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R v Stratton

R v Stratton

Case [2008] VSCA 130 1 August 2008

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 106 of 2007

THE QUEEN
	v
LEONARD NOEL STRATTON

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JUDGES:	ASHLEY and NEAVE JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 May 2008
DATE OF JUDGMENT:	1 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 130

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CRIMINAL LAW – Appeal against sentence – Guilty plea to manslaughter by unlawful and dangerous act – Appellant pointed loaded rifle in general direction of victim at night on residential property – Context of offending - Whether sentence of 11 years’ imprisonment with non-parole period of eight years manifestly excessive – Appeal allowed – Appellant re-sentenced to nine years’ imprisonment with non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Neave JA and Lasry AJA. I agree with Lasry AJA that the appeal should be allowed and that the appellant should be re-sentenced to 9 years’ imprisonment with a non-parole period of 7 years.

Circumstances of the manslaughter

The appellant pleaded guilty to manslaughter. He thereby admitted to the elements of the offence, which in his case was the killing of Dai Van Nong by an unlawful and dangerous act. The unlawful act was the presenting of the firearm in the victim’s general direction. Such conduct was unlawful, I think, because it contravened one or other of s 5(1) or (1A) of the Firearms Act 1996.[1] The act was dangerous because a reasonable person in the appellant’s position would have realised that he was exposing another to an appreciable risk of serious injury.[2] Even if it be assumed that the appellant was unaware that the weapon had a hair trigger, presenting a loaded weapon in the general direction of another person in the dark was an act of that quality.
[1]The appellant was a ‘prohibited person’ as defined by s 3 of the Act by reason of any one of convictions in December 1997, May 1998, November 1998 and July 2001.
[2]Paraphrasing Wilson v The Queen (1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ).

Other than what I have just said, the learned sentencing judge was asked to sentence the appellant on the basis that he had simply presented the gun in [the deceased’s general] direction and [it had] discharged.’ It was implicit in this version of events that the appellant had not intentionally discharged the firearm. This was consistent with the weapon – which was never recovered - being described as having had a ‘hair trigger’.

It is not to the point whether the version of events upon which the learned judge was asked to sentence the appellant strains credulity. For it was the basis upon which the Crown, having accepted the appellant’s plea, presented the matter to the learned sentencing judge.

Contextual circumstances.…

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 Stratton

Details

AGLC: R v Stratton [2008] VSCA 130
Case: [2008] VSCA 130
Decision Date: 1 August 2008

CaseChat Overview and Summary

The appeal in R v Stratton involved the appellant, Stratton, who was convicted of manslaughter by an unlawful and dangerous act. The conviction stemmed from an incident where the appellant pointed a loaded rifle in the general direction of the victim on a residential property at night. The case was heard in the Court of Appeal, where Stratton challenged the severity of his sentence, arguing that it was manifestly excessive. The court was tasked with determining whether the sentence of 11 years’ imprisonment, with a non-parole period of eight years, was appropriate given the circumstances of the offence.

The central legal issue before the court was whether the sentence imposed on Stratton was manifestly excessive. The appeal hinged on the need to balance the gravity of the offence with the context and circumstances surrounding the incident. The court had to consider the principles of sentencing for manslaughter and whether the original sentence deviated materially from the sentencing norms for similar offences. The appellant argued that the sentence was disproportionate, taking into account his guilty plea, the absence of prior convictions, and the specific circumstances under which the offence was committed.

The court, in its reasoning, acknowledged the severity of pointing a loaded firearm at another person, which inherently carried significant risks of death or grievous bodily harm. However, the court also considered the appellant's background, his guilty plea, and the particular context of the offence, which did not involve an immediate threat to the victim's life. The court found that the original sentence of 11 years with a non-parole period of eight years was indeed manifestly excessive. It re-sentenced Stratton to nine years’ imprisonment with a non-parole period of seven years, considering it a more proportionate reflection of the culpability and circumstances involved.

The final orders of the court involved the re-sentencing of the appellant to nine years’ imprisonment with a non-parole period of seven years. This decision underscored the importance of tailoring sentences to the specific facts and context of each case, ensuring they are neither excessive nor inadequate in relation to the offence committed.

Orders