R v Bellingham & Fenton
[2002] VSCA 35
•20 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 152 of 2000
No. 156 of 2000
| THE QUEEN |
| v. |
| TRAVIS KANE BELLINGHAM |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | WANGARATTA | |
DATE OF HEARING: | 20 March 2002 | |
DATE OF JUDGMENT: | 20 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 35 | |
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Criminal law - Sentence - Use of knives by appellants against persons unknown to them and without provocation - Charges of manslaughter and intentionally causing serious injury - Respective terms of imprisonment of 9 years with 7 years and 5 years with 2½ years - Held not to be manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C. and Mr R. Pirrie | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant Bellingham | Mr P.F. Tehan, Q.C. | Victoria Legal Aid |
| For the Appellant Fenton | Mr L.C. Carter | Victoria Legal Aid |
WINNEKE, P.:
In the evening of 31 August 2000, three young students, Nikolci Sekrevski, Alex Nestorovski and Alex Stojcevski, made an unfortunate decision to attend the Gower Hotel in Preston. Their misfortune arose because the appellants, Travis Bellingham and Aaron Fenton, were at the same hotel, chatting to and drinking with two girls whom I shall call "Christina" and "Alana". During the course of the evening, Bellingham produced a knife from his pocket, which he showed to Christina, informing her that it was "for protection". Although the two girls were known to the student group, there was no apparent contact between the members of that group and the appellants until, coincidentally, they left the hotel early the following morning.
At about 1.15 a.m. on the following morning, 1 September 2000, the appellants left the hotel in the company of the two girls and headed across Plenty Road to the eastern footpath. As chance would have it, the three students were leaving the premises at the same time, heading for their car, which was parked in the vicinity. They were seen by Bellingham, who yelled out the inane remark, "How much can a koala bear?", followed by some insulting words, including the word "poofters". The students ignored him, but as they approached their car and Nestorovski put his hand in his pocket to retrieve the keys of the car, Bellingham asked him what he had in his pocket, to which the response was made, "Mind your own business". This was all too much, apparently, for Bellingham, who punched Nestorovski in the left eye. Sekrevski and Stojcevski went to Nestorovski's assistance and a scuffle ensued between the five men. Each of the appellants produced a knife. Fenton slashed at Stojcevski, cutting a hole in his leather jacket. He then stabbed Sekrevski in the chest. Sekrevski tried to flee, pursued by Fenton. He did not get far before he collapsed, suffering from a fatal wound which had penetrated his pericardium, his left lung and the anterior pulmonary artery. Almost immediately after Fenton had stabbed Sekrevski, Bellingham used his knife to stab Nestorovski in the stomach. The two appellants then fled the scene, leaving behind them the mortally wounded Sekrevski and the badly wounded Nestorovski. The latter suffered a deep laceration of the vital organs of the stomach and pancreas. He was in hospital for a week. Sekrevski died on the same day.
The appellants were quickly identified, arrested and taken into custody. Fenton declined to answer questions, but a record of interview was conducted with Bellingham. Ultimately Fenton was charged with manslaughter, based on unlawful and dangerous act, and Bellingham was charged with intentionally causing serious injury. Each offence carried a maximum penalty of 20 years' imprisonment.
Fenton was 23 years of age at the time of the offence. He admitted a large number of previous convictions of dishonesty, assault, drug use, resisting arrest, possessing weapons, etc. Bellingham was just under 20 years at the date of the offending, and, save for a number of Children's Court offences recorded when he was 14 or 15, he was otherwise of good character.
The two appellants stood for sentence before Kellam, J. in the Supreme Court on 29 May 2001. Pleas of mitigation were made on their behalf. His Honour, on 15 June 2001, sentenced Bellingham to five years' imprisonment with a non-parole period of two-and-a-half years, and declared that 85 days of pre-sentence detention had been served. Fenton was sentenced to nine years' imprisonment and a non-parole period of seven years was fixed in his case. Pre-sentence detention of 289 days was declared. On 12 October 2001, Callaway, J.A. gave each of these appellants leave to appeal pursuant to s.582 of the Crimes Act.
The sentencing judge, as in my view he was entitled to do, regarded the crimes committed by each of the appellants as particularly serious examples of their kind. He said:
"Each of these crimes in its particular circumstances is serious indeed. Each of you was armed with a knife, which each of you separately, spontaneously and quite gratuitously, used to attack and stab two young men. Each attack was cowardly and brutal and was made without the slightest justification, excuse or provocation. In your case, Bellingham, a young man suffered serious injury indeed from which fortunately he has made substantial, although not complete, physical recovery. In your case, Fenton, a decent young man whose life held much promise has died as a result of your criminal conduct. The grief and pain your crime has brought to his family, who loved him dearly, is almost unbearable for them. The victim impact statement of Robert Sekrevski tendered before me is a powerful statement of the overwhelming loss that the Sekrevski family has suffered by reason of your crime."
In the case of Bellingham, his Honour concluded:
"In your case, Bellingham, a young man has suffered serious injury, the psychological consequences at least of which will affect him for a very long time, if not for the rest of his life. Even now he continues to suffer vivid flashbacks of the events of that night, when he is both conscious and asleep. He suffers these consequences through no fault of his own but because you, when armed with a knife and perhaps emboldened by your consumption of liquor, saw fit to confront him for no logical or rational reason. Having assaulted him by punching him, you then, upon his endeavouring in self-defence to return the punch, chose to stab him in an area of the body vulnerable to serious injury. You gave him no warning or other opportunity to avoid the consequences of your criminal attack upon him."
In the case of Fenton, his Honour concluded:
"In your case, Fenton, your crime has deprived a decent young man of a promising life. The crime of manslaughter to which you have pleaded guilty can arise in a wide variety of circumstances. In your case a person who intended you no harm is, as a consequence of your unlawful and dangerous behaviour, dead. This court must uphold the sanctity of human life and, consistent with other sentencing considerations, must endeavour to deter those who are so inclined from acting as you have done. The death of Nikolci Sekrevski occurred because you were prepared to carry a knife and because you were prepared to use that knife to assault him in a gratuitous outbreak of violence. There is not a scintilla of evidence to suggest that you had any reason whatsoever to justify the use of a knife in the circumstances. You stabbed Sekrevski in the area of the chest where the possibility of him suffering at least serious injury was far from remote. Likewise you gave him no warning or other opportunity to avoid the consequences of your criminal attack upon him."
In imposing the sentences which he did, his Honour was of the view that general deterrence should be the significant purpose of punishment. He said:
"Regrettably, the carrying and use of knives by young men in our community is not uncommon. Those who carry knives and are prepared to use them to inflict injury upon others must know that if, as here, serious consequences follow, the community will not tolerate such behaviour. In my view, the circumstances of this case in relation to each of you are such that they call for a sentence which reflects the community's abhorrence of such behaviour and calls for condign punishment to demonstrate the importance in particular of general deterrence."
His Honour accordingly was not prepared to impose an intensive correction order upon the youthful Bellingham, as his counsel had suggested, nor was he prepared to order detention in a youth training centre.
On behalf of each appellant, it is now contended that the sentence which his Honour imposed is manifestly excessive.
Mr Tehan, who appeared for Bellingham, submitted that his client's youth, his good character and the lack of premeditation in his conduct demonstrates that a sentence of five years is simply too high: indeed, so high, so Mr Tehan contends, that no such sentence has ever been imposed before on a person who was aged 19 at the time when the crime was committed. Mr Tehan has referred the Court to the impressive character evidence which was put before the sentencing judge, suggesting that Bellingham's offending was "out of character" and making it plain that the remorse expressed by the appellant is indeed genuine, as, he says, is reflected in Mr Cummins's report. Mr Tehan suggested that his Honour's remarks as to the level of Bellingham's remorse were unfair, in the sense that the appellant has been unable to make, because of his peculiar personality make-up, genuine expression of the remorse which he truly feels. It was submitted that so strong were the mitigating factors put before the judge that this Court should conclude that either his Honour has undervalued them or has placed too much weight on the aggravating features of the crime. We were referred to a number of authorities in which this Court has emphasised that caution should be exercised in sentencing youthful offenders to prison, particularly first offenders. Rehabilitation, it was put, should in such circumstances generally take precedence over deterrence as the primary sentencing consideration. Mr Tehan put it that the rehabilitation prospects were greater than the judge was prepared to allow for.
Not dissimilar submissions have been made to this Court by Mr Carter on behalf of the appellant Fenton. His client could not call in aid, as could Bellingham, a trouble-free history. Mr Carter instead relied upon what he called the absence of violent prior convictions. He laid emphasis upon the early plea of guilty, the demonstrated remorse and the comparative youth of Fenton at the time of the offence. He further stressed his client's unfortunate and unassisted background and his low level of intellectual development, aided in part by his resort to drugs such as ecstasy and amphetamine. He submitted that the sentencing judge had failed sufficiently to appreciate the relative spontaneity of the appellant's offending, which led to an over-emphasis on general deterrence and insufficient weight being attributed to the diminished moral culpability of his client. Furthermore, it was contended that, notwithstanding the different crimes and the outcomes thereof, Fenton was entitled to be aggrieved by the disparity between the punishment meted out to him and that meted out to Bellingham. It was put by Mr Carter that this sentence "looks like a sentence" imposed after a trial, where the offender has put the Crown to its proofs. He submitted that rehabilitation has not only "taken a back seat" but has disappeared "off the screen". In failing to recognise the spontaneity of Fenton's participation in the fracas, it was said that his Honour had not properly addressed the appellant's moral culpability. This was reflected, it was put, in the statement made by the prosecutor before his Honour that in his view there was little to distinguish between the moral culpability of each of the two offenders.
Counsel for the respective appellants have said, I think, all that could reasonably be said on behalf of their clients. At the end of the day, I remain unpersuaded, for myself, that any error has been demonstrated in the exercise of his Honour's sentencing discretion. In each case the thrust of the submission put to this Court is that the sentence imposed is manifestly excessive, a ground of appeal which does not, and cannot, admit of much argument.
I have been at pains to set out in some detail the sentencing remarks of Kellam, J., because they show, in my view, the care and attention, and the clarity of application of principle, which attended his Honour's sentencing exercise.
I am quite unable to discern for myself any error or approach on the part of the judge in the form that counsel has expressed. Nor can I say that the sentences which he imposed, whilst stern, are manifestly excessive. The offences were, as the judge said, very serious crimes, carried out in a public place upon defenceless victims, and were the ultimate product of an all too prevalent habit of carrying, producing and preparedness to use death-dealing weapons. In my opinion, his Honour was quite correct to regard these crimes as so serious as to warrant emphasis on the purpose of deterrence, both general and specific, in the sentencing exercise, and to conclude that no sentence other than immediate incarceration in an adult prison could be justified. The sentence which he imposed upon Bellingham was 25% or thereabouts of the maximum penalty available, and once his Honour had ruled out youth training and intensive correction order as appropriate sentencing options, as in my view he clearly had to, it cannot be said that he has not adequately catered for the appellant's prospects for rehabilitation in the low non-parole period which he has fixed. Nor, in my opinion, can it be said that his Honour has failed to adequately consider, or take into account, the strong mitigating circumstances which he accepted to exist in the case of Bellingham, including his remorse. His Honour was well aware of the existence of those factors and the claim which they made, and were entitled to make, upon the exercise of his sentencing discretion.
Mr Tehan has put before this Court a medical report relating to the position of Bellingham's young child, suggesting that the position of Bellingham has been aggravated because of the medical problems which have afflicted that child. This was not something known to his Honour, but in my view those factors cannot be said to have, in retrospect, demonstrated error in the sentencing process. In the long run, it seems to me that his Honour was entitled to take the view that the sheer gravity and gratuitousness of Bellingham's crime and its impact upon its victim were of such magnitude that it had to be visited by the type of sentence which he imposed. I am not prepared to say that he was in error in doing so, and I would dismiss Bellingham's appeal.
I am also of the view that no error has been exposed in the sentencing exercise which his Honour carried out in respect of Fenton. His crime too was a very serious example of the crime of unlawful and dangerous act manslaughter. Indeed, so gratuitous and unnecessary was the callous stabbing of his defenceless victim, hitherto unknown to him, that it seems to me that it would have been surprising if his Honour had not categorised his conduct in the terms which he did. His Honour was entitled to take the view that the crime was of such a nature that the purpose of deterrence and denunciation had to play the primary part in the fixing of an appropriate sentence. The head sentence which his Honour fixed is less than 50% of the maximum available, and I am far from persuaded that it is manifestly excessive. The Parliament of this State has in recent years increased the maximum sentence for manslaughter to 20 years, again reminding the courts that penalties imposed for this crime should be consonant with the maintenance of the law's respect for the sanctity of human existence. The sentence which his Honour imposed, both as to head and minimum terms, was well within the range available to him, in my view.
There is no basis for a contention of disparity of sentencing between this appellant and Bellingham. They are not only different crimes leading to differing results, but the personal circumstances of the respective offenders are very different indeed. Whilst I do not propose to suggest that principles of parity can never apply to offenders who commit different crimes, they cannot in my view apply in the circumstances which exist here.
Nor in my view has error been demonstrated in the sense put by Mr Carter, namely, that his Honour failed to give sufficient weight to the appellant's prospects of rehabilitation. It was again stressed by Mr Carter that he had no violent background. However, as his Honour noted, he had been a constant offender who had shown little inclination to reform, and particularly had not been deterred from his previous drug use or from carrying a knife.
I am not persuaded that his Honour has erred in the exercise of his sentencing discretion. As I pointed out during the course of argument, this Court does not have the luxury of re-sentencing Fenton, but can only intervene in the face of demonstrated error. No such error, in my view, has been demonstrated. I would dismiss Fenton's appeal as well.
CHARLES, J.A.:
I agree that both appeals should be dismissed, for the reasons given by the President.
CHERNOV, J.A.:
I also agree, for the same reasons.
WINNEKE, P.:
The formal order of the Court will be that the appeal of Travis Kane Bellingham is dismissed and that the appeal of Aaron Philip Fenton is dismissed.