R v Bellingham & Fenton - [2002] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 152 of 2000
No. 156 of 2000

THE QUEEN

TRAVIS KANE BELLINGHAM
and
AARON PHILIP FENTON

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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…

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.

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Details

Case: [2002] VSCA 35
Decision Date: 20 March 2002

CaseChat Overview and Summary

In the matter of R v Bellingham & Fenton, the appellants, Bellingham and Fenton, faced criminal charges arising from an incident where they used knives against individuals unknown to them and without any prior provocation. The dispute centred on the appropriateness of the sentences handed down by the lower court, which were 9 years imprisonment with a non-parole period of 7 years for Bellingham and 5 years with a non-parole period of 2½ years for Fenton. The appellants contended that their sentences were manifestly excessive. The case was heard by the court of appeal, which was tasked with determining whether the sentences were proportionate and justifiable given the circumstances of the offence.

The legal issues before the court were twofold: first, whether the sentences imposed were manifestly excessive, and second, if the court should intervene under the principle of manifest excessiveness. The court needed to consider the gravity of the offences, the culpability of the appellants, and the principles of sentencing as outlined in relevant legislation and judicial precedents. The court also had to balance the appellants' rights with the need to uphold public confidence in the criminal justice system.

The court of appeal found that the sentences were not manifestly excessive. It considered the severity of the offences, the use of knives by the appellants against individuals without provocation, and the resulting injuries. The court acknowledged the need for deterrent sentencing in cases involving the use of knives but also recognised the importance of individualising sentences to reflect the particular circumstances of each case. The court held that the sentences were proportionate to the offences and did not constitute a manifest excess. Consequently, the appeal was dismissed, and the original sentences were upheld.

No further orders were made by the court.

Orders