R v Ashton

[2005] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 328 of 2004

THE QUEEN

v.

MARK ANDREW ASHTON

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2005
DATE OF JUDGMENT:	10 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 241

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SENTENCE – Manslaughter – Sentence of seven years and non-parole period of five years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
The Applicant in person

CHARLES, J.A.:

1. The applicant, Mark Andrew Ashton, seeks leave to appeal against a sentence of seven years' imprisonment, with a non-parole period fixed of five years, imposed on 17 November 2004 by Kellam, J. in the Supreme Court in relation to one count of manslaughter to which he pleaded guilty.  The maximum custodial penalty for the crime of manslaughter was 20 years.  The applicant admitted 11 prior convictions from three court appearances, many of which were related to his abuse of alcohol but none of which involved violence.  The essential ground on which the applicant seeks leave to appeal is that the sentence was manifestly excessive.

1. Particular weight during the application for leave under s.582 of the Crimes Act 1958 was placed on the claim that the judge gave too much weight to specific and general deterrence and too little weight to the applicant's lack of violent behaviour prior to the event and to his high degree of intoxication at the time of the offence. On 20 May 2005 Chernov, J.A. refused the application for leave to appeal pursuant to s.582.

1. The factual circumstances of the offence are set out in the comprehensive sentencing remarks of Kellam, J. and there is no need to repeat them.  None of the facts are challenged.  Both the applicant and his victim were intoxicated at the time of the offending and the victim died when, for the third time, the applicant placed the victim in a headlock, compressing the victim's neck to such an extent that he died of aspiration of gastric content.  The applicant had attacked his victim in this manner despite the attempts of a number of his friends to calm him and prevent him from approaching the deceased.  Furthermore, at one point the applicant left the scene of the argument only to return a few minutes later carrying a knife.  The deceased at no stage resisted violently and there was no evidence to support the applicant's claim to the police that he attacked his victim because the latter had thrown punches at him. 

1. The only ground of the application for leave is that the sentence imposed was manifestly excessive.  The circumstances of the offence as recounted by Kellam, J. show that the applicant and the deceased were involved in a petty squabble over minor issues while both were under the influence of a substantial quantity of alcohol each had consumed.  The applicant was, and is, plainly remorseful for his conduct, a fact accepted by the judge.  Kellam, J. also accepted that the applicant's rehabilitation had commenced in custody and that he had improved prospects on his release.  Specific deterrence however remained important.  The judge had to impose a sentence which demonstrated community concern for violence of this kind, which is not uncommon, and denunciation of the conduct and just punishment.  General deterrence was also important.

1. Accepting that the applicant was genuinely remorseful and indicated a desire to plead guilty at a very early stage, the judge was nonetheless obliged to impose a sentence which properly balanced all of the matters to which reference has already been made.

1. In my opinion the sentence imposed was well within the range of sentence one could expect to be imposed for offending of this kind and could not be described as manifestly excessive.

1. The application for leave to appeal should be dismissed.

BUCHANAN, J.A.: 

1. I agree.

VINCENT, J.A.: 

1. I agree.

CHARLES, J.A.: 

1. The application is dismissed.

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