Withers v the Queen (No 2) - [2010] VSCA 151

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. S APCR 0857 of 2007

SHIRLEY WITHERS
	v
THE QUEEN (NO 2)

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JUDGES:	BUCHANAN, ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2010
DATE OF JUDGMENT:	25 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 151
JUDGMENT APPEALED FROM:	R v Withers [2007] VSC 411 (Harper J)

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CRIMINAL LAW – Appellant originally convicted of murder – Also pleaded guilty to two counts of incitement to murder – Appeal against conviction for murder allowed – Conviction for manslaughter substituted pursuant to s 569(2) Crimes Act 1958 – Re-sentencing of appellant by Court of Appeal – Unlawful and dangerous act manslaughter – Serious example of offending – Relevance of R v Verdins – Sentenced to 8 years’ imprisonment for manslaughter – Total effective sentence 13 years with non-parole period of 9 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L.C. Carter	Lethbridges
For the Crown	Mr G.J.C. Silbert SC	Mr C. Hyland, Solicitor for Public Prosecutions

BUCHANAN JA
ASHLEY JA
WEINBERG JA:

Judgment in this matter was delivered on 18 December 2009.[1] The reasons that follow should be read in conjunction with the reasons for judgment delivered on that date.
[1]R v Withers [2009] VSCA 306.

In relation to the conviction for murder, count 1, the Court foreshadowed that the appeal would be allowed and, pursuant to s 569(2) of the Crimes Act 1958 (as it then stood), a conviction for manslaughter would be substituted. In relation to the sentences for incitement to murder, counts 2 and 3, leave to appeal would be refused. It was noted that, as a result of the quashing of the conviction for murder, and the substitution of a conviction for manslaughter, a further hearing would be required in order that an appropriate sentence for that offence could be fixed. In addition, the question of cumulation in respect of the sentences imposed on counts 2 and 3 would necessarily have to be considered.

The Court, having heard further submissions in relation to these matters, is now in a position to re-sentence the appellant.

The circumstances of the offending are set out in the Court’s reasons for judgment in this matter.[2] It is sufficient, for present purposes, to note that the appellant had, for some years prior to his death, been in a de facto relationship with Peter Shellard, the victim of this offence. She had also been the book-keeper for Kellow Falkiner Motors Pty Ltd, the deceased’s car business. In the months leading up to his death, there had been a falling out between them. In around April 2005, he had her removed as a signatory to his business accounts.
[2]Ibid, [4] - [14].

At the relevant time, the appellant owned and operated a retail clothing boutique in Brighton. The deceased had contributed funds to that business, but had ceased doing so in about April 2005. The result was that the appellant was under severe financial stress.

On the evening of…

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 Withers v the Queen (No 2)

Details

AGLC: Withers v the Queen (No 2) [2010] VSCA 151
Case: [2010] VSCA 151
Decision Date: 25 June 2010

CaseChat Overview and Summary

The case of Withers v the Queen (No 2) involved an appellant who had originally been convicted of murder and subsequently pleaded guilty to two counts of incitement to murder. The appellant appealed against the murder conviction, and the appeal was successful, leading to a substitution of the conviction to manslaughter pursuant to section 569(2) of the Crimes Act 1958. The Court of Appeal proceeded to re-sentence the appellant, treating the offence as unlawful and dangerous act manslaughter.

The primary legal issue before the court was to determine the appropriate sentence for the appellant following the successful appeal and the substitution of the conviction to manslaughter. The court had to consider the seriousness of the offending and whether the precedent set by R v Verdins was applicable in this context. The court also had to balance the appellant’s culpability with the nature of the unlawful and dangerous act manslaughter.

In considering the legal issues, the court found that the offending was indeed a serious example of unlawful and dangerous act manslaughter, warranting significant punishment. The court acknowledged the precedent of R v Verdins but also recognised the need to tailor the sentence to the specific circumstances of this case. Ultimately, the court sentenced the appellant to eight years' imprisonment for the manslaughter conviction, making the total effective sentence thirteen years with a non-parole period of nine years. The court concluded that this sentence reflected the seriousness of the offending and the appellant’s culpability.

The final orders of the court were that the appellant's conviction for murder was substituted to manslaughter, and he was sentenced to eight years' imprisonment for the manslaughter conviction, with a total effective sentence of thirteen years and a non-parole period of nine years.

Orders