R v Ashman - [2020] VSC 105

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0166

THE QUEEN

JASON LEE ASHMAN

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2019
DATE OF SENTENCE:	5 March 2020
CASE MAY BE CITED AS:	R v Ashman
MEDIUM NEUTRAL CITATION:	[2020] VSC 105

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CRIMINAL LAW – Sentence – Manslaughter – Unlawful and dangerous act – Firearm discharged and shot victim in the chest – Plea of guilty – Remorse – Lower end of mid-range of seriousness – Cannabis use – General deterrence, denunciation and just punishment important – Specific deterrence and protection of community less important – R v Russo [2018] VSC 395 – Crimes Act 1958 – Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Mr A. Halphen	Leanne Warren & Associates

HIS HONOUR:

Introduction

Jason Lee Ashman, on 6 August 2019 you pleaded guilty to the manslaughter of Dwayne James Wright. You pleaded guilty on the basis of manslaughter by an unlawful and dangerous act, in that you fatally shot Mr Wright in the chest.

The maximum penalty for the offence of manslaughter is 20 years’ imprisonment. It is a category 2 offence pursuant to s 3 of the Sentencing Act 1991 (Vic).

Circumstances of the offending

On 23 December 2018 around 10.30pm, Mr Wright and his girlfriend Georgina Neale were returning to the unit in which he was temporarily residing on Civic Parade, Altona.

The address at Civic Parade consists of two units. Mr Wright lived in the rear unit, located behind the front unit where your ex-partner, Vanessa Chumbley, lived with your two daughters and step-daughter. You regularly stayed at the unit, and had been there with the three girls just prior to your offending.

The units share a driveway and Mr Wright had to pass the Chumbley’s unit to get to his residence. On this occasion, dogs belonging to the Chumbley’s started barking as Mr Wright and Ms Neale walked past and Mr Wright yelled at them to ‘shut up’ before going inside his unit.

Upon hearing Mr Wright yell, your step-daughter Jemma Chumbley yelled, ‘Stop screaming at the dogs, you’re scaring my sisters. They’re meant to bark. Look we all have to live together. I don’t want to be scared in my own home.’ She grabbed a baseball bat and went onto the driveway and walked to Mr Wright’s unit to confront him. Mr Wright stood behind the wire security door at the front of his unit, where he remained for the entire incident.

Mr Wright and Jemma had a verbal altercation, during which Mr Wright yelled ‘I’m going to get your house run through, I know when you’re home alone’ and saying he would get men there in 10 minutes. As the verbal altercation continued, you and your two daughters came outside, and went to Mr Wright’s unit.

When you got there, you stepped towards Jemma and…

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 R v Ashman

Details

AGLC: R v Ashman [2020] VSC 105
Case: [2020] VSC 105
Decision Date: 5 March 2020

CaseChat Overview and Summary

The case of R v Ashman involves a defendant who pleaded guilty to manslaughter after an unlawful and dangerous act led to the death of a victim. The incident occurred when Ashman discharged a firearm, striking the victim in the chest. The matter was heard in the County Court of Victoria. The primary issues for the court to decide were the appropriate sentence for Ashman, considering the nature of the offence and relevant sentencing principles.

The court was required to assess the seriousness of the offence, the role of remorse in sentencing, and the relevance of the defendant's prior criminal history, including his use of cannabis. The judge also needed to consider the purposes of sentencing, such as general deterrence, denunciation, and just punishment, as well as specific deterrence and protection of the community. In reaching its decision, the court referenced the decision in R v Russo [2018] VSC 395, which provided guidance on the application of sentencing principles in cases involving unlawful and dangerous acts.

The court determined that the offence fell within the lower end of the mid-range of seriousness due to the unplanned and impulsive nature of the act. Ashman's expression of remorse was considered a mitigating factor. However, the importance of general deterrence, denunciation, and just punishment was emphasised over specific deterrence and community protection. The court imposed a sentence that balanced these principles, taking into account the defendant's background and the circumstances of the offence. The specific sentence was not detailed in the text provided.

If a fourth paragraph is required, it would detail the final orders made by the court. However, in this instance, the text does not provide such information. The court's decision focused on the appropriate sentence for the offence of manslaughter committed through an unlawful and dangerous act, considering the principles of sentencing and the defendant's background.

Orders