R v Bellingham & Fenton

[2001] VSC 195

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1513 of 2000

THE QUEEN

v

TRAVIS KANE BELLINGHAM

and

AARON PHILLIP FENTON

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Criminal Law – Sentence – plea of guilty by one accused to charge of  manslaughter – unlawful and dangerous act – death caused by stabbing with knife – plea of guilty by another accused to charge of intentionally cause serious injury by use of knife – general deterrence.

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JUDGE:	Kellam J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2001
DATE OF SENTENCE:	15 June 2001
CASE MAY BE CITED AS:	R v Bellingham and Fenton
MEDIUM NEUTRAL CITATION:	[2001] VSC 195

APPEARANCES	Counsel	Solicitors
For the Crown	Mr W. Morgan-Paylor QC	Office of Public Prosecutions
For the Accused Bellingham	Mr M. Bourke	Patrick W. Dwyer
For the Accused Fenton	Mr D. Brustman	Victoria Legal Aid

HIS HONOUR:

1           You, Travis Kane Bellingham, have pleaded guilty before me to one count of intentionally causing serious injury to Aleksandar Nestorovski.  The maximum penalty for this offence is 20 years' imprisonment.

2           You, Aaron Phillip Fenton, have pleaded guilty before me to one count of manslaughter involving the unlawful killing of Nikolce Sekrevski.  The maximum penalty for this offence is 20 years' imprisonment.

3           Each of these crimes arises out of circumstances which took place at Preston in the early hours of 1 September 2000.  On the evening of 31 August 2000 at about 11 p.m. three young men, all full-time students, attended at Gower Hotel in Preston where a nightclub was being conducted.  Those young men, Aleksandar Nestorovski who was then aged 19 years, Aleksandar Stojcevski who was then aged 18 years, and Nikolce Sekrevski who was also aged 18 years of age, were friends.  Two of them played in a band together.  They had all completed Year 12 in 1999.  It is apparent from the evidence before me that the three young men had a quiet, moderate and enjoyable evening at the hotel.  Aleksandar Nestorovski consumed no alcohol at all, it having been agreed between the three friends that he would drive.  Nikolce Sekrevski was later found to have a blood alcohol content of .06 per cent.

4           In the course of the evening the three young men met some young women who were known to them or to one or other of them, and engaged in dancing and talking to friends.  That evening you, Bellingham, and you, Fenton, were present at the Gower Hotel also, although it is apparent that you had no contact with the three young men when you were all inside the premises.  Although there is no suggestion that what was to follow was premeditated, or was other than spontaneous, there is evidence that you, Bellingham, were in a confrontational frame of mind in that you spoke aggressively to a man by the name of Singleton in the premises.  For some reason whilst at the hotel you showed a knife that was in your possession to one Christina Dimitropoulos, who knew you.  You told her that you had it for protection.

5           At approximately 1.15 a.m. the three friends left the hotel.  At the same time you, Bellingham, and you, Fenton, also left the hotel.  Leaving the hotel at the same time were two young women, the aforesaid Christina Dimitropoulos and her friend one Allana Gaitanis.  Allana Gaitanis was known also to Aleksandar Nestorovski.  Indeed, she had had a discussion with him and had invited Nestorovski and his two friends to attend another nightclub with her and her friend Dimitropoulos.  Upon leaving the hotel each of you and the three other young men who were walking with the two young women, headed in a similar direction towards cars that were parked nearby.  It is clear that until this time there had been no association between the three young men to whom I have referred and either of you.  However, as that group headed towards the parked cars you, Bellingham, then shouted out to Aleksandar Nestorovski, "I just have one thing to ask you, mate.  How much can a koala bear?"  Nestorovski's response to this inane question was to say words to the effect, "As much as you can".  Shortly thereafter you, Bellingham, said something about "poofters".  Nestorovski and his friends kept walking towards his car.  He put his hand in his pocket to get his car keys.  You, Bellingham, then asked him what he had in his pocket.  He told you it was none of your business.  You then punched him in the left eye.  He returned the punch in self-defence.  At this point Nikolce Sekrevski and Alexander Stojcevski stepped in to stop the fight and a scuffle involving all five of you took place.  Both you, Bellingham, and you, Fenton, each then produced a knife.  You, Fenton, swung your knife at Stojcevski.  Momentarily after that you, Bellingham, stabbed Nestorovski in the stomach.  You, Fenton, stabbed Sekrevski in the chest with your knife at about the same time or shortly thereafter.  You both then fled from the scene.

6           The injury to Nikolce Sekrevski was fatal and he died very shortly thereafter.  The  knife with which he was stabbed penetrated through intercostal muscle, the left lung and into the pericardium leading to a laceration of the anterior pulmonary artery.

7           Aleksandar Nestorovski underwent surgery for a stab wound to the abdomen.  Like Sekrevski, he was stabbed in an area of vital organs with his stomach and pancreas being lacerated.  He spent six days in hospital.

8           You, Fenton, have pleaded guilty to the count of manslaughter on the basis that your actions were both unlawful and objectively dangerous in the circumstances.

9           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.

10         There are, however, a number of mitigating factors in each of your cases.  Each of you has pleaded guilty and you are entitled to have that fact taken into account in your favour.  The community has by your plea, of course, been spared the time and the cost of a trial.  Of more significance in my opinion, is the fact that the families of each of your victims and those who would have given evidence in the course of the trial are relieved of the stress and the unhappiness that reliving the events of this dreadful evening would have brought upon them.

11         I observe furthermore that in each case at the conclusion of the committal you indicated your intention to plead guilty to the charges subsequently brought against you on the presentment.

12         In each case I have been told something of your personal history and your circumstances.

13         You, Bellingham, are now aged 20 years, having been born on 24 October 1980.  Accordingly, you were 19 years of age at the time of the offence.  You have no prior convictions and a number of matters which brought you before the Children's Court on 9 December 1997 are of little relevance because of the nature of the charges and their age.  Evidence was led before me on your behalf.  I heard from Garry Hopes, who has known you for approximately 11 years.  Mr Hopes has known your family throughout that time.  He was your cricket coach at the time that you played in an under-14 team.  Mr Hopes, who is a diabetic and has defective eye sight, spoke of your generosity in driving him to various places from time to time.

14         Erin Coxin, who is your partner, gave evidence before me.  She has known you for seven years and has been in a relationship with you for four years.  She is now  seven and a half months' pregnant.  For some years you lived with Ms Coxin and her mother Kerrie Stanley.  You, in recent times, have provided considerable assistance to Ms Stanley who has suffered from a stroke.  You have a good relationship with her.  She made a statement which by consent was read to me.  In that statement Ms Stanley said that she relies upon you to constantly help lift her from bed or to help lift her from her wheelchair into the shower and to assist with her toilet, and the negotiation of steps.  She stated that you take her to hospital and physiotherapy appointments and that she is grateful to you for the care that you have taken of her.  These people about whom you care now have a special burden to bear because of your crime.

15         Your mother, Vivian Bellingham, gave evidence before me.  She told me that in 1996 she was diagnosed with cancer and that that diagnosis has had a significant impact upon her and that it affected her relationship with you both at that time and subsequently.

16         Mr William Dow, your maternal grandfather, gave evidence that he had known you all of your life.  He described you as a "soft-hearted" person who would do anything for anybody.  Mr Dow had a stroke in November 1999 and he spoke of the care that you provided to him.

17         A report from clinical psychologist, Mr Jeffrey Cummins, was tendered before me by consent.  Mr Cummins obtained a detailed history from you.  His report referred to a particular difficulty suffered by you when your parents moved to Yarrawonga following upon your mother's diagnosis as suffering from cancer.  You provided a history to him that in Year 11 you were taunted repeatedly at school.  Eventually you left school when you were attacked physically and had rocks thrown at you.  It is apparent from the history provided to Mr Cummins and from other material tendered before me that you have been engaged in employment since you left school at the age of 17.

18         You have been employed as a full-time service station attendant and garbage man and at other times have held a number of casual employments, including factory work, telephone sales and lawn mowing.

19         You were examined by Mr Cummins on 24 May 2001.  You told Mr Cummins that you felt "terrible" about the injury you had caused to Aleksandar Nestorovski.  Mr Cummins stated that you spoke spontaneously about your guilt in relation to assaulting your victim and he has formed the opinion that you do present as being both genuinely remorseful and genuinely psychologically overwhelmed by your current legal predicament.

20         It should be noted that apart from the evidence of Mr Cummins there is little other evidence of remorse before me.  Your record of interview with police on 1 September 2000 suggests no evidence of remorse, nor did any other witness called on your behalf suggest in any detailed fashion that you suffer from remorse.  A close reading of Mr Cummins' report suggests that your fears about the consequences of your criminal behaviour are of considerable concern to you.  Whilst I accept that you suffer from some remorse, as indeed is reflected by your plea, I am nevertheless far from satisfied that you have any comprehensive understanding of the consequences of your criminal behaviour upon your victim Aleksandar Nestorovski.

21         You have been in no further trouble since this incident.  Because of your youth and with the evidence of your good character before me it is obvious that there are possibilities of rehabilitation in your case.  Mr Cummins has expressed the opinion that you have a reactive agitated depressive disorder which, in his opinion, is reflective solely of your current legal and personal predicament.  Mr Cummins has concluded that the bullying you underwent in Year 11 "sensitised", to use his word, you to conflict situations.  He expressed the opinion that this may have some relevance in terms of your offending.

22         Mr Cummins did not give evidence before me and it is not entirely clear whether he meant your sensitivity to conflict situations was increased or decreased by your previous experiences.  Mr Cummins reported that when you spoke to him you did not regard yourself as having an anger management problem.  He reported that you now conclude that you made a provocative comment to Nestorovski only because you were somewhat intoxicated.  Whether or not the unhappy events experienced by you in Year 11 "sensitised" or "desensitised" you to conflict situation, the simple fact is that on this evening it was you who initiated the conflict situation by your aggressive behaviour.  Whether you were more sensitive or less sensitive to conflict situations by reason of your former experiences appears to be irrelevant in circumstances where you and no-one else initiated the conflict with your victim.  Having initiated the conflict you were prepared to use a knife with the obvious consequences of escalation of the conflict you had started.

23         Your counsel submits that you are a very different person from the one that the events of this night demonstrate.  He submits that the period of several months that you have had in custody already have had a major impact upon you and that you have a supportive family and good employment prospects.  It is submitted that in such circumstances, and taking into account your age and lack of previous convictions, an appropriate sentence would be to permit you to serve any prison sentence to be imposed by way of Intensive Corrections Order.  Alternatively, it is submitted on your behalf that if an immediate custodial term is to be imposed it should be by way of detention in a Youth Training Centre.  I shall return later to these submissions made by Mr Bourke on your behalf.

24         You, Fenton, are aged 23 years, having been born on 26 January 1978.  You have admitted before me to prior convictions.  Putting aside matters which relate to appearances by you in the Children's Court, you were convicted in September 1997 at the Magistrates' Court at Heidelberg on numerous counts of theft, deception, going equipped to steal and other property offences.  You were also convicted on that date of using a drug of dependence.  In December 1997 you were convicted of four charges of theft and four charges of driving whilst disqualified and subsequently you were imprisoned.  On 5 January 1999 you were convicted at the Magistrates' Court at Heidelberg of four charges of endangering persons, resisting arrest and other offences.  Subsequently you were convicted at the Magistrates' Court at Heidelberg on 29 March 2000 of theft.

25         A report from psychologist, Mr Healey, was tendered before me.  Mr Healey saw you on 6 May 2001.  He said that he obtained from you a history, that you had been addicted to amphetamines for a period of three years prior to your arrest in relation to the matters which bring you before this court.  Mr Healey obtained a history that you were born in Carlton and had lived with your family until you left home at age 17.  Your parents separated when you were a child but you had little access to your father.  You have used ecstasy as well as amphetamines and you have abused alcohol.  From the age of 17 you worked as a trade assistant/labourer with subcontractors until you were imprisoned in December of 1997.  You have been largely unemployed in recent years.  Intellectual testing by Mr Healey indicated that you have a full scale IQ of 80.  Mr Healey observed that during your period upon remand you have resisted the temptation of drugs in prison and that you have endeavoured to undergo a number of relevant courses.

26         It would appear from Mr Healey's report that you consider that your conduct on this night is related to your abuse of alcohol and drugs during the period of approximately 11 months that you had been out of prison prior to the events on this fatal night and on the night in question.  Mr Healey's report is the only source of information before me as to your explanation of the background to these events, you having chosen, as you were entitled to do, to exercise your right to remain silent at the time of your interview by police on 1 September 2000.

27         Mr Healey stated that your memory is unclear about the events of the evening in question.  Mr Healey asserted that remorse is reflected in practical terms by your abstinence from drugs, your work in prison whilst on remand and your application also in prison whilst upon remand to embark upon drug education and anger management courses.  It may be on that basis that your rehabilitation has commenced, but it is nevertheless clear to me that in your case the issue of specific deterrence is a significant one.  Clearly, the term of imprisonment you served between late 1997 and mid-1998 did little to deter you from continued drug and alcohol abuse, nor did it deter you from carrying a knife, which as the circumstances of the night of 31 August 2000 make clear, you were prepared to use in an unlawful and dangerous manner in certain circumstances.

28         However, notwithstanding matters personal to each of you such as rehabilitation and special deterrence, I must, amongst other things, take into account the issue of general deterrence.  In my view, each of the crimes to which you have pleaded guilty is a particularly serious example of each such crime.

29         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 has suffered 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 which was vulnerable to serious injury by stabbing.  You gave him no warning or other opportunity to avoid the consequences of your criminal attack upon him. 

30         In your case, Fenton, your crime has deprived a decent young man of a promising life.  The crime of manslaughter to which you, Fenton, 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 Nikolce 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.

31         Regrettably, the carrying and the 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.

32         I have given careful consideration to the submission made on your behalf, Bellingham, that any such sentence should be served by way of an Intensive Corrections Order or alternatively by way of an order of detention in a Youth Training Centre.  In my view, the gravity of your crime and the requirements of general deterrence in particular are such that a sentence to be served by Intensive Corrections Order would be wholly inadequate.  It is, of course, a grave step to impose a term of imprisonment upon a youthful offender rather than an order for detention.  The issue of rehabilitation in your case is a significant matter.  However, I consider that the circumstances of your crime are such that a term of imprisonment is the only proper sentence to be imposed.  However, I do consider it appropriate, taking into account your age and prospects of rehabilitation and lack of prior convictions, to direct that you be eligible for parole earlier than might otherwise have been the case in different circumstances.

33         Likewise, Fenton, in your case I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and to impose a just punishment.  As, indeed, was conceded by your counsel, there is no alternative but to impose a term of imprisonment in the circumstances of your offence.

34 In your case, Bellingham, I sentence you to five years imprisonment. I fix a period of two years and six months during which you are not eligible to be released on parole. I declare pursuant to s.18 of the Sentencing Act you have already served 85 days in custody by reason of your commission of this offence.

35 In your case, Fenton, I sentence you to nine years imprisonment and I fix a period of seven years during which you are not eligible to be released on parole. I declare pursuant to s.18 of the Sentencing Act that the time you have spent in custody by reason of this offence is 289 days.

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