Dutton v The Queen [2011] VSCA 287

3 On 20 August 2009 the appellant pleaded guilty to the murder of Angelique Portelli. The murder had occurred in the early hours of the morning of Tuesday 27 June 2006.

4 At the date of the murder the appellant was almost 60 years of age. Ms Portelli was 31 years of age. The appellant and Ms Portelli worked together. Ms Portelli was married to someone else, but she and the appellant had been in a relationship for some time and she stayed with him on occasions. The murder occurred in the bedroom of the appellant's apartment.

5 The appellant's relationship with Ms Portelli had placed significant pressures on him. In particular, his long time business partner wanted him to terminate her employment. The sentencing judge found that the appellant's feelings towards Ms Portelli were 'conflicted', in that he was deeply attached to her but also had a mistrust of her.

6 On Monday 26 June 2006 the appellant and Ms Portelli dined together and then returned to the appellant's apartment and went to bed. For reasons which remain unknown, the appellant awoke and went into the kitchen. He obtained a knife, returned to the bedroom, and killed Ms Portelli.

7 After killing Ms Portelli, the appellant sent a text message to a number of persons and then took an overdose of Diazepam tablets. When one of the persons to

whom the text message was sent arrived at the appellant's apartment, he found the appellant unconscious on the bed and Ms Portelli dead on the floor beside the bed. A bedside lamp cord was wrapped around Ms Portelli's neck. The appellant awoke in intensive care four days later.

8 An autopsy on Ms Portelli found that strangulation was the cause of death. There were 38 injuries to her body. There were bilateral fractures of her larynx, defensive injuries to her hands, two stab wounds in her neck, a stab wound to her right upper chest, a stab wound to her thigh, and blunt force injuries to her head. Broken pieces of the bedside lamp were found embedded in her ear and eyebrow.

9 Throughout the proceeding there was an issue raised as to the possibility of a defence of mental impairment. A substantial body of psychiatric evidence was compiled on that issue. At one point, the matter was fixed for a consent mental impairment hearing. That hearing did not proceed as the prosecution determined the issue ought to proceed before a jury. The appellant was initially tried before Curtain J. The jury in that trial was discharged without verdict before the evidence had concluded as a family member of the deceased attending Court for the first time recognised a juror. On the re-trial, the appellant pleaded guilty to the offence of murder in the course of a voir dire in relation to the admissibility of his record of interview.

10 In the course of the plea hearing the appellant relied upon evidence of good character, and upon a significant body of psychiatric and psychological evidence. It was submitted that the principles expounded in R v Verdins[1] and R v Tsiaris[2] applied.

11 The appellant was sentenced on 20 May 2010, two months before he turned 64. He was sentenced to be imprisoned for 16 years. The sentencing judge directed that he serve a minimum of 12 years before being eligible for parole.

12 The appellant was granted leave to appeal on 8 April 2011.

13 The sentencing judge's reasons are both full and careful. She addressed the circumstances of the offending and the psychiatric and psychological evidence in detail. She accepted that the principles expounded in Verdins and Tsiaris applied.

14 It was not suggested on this appeal that any legal principle was misstated in the sentencing reasons or that any factual error was made.

15 Four grounds of appeal are relied upon. The first two concern matters to be found not in the sentencing reasons, but in interchanges between the sentencing judge and senior counsel for the appellant during the course of the plea.

16 The first interchange relied upon concerns the appellant's age. It is submitted that the sentencing judge 'found' that the appellant's age was not a significant sentencing consideration. It is submitted that this was an error.

17 In the written case, the appellant submitted that 'age is just as important a consideration for offenders in mid to older years as it is for the young'. In the written case and in oral submissions, it was submitted that the appellant's age was relevant to rehabilitation, good character, the severity of sentence (that is, the proportion it would represent of his likely remaining life), delay and ill health.

18 I reject the submission that age is just as important a consideration in relation to mid to older offenders as it is for those who are young. It is well established that special considerations apply to youthful offenders.[3]

19 That said, every offender's age is relevant to sentence. In her sentencing reasons the sentencing judge included the appellant's age as a mitigating factor.

20 Her observations in the course of the plea were that the appellant's age was not a 'particularly significant feature', and that it was not of 'great significance' as would be the case with a young offender.

21 Nothing said by the sentencing judge on this issue in the course of the plea reveals any error. I reject this ground.

22 The second matter which arose in the course of the plea, which is now relied upon as a ground of appeal, is an observation by the sentencing judge to the effect that in the prior five years there had been a significant increase in the penalties imposed for offences of murder. That was an observation with which senior counsel for the appellant on the plea hearing agreed.

23 It is submitted that her Honour's observation in the course of the plea revealed that she had proceeded to sentence on a 'wrong premise'.

24 It is submitted that her Honour's premise is revealed to be erroneous by the Sentencing Snapshot published by the Sentencing Advisory Council, which was current at the time of sentence, no 84 of June 2009. Reliance is placed upon the fact that those statistics reveal that the average length of imprisonment imposed for murder was 19 years 1 month in 2003-2004, 18 years 10 months in 2004-2005, 18 years 5 months in 2005-2006, 18 years in 2006-2007 and 20 years 5 months in 2007-2008. Reliance is also placed upon certain other published statistics indicating that in 1996 the median sentence was 18 years, in 1988-1991 it was 16 years, in 1992-1993 it was 15 years, and in 1996 it was 17 years.

25 The use of statistics, particularly averages, in this context has very significant limitations. The number of cases each year is small. It is unclear how the averages reflect life sentences, of which there were 12 in the period dealt with in the Sentencing Snapshot relied upon. Finally, as this Court has recently reiterated,[4] statistics of this kind are of limited assistance for the simple reason that they do not illuminate the facts on which the sentences were imposed.

26 Insofar as the statistics relied upon are of any assistance, they do suggest a significant increase in sentences for murder, although over a longer period than five years.

27 In oral submissions it was argued on behalf of the appellant that the reference to five years is particularly significant because, it was said, the sentencing judge must have relied on this erroneous premise in order to reach a sentence which, upon analysis, is significantly higher than the sentences in other cases to which she referred in her sentencing reasons. All of those cases were five years or more prior to the sentence in this case.

28 In relation to that submission it is firstly important to note that no such connection is made, expressly or by implication, in the judge's sentencing reasons. Of greater significance, however, is the context in which the observation now said to reveal the erroneous premise was made.

29 The prosecution had sent the appellant's instructing solicitor a letter dated 16 October 2008 which was tendered as exhibit 11 on the plea. Amongst other things, that letter said that if the appellant was to plead guilty to murder the Crown would agree that the sentencing range should be at the lower end of the spectrum taking into account his plea, his absence of priors, his age, and the application of the sentencing principles expounded in Verdins and Tsiaras.

30 After tendering the letter, senior counsel for the appellant submitted the following:

Now, that letter featured fairly significantly in terms of discussions that I had with Mr Dutton, and I dare say that as a consequence of that letter and another letter that we had from the Crown indicating that they would submit that the relevant range to your Honour to your Honour [sic] was a minimum of between 10 to - sorry, 12 to 10 years.[5]

31 At that point the sentencing judge interrupted counsel and made some observations as to the role of the prosecution.

32 There was then an interchange between counsel for the appellant and the sentencing judge in the course of which the judge observed that what had occurred here was the brutal loss of a young woman's life and that but for the Verdins aspect this murder would attract what her Honour described as a 'reasonably significant sentence'. Her Honour then observed:

Even with amelioration, it's not going to be in the sort of level that you're talking about.[6]

33 Her Honour was clearly referring to the interchange she had just had with counsel for the appellant concerning the prosecution's foreshadowed submission of a minimum range of 12 to 10 years.

34 In that context her Honour then made the observation about sentences having increased very significantly in the last five years, with which senior counsel agreed, and she suggested that the 'sort of figures' which were being put to her were just not 'within the realm'. Her Honour, in effect, challenged counsel for the appellant to refer her to a case where a sentence at that level had been imposed in the previous five years, and, counsel said to her Honour:

That's what I've got your Honour. I'm giving you sentences which reflect a minimum of between 12 to nine years.[7]

In all the circumstances, your Honour, we say that a minimum of a single digit number would not be out of your Honour's sentencing range.[8]

In response to that her Honour said that she thought it would be significantly outside her range for an offence of this nature.

36 It was submitted on the appeal that the sentence which her Honour then imposed, a sentence of 16 years' imprisonment with a non-parole period of 12 years, reveals that her Honour was persisting in the views she had expressed in the course of her interchange with counsel.

37 Even if an interchange of that nature were a proper basis for suggesting an appellable error, which I do not accept, it seems to me that the sentence imposed reveals precisely the opposite. Having put to counsel that a range in relation to the minimum of 10 to 12 years was too low; after consideration, and giving full and careful reasons, her Honour did impose a minimum sentence of 12 years. When all the relevant passages in the transcript are considered, in my view what is revealed is that her Honour, in the end, imposed a minimum term at the top of the range which was put to her by counsel for the appellant.

38 A submission was also made concerning the statement pursuant to s 6AAA of the Sentencing Act 1991. In my view such statements will rarely assist in considering whether there has been an error in the sentence. Section 6AAA statements are based upon an hypothesis which is usually too uncertain to enable meaningful conclusions to be drawn as to the sentence itself. In my view that is the case here.

40 The third ground of appeal is that the judge erred in not allowing for a greater period between the head sentence and the non-parole term.

41 In my view this ground is without substance. I refer in that respect to this Court's decision in R v Romero.[9]

42 The final ground of appeal is that the sentence is manifestly excessive.

43 A manifestly excessive sentence is one which is 'wholly outside the range of sentencing options available'.[10] It ought to be 'obvious, plain, apparent, easily perceived or understood and unmistakeable'.[11]

44 The suggestion that the sentence imposed here, for the offence of murder, fulfils those descriptions is, in my view, untenable.

45 Ms Portelli might not be properly described as having been the domestic partner of the appellant, but their relationship was such, and the circumstances of the offence were such, as to raise similar sentencing considerations. The recent observations of Redlich JA in Felicite v The Queen seem to me to be pertinent here. He said[12]:

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, 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.

46 The appellant here could point to a number of mitigating circumstances. The most significant of those circumstances was his mental health. Because of those mitigating circumstances, notwithstanding his shocking violence towards his vulnerable victim, her Honour imposed a sentence for murder at the bottom of the range of sentences for murder. I reject this ground.

[1] [2007] VSCA 102 ('Verdins').

[2] [1996] VicRp 26; [1996] 1 VR 398 ('Tsiaris').

[3] R v Mills [1998] 4 VR 235.

[4] Felicite v The Queen [2011] VSCA 274, [26].

[9] [2011] VSCA 45.

[10] R v Boaza [1999] VSCA 123, [42].

[11] Hanks v The Queen [2011] VSCA 7 at [22].

[12] Felicite v The Queen [2011] VSCA 274, [20].