stress disorder.
i.The evidence of Professor Ogloff and the fact that the applicant was assessed as presenting a low risk of future offending, as accepted by the Court.
j.The sentencing court was prohibited from imposing a sentence more severe than that necessary to achieve the purposes for which it was imposed.[67]
[67]Citations omitted.
The applicant also submitted that, based on the most recent sentencing statistics, there were 85 people sentenced to imprisonment for manslaughter during the period 2015-2020, of whom only six were sentenced to imprisonment for 12 years or more. Thus, notwithstanding her guilty plea, the sentence imposed was within the highest 7 per cent of sentences imposed during this period.[68] In oral argument, she submitted that each of those six cases involved offending that was significantly more serious than her offending.
[68]The six cases were identified as Vu v The Queen [2020] VSCA 59 (‘Vu’) (12 years); Freeburn v The Queen (No 2) [2020] VSCA 176 (‘Freeburn’) (12 years); R v Moreland; Tippins & Thorpe [2015] VSC 324 (‘Moreland’) (Moreland 12 years, Tippins 12 years); DPP v Smith [2018] VSC 684 (‘Smith’) (13 years); and DPP v Ristevski [2019] VSCA 287 (‘Ristevski’) (13 years).
In relation to comparable cases, the applicant submitted that cases concerning unlawful and dangerous act manslaughter involving the unintentional discharge of firearms provide useful comparators in the absence of cases concerning death by fire. She addressed the following cases which, she submitted, revealed that the sentence imposed on her was manifestly excessive:
(a)Director of Public Prosecutions v Osborn,[69] where the offender shot and killed his wife by holding a revolver to her head and pulling the trigger. The Director of Public Prosecutions accepted a plea to manslaughter on the basis that the offender genuinely believed the revolver would not discharge; that is, he did not intend physical harm and did not foresee any likelihood his wife would suffer such harm. The sentencing judge imposed a sentence of 9 years’ imprisonment, which was upheld on a Crown appeal despite being ‘perhaps somewhat lenient’.[70]
(b)Director of Public Prosecutions v Torun,[71] where the offender deliberately pointed a gun at the victim and pulled the trigger, in circumstances where he did not intend for the gun to be discharged. He had forgotten that he had earlier loaded the gun while in a drug-addled state. The Court of Appeal held that a sentence of 8 years’ imprisonment with non-parole period of 5 years was not manifestly inadequate. The Court emphasised that whether the offender held any intention to harm the victim was significant in assessing the gravity of the offence, and said that because there was no such intention, the sentence was not outside the range of sentencing dispositions open to the sentencing judge.[72]
(c)Kells v The Queen,[73] where the offender had been in a relationship with the victim for about 5 months prior to the killing, which was described as ‘volatile’ and ‘fractious’.[74] The offender killed the victim by stabbing him with a kitchen knife. She had initially gone to trial on the basis that she had acted in self-defence, but pleaded guilty to manslaughter during the trial. She was sentenced to 8 years’ imprisonment, with a non-parole period of 5 years.[75] The applicant submitted that that offending was at least as objectively grave as her own offending, given that Kells had intentionally inflicted a stab wound to the chest.
(d)Edwards v The Queen,[76] where the offender had pleaded guilty to the manslaughter of her intimate partner by stabbing him in the neck. The sentencing judge rejected a submission that her moral culpability was reduced because of the violence perpetrated against her by the victim during their relationship. The judge also rejected a submission based on post-traumatic stress disorder, on the basis that there was no causal link between the stabbing of the victim and his acts of violence towards the offender. A sentence of 9 years’ imprisonment, with a non-parole period of 6 years and 9 months, was upheld on appeal.[77] The Court there observed that ‘it was well open to her Honour to find that [the offender’s] moral culpability was high and was not lessened by her experience of family violence. That being so, it is not reasonably arguable that the sentence imposed was outside the range’.[78]
(e)Director of Public Prosecutions v Turner,[79] where the offender beat his partner in a protracted drunken rage, by punching and kicking her, dragging her by the hair, and striking her feet with a hammer as a ‘sadistic infliction of pain and injury purely for its own sake’.[80] Two days later, she died in agonising pain of a ruptured spleen and internal bleeding. The offending occurred in breach of a family violence intervention order. The offending was found to have been ‘the product of uncontrolled anger, aggression and rage’ and the criminal acts were found to be ‘a severe crime deserving of severe punishment’.[81] The offender had a long criminal record, including for making threats to kill, breaching court orders, crimes of violence and property offences. The sentencing judge found that there was only one mitigating consideration, that being an early plea of guilty to the charge of manslaughter, which was found to represent sincere remorse.[82] The sentence imposed on the charge of manslaughter was 11 years.[83] The applicant submitted that the offending in Turner was substantially more serious than the offending in her case.
[69][2018] VSCA 207 (‘Osborn’).
[70]Osborn [2018] VSCA 207, [92].
[71][2015] VSCA 15 (‘Torun’).
[72]Torun [2015] VSCA 15, [62].
[73][2013] VSCA 7 (‘Kells’).
[74]Kells [2013] VSCA 7, [5].
[75]R v Kells [2012] VSC 53, [61] (Macaulay J), affirmed in Kells [2013] VSCA 7.
[76][2020] VSCA 339 (‘Edwards’).
[77]Edwards [2020] VSCA 339.
[78]Edwards [2020] VSCA 339, [2] (Maxwell P, Kyrou JA and Macaulay AJA).
[79][2017] VSC 358 (‘Turner’).
[80]Turner [2017] VSC 358, [5] (Bell J).
[81]Turner [2017] VSC 358, [24] (Bell J).
[82]Turner [2017] VSC 358, [30] (Bell J).
[83]In addition, the offender was sentenced to 2 years’ imprisonment for the offence of contravening a family violence order, with 1 year of that sentence to be served cumulatively with the sentence for manslaughter, leading to a total effective sentence of 12 years. A non-parole period of 9 years was imposed: Turner [2017] VSC 358, [34] (Bell J).
The applicant pointed out that Kells, Edwards and Turner had involved manslaughter against a background of family violence. She further sought to distinguish Director of Public Prosecutions v Ristevski,[84] where a sentence of 13 years was imposed. In that case the cause and circumstances of Ms Ristevski’s death were never revealed, and the offender had concealed her body in isolated bushland and embarked on a protracted course of lies and deceit, revealing an ‘astonishing lack of remorse’.
[84][2019] VSCA 287.
The respondent’s submissions
The respondent submitted that when appropriate regard is had to the objective seriousness of the applicant’s offending, the relevant sentencing purposes, and when the matters in mitigation are taken into account, the sentence imposed on the applicant cannot be said to be wholly outside the range of sentences properly open to the sentencing judge.
In relation to the objective nature and gravity of the offence, the respondent submitted that there were various factors that informed an assessment of the objective gravity. These included that:
(a)the applicant’s actions were deliberate and involved a number of steps;
(b)the applicant’s actions involved a high degree of inherent dangerousness, and she must have known that her acts would expose Mr Surtees to ‘great danger’;
(c)Mr Surtees was in his own home, seated and presenting no physical threat to the applicant; and
(d)the offence was committed in close proximity to three young children, all of whom witnessed Mr Surtees on the front lawn, seriously burnt and in obvious pain and distress, and the applicant knew that they were present.
The offending constituted a serious act of family violence, resulting in death. Furthermore, the respondent submitted, Mr Surtees had shocking injuries, including extensive deep cutaneous thermal burns to over 80 percent of his body. Prior to sedation by paramedics, he was observed to be in excruciating pain. The respondent submitted as follows:
The use of fire to cause death (or serious injury) is widely recognised as particularly shocking and cruel. As Redlich JA stated in Hopkins v The Queen, ‘it would be a futile exercise to attempt to imagine a death that more appals the conscience than death by burning’. Nettle J … referred to the use of fire, in R v Alipek & Saltmarsh, as a ‘… means so brutal as to be beyond the understanding of most civilised human beings.’[85]
[85]Citations omitted.
In light of those matters, the respondent submitted that it was well open to the sentencing judge to conclude that both the applicant’s moral culpability and the objective seriousness of the offending were high.
The respondent acknowledged that there were various subjective matters that fell to be balanced against the objective seriousness of the offending, including the applicant’s guilty plea during the pandemic, the fact that she had no prior convictions, the fact that her time in custody would be more burdensome due to COVID-19 restrictions and her separation from her young children, and the delay in finalising the proceeding. However, the respondent pointed out that the sentencing judge had regard to these matters, as well as to the applicant’s personal circumstances and her mental health, and that she had previously been a victim of family violence and sexual abuse (but not at the hands of Mr Surtees). Further, in light of the sentencing judge’s conclusion about the value of Professor Ogloff’s opinion, his diagnosis of post-traumatic stress disorder could attract little weight. Finally, the respondent submitted that the sentencing judge had appropriately taken into account the fact that the applicant had some level of remorse.
In so far as comparable cases are concerned, the respondent submitted that cases of causing death by fire are not common and, when few like cases exist, a sentencing pattern cannot properly be identified.[86] None of the cases referred to by the applicant involved death by fire. The respondent submitted that, although those cases are capable of representing ‘particular aspects on the spectrum of seriousness’, they are not of ‘equally evil content or characteristics’.[87]
[86]R v Kilic (2016) 259 CLR 256, 268 [25] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48.
[87]The respondent referred to Ibbs v The Queen (1987) 163 CLR 447, 452; [1987] HCA 46 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ).
In particular the respondent submitted that Osborn, Torun, Kells and Edwards bear no resemblance to the objective seriousness of the applicant’s case, because all involved a single spontaneous act that resulted in an unintended death. In the present case, the applicant’s offending was not a spontaneous act; rather it involved several deliberate steps leading to Mr Surtees’ immolation, during which she had time to stop, think and desist, but did not do so.[88]
[88]See Reasons [79], [83].
The respondent further submitted that Turner was not a more serious example of manslaughter when regard is had to the manner of death, that is death by fire. As for Ristevski, the respondent submitted that it is of no assistance by way of comparison because the manner of death in that case was unknown; whereas in the present case the manner of death is the primary factor in determining the objective seriousness of the offending.
Consideration
In considering a ground of appeal based on manifest excess, it is important always to bear firmly in mind that, in order to succeed, it is necessary for an applicant to establish that the sentence imposed by the judge was wholly outside the range available in the sound exercise of the sentencing discretion.[89] It is not sufficient that this Court might have imposed a different sentence or a different non-parole period. In my opinion, that high threshold is met in the present case.
The objective gravity of the offending and the applicant’s moral culpability
[89]Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Karazisis(2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
I commence by observing that I accept the respondent’s submissions concerning the nature and gravity of the applicant’s offending. It was well open on the facts before the sentencing judge for his Honour to conclude that the objective seriousness of the offending was high. In particular:
(a)the manner of death and the extent of the burns to Mr Surtees’ body were particularly shocking in nature, and there was evidence that Mr Surtees suffered excruciating pain prior to his sedation;
(b)the applicant’s actions were deliberate and she took a number of steps prior to Mr Surtees catching fire, including picking up the jerry can of fuel, pouring an extensive amount of it onto Mr Surtees, pushing him back into the armchair after he lunged at her, picking up the cigarette lighter and then igniting it;
(c)Mr Surtees was seated and, although he had lunged at the applicant, she had pushed him back down and she could have walked away at any time prior to the ignition of the lighter;
(d)the acts involved — splashing a large amount of petrol onto a person and lighting a cigarette lighter in close proximity — were inherently dangerous and the applicant must have known that to be so;
(e)although the offending took place in the context of an argument, Mr Surtees was not behaving in a threatening or abuse manner towards the applicant at the time of the offending;
(f)Mr Surtees was in his own home, where he had the right to feel safe;
(g)the applicant knew that there were three young children in the house, and those children in fact witnessed the aftermath of the offending, namely their father seriously burnt and in pain and distress.
It is necessary to say something more about the first matter, namely the manner of death. As noted above, in characterising the applicant’s moral culpability the respondent placed significant weight on the ‘particularly shocking and cruel’ nature of death by fire, as adverted to in Hopkins and R v Alipek and Saltmarsh.[90] The applicant submitted that those cases ought to be treated with some caution because they were not cases of manslaughter; they were cases of murder, involving the offenders intentionally setting the victims alight. I accept the applicant’s submission that Hopkins and Alipek ought to be treated with some caution. It is right to describe the circumstances in those cases as ‘particularly shocking and cruel’, but it does not follow that that description appropriately applies to the circumstances of this case. In particular, the adjective ‘cruel’ is apt for an intentional decision to set a person alight; but it is not, in my view, apt for an unlawful and dangerous act that results in a person being set alight. Nonetheless, as I explained above, I do regard the manner of Mr Surtees’ death as particular shocking.
The weight to be given to subjective factors
[90][2004] VSC 206 (‘Alipek’).
In my opinion, although the applicant’s moral culpability was high, that is not the end of the assessment of whether the sentence imposed on her was manifestly excessive. She was able to call in aid a number of significant matters in mitigation. While all of them were matters that the sentencing judge expressly took into account, in my opinion if they had been given sufficient weight, the judge could not have imposed the sentence he did.
First, and perhaps most importantly, regard must be had to the applicant’s plea of guilty during the COVID-19 pandemic. As this Court explained in Worboyes, ‘a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects’ and ‘should attract a more pronounced amelioration of sentence than at another time’. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence. It does not appear to me that the applicant’s guilty plea was given the more pronounced amelioration required by Worboyes.
Added to the applicant’s plea are the other mitigatory factors set out above. I place considerable weight on the following matters:
(a)The applicant had no prior convictions, and was a person of good character for whom this offending was out of character.
(b)Imprisonment will be more onerous for the applicant, both by reason of the restrictions on prisoners as a result of the pandemic and because she is separated from her children, for whom she was the primary carer.
(c)As the sentencing judge found, the applicant has ‘very good’ prospects of rehabilitation. Rehabilitation is an important aspect of sentencing that is to be given significant weight.
(d)The applicant had been the victim of sexual abuse and family violence, including some family violence perpetrated by Mr Surtees.
I note the sentencing judge’s finding that the applicant did not have a ‘well developed sense of remorse’, and that this means she cannot rely on remorse as a strong factor in mitigation, although she expressed some ‘limited remorse’. I have thus placed limited weight on remorse when considering the mitigatory factors, although I note that she was not without remorse.
I also note that the sentencing judge accepted that the applicant presented a low risk of future offending and that specific deterrence and community protection were not prominent sentencing considerations. He also took into account the delay of two years between the time the applicant was charged and the time she was sentenced. I have also taken those matters into account.
The above matters lead me to conclude that a sentence of 12 years’ imprisonment was outside the range available to the sentencing judge. That conclusion is reinforced when consideration is given to current sentencing practices and comparable cases, to which I now turn.
Current sentencing practices and the ‘range’ open to the sentencing judge
A significant aspect of the applicant’s case on appeal concerned sentences imposed for manslaughter in comparable cases.
It is important at the outset to emphasise that comparable cases are not precedents, and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case. While comparable cases may assist to reveal a possible pattern or range of previous sentences, an examination of comparable cases does not have the consequence that a range or pattern of sentences, as revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are immutable.[91] Further, as the respondent pointed out, the cases on which the applicant relied had significant differences from the applicant’s offending, meaning that they do not necessarily provide appropriate comparators.
[91]See, eg, DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ); [2017] HCA 41; Djordjic v The Queen [2018] VSCA 227, [74] (Beach and Kaye JJA); Sutic v The Queen[2018] VSCA 246, [97] (Kyrou and Kaye JJA).
Furthermore, the offence of manslaughter can be committed in a great variety of ways, with varying degrees of culpability, thus the sentences imposed differ greatly. As Nettle J observed in R v Clapper:
The maximum sentence for the offence of manslaughter is 20 years’ imprisonment. Of all crimes, however, manslaughter throws up the greatest variety of circumstances affecting culpability, and because manslaughter covers such a wide range of circumstances … the range of penalty is very wide indeed. The circumstances which may give rise to a conviction for manslaughter are so various and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases.[92]
[92][2003] VSC 462, [23] (emphasis added). See also Vincec v The Queen [2018] VSCA 18, [55] (Weinberg JA).
Neither party cited to this Court any manslaughter cases concerning death by fire, and such cases are rare. Nonetheless, I accept that the cases relied upon by the applicant provide some degree of assistance in identifying the sentencing range open to the judge. In particular, I accept the applicant’s submission that the offending in the six cases in which a sentence of 12 years’ imprisonment or more for manslaughter has been imposed all involved more serious offending than her case.[93]
[93]Namely, Vu [2020] VSCA 59; Freeburn [2020] VSCA 176; Moreland [2015] VSC 324; Smith [2018] VSC 684; Ristevski [2019] VSCA 287.
I also accept that the other cases upon which the applicant relied as comparable cases support a conclusion that the sentence imposed on the applicant was outside the range available to the sentencing judge. In particular, those cases reveal that sentences of less than 10 years’ imprisonment were imposed in cases involving:
(a)a series of steps resulting in the death of the victim (in particular, Osborn and Torun¸ each of which involved bringing a firearm into the home, loading it, pointing it at the victim and pulling the trigger);
(b)significant aggravating factors (in particular, Osborn and Kells);
(c)a plea of guilty as a mitigating factor (in particular, Osborn, Torun and Edwards, and, albeit very late, Kells); and
(d)offenders with relevant criminal histories (in particular, Osborn, Torun and Kells).
In contrast, in Turner a sentence of 11 years was imposed; but the offending in that case was very different and, I accept, more serious than the applicant’s offending. Further, Turner’s moral culpability was higher, he had almost no mitigating factors and he had a history of violence against the victim and a lengthy criminal record.
These cases ought not be understood as indicating any kind of upper limit for the appropriate sentence in cases of manslaughter with similar features. But they suggest that a sentence of 12 years’ imprisonment for the applicant, in the circumstances of her offending and in the light of her personal circumstances, was outside the range available to the sentencing judge.
Finally, it is necessary to say something about Ristevski. The applicant contended, and I accept, that Ristevski is not truly comparable to the applicant’s case. That is because the mode of Ms Ristevski’s death is not known, and because the offender had concealed his wife’s body and embarked upon a protracted course of lies and deceit, revealing an astonishing lack of remorse.
While current sentencing practices, as revealed in the cases discussed above, are but one factor in the sentencing exercise, and do not compel a conclusion that the applicant’s sentence was manifestly excessive, they nonetheless support the conclusion that the sentence imposed on the applicant was manifestly excessive. The range of sentences imposed in the comparable cases suggest that in the present case excessive weight was given by the sentencing judge to the mode of death, and insufficient weight was given to the mitigating factors on which the applicant relied.
Conclusion
Ultimately, in light of the mitigating factors in the applicant’s case, and an assessment of the sentence imposed upon her in comparison to the sentences imposed in other cases involving manslaughter, I consider that the sentence imposed by the sentencing judge was manifestly excessive. I would thus grant leave to appeal, allow the appeal and resentence the applicant as set out in paragraph 25 above.
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