Curypko v The Queen - [2014] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0052

DAVID MARK CURYPKO	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 August 2014
DATE OF JUDGMENT:	29 August 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 192
JUDGMENT APPEALED FROM:	DPP v Curypko (Unreported, County Court of Victoria, Judge Morrish, 3 March 2014)

---

CRIMINAL LAW – Application for leave to appeal – Appeal – Intentionally causing serious injury – Domestic violence – One charge embracing repeated assaults over ten hour period – Evidence of assaults preceding charged offence admitted for contextual purposes – 24 year delay between offending and sentence – Delay in part attributable to victim’s fear and trauma and in part attributable to delay in course of investigation – Offender’s rehabilitation in interim – Plea of guilty – Remorse – Maximum penalty at time of offending, 15 years’ imprisonment – Sentence of five years’ imprisonment with two and a half years’ non-parole period – Agreed summary of the facts referable to offending – Whether judge went beyond summary in sentencing offender – Whether judge erred in holding that general deterrence was of importance as a sentencing consideration – Whether sentence manifestly excessive – Leave to appeal granted, but appeal dismissed – R v Schwabegger [1998] 4 VR 649, R v Toomey [2006] VSCA 90 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victorian Legal Aid, Geelong
For the Respondent	Mr J B B Lewis	Mr C Hyland, Solicitor for the Office of Public Prosecutions

ASHLEY JA:

The applicant, David Mark Curypko, has elected to renew his application for leave to appeal[1] against sentence imposed upon him by a judge in the County Court on 3 March 2014. If leave is granted, he submits that his appeal should be allowed, and that a lesser sentence should be imposed.
[1]Leave to appeal was refused by Osborn JA on 4 June 2014.

The sentence now challenged was that the applicant be imprisoned for five years, with a non-parole period of two and a half years.

Circumstances

Sentence was imposed after the applicant pleaded guilty to a charge of intentionally causing serious injury. The offence was committed on 17 September 1989.

The injury was inflicted by the applicant upon a young woman with whom he had been in a de facto relationship since 1987. The charge to which he pleaded guilty was the negotiated outcome of allegations that he had repeatedly assaulted the woman over a four year period. Initially, the applicant was to be charged with 48 offences arising out of at least 16 incidents.

The particular offence to which the applicant pleaded guilty embraced a course of conduct engaged in by him over a ten hour period. He was then aged 19, and the victim, HP, was aged 18.

There was an agreed factual basis referable to the charge. It was reflected in the prosecution opening, which was relevantly as follows:

In five statements to police,…

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 Curypko v The Queen

Details

AGLC: David Mark Curypko v The Queen [2014] VSCA 192
Case: [2014] VSCA 192
Decision Date: 29 August 2014

CaseChat Overview and Summary

In the High Court, the appellant, Curypko, sought leave to appeal against his conviction and sentence for intentionally causing serious injury in circumstances of domestic violence. The incident spanned a ten-hour period with multiple assaults, and the victim had delayed reporting the matter for 24 years due to trauma and an investigation delay. Curypko pleaded guilty, and the court sentenced him to five years in prison with a non-parole period of two and a half years. The main legal issues revolved around whether the trial judge exceeded the agreed summary of facts in sentencing, misapplied the principle of general deterrence, and whether the sentence was manifestly excessive.

The court examined whether the judge correctly applied the sentencing principles, especially considering the delayed reporting and the offender's remorse. The judge’s consideration of general deterrence was scrutinised against established precedents, particularly R v Schwabegger and R v Toomey. The High Court found that while the judge did not strictly adhere to the agreed facts, the overall sentencing was not outside the bounds of acceptable judicial discretion. The court concluded that the sentence was not manifestly excessive, despite the lengthy delay and the appellant's rehabilitation, as it balanced the principles of retribution, deterrence, and rehabilitation.

The appeal was dismissed but leave to appeal was granted, reflecting the High Court's cautious approach to interference with the trial judge's sentencing discretion. The judgment underscored the importance of context in sentencing, particularly in cases involving domestic violence and significant delays in reporting. The court emphasised that the sentence was proportionate to the severity and nature of the offence, and that the principles of general deterrence, while relevant, should be balanced against other sentencing objectives.

The final orders of the court maintained the original sentence, confirming the judge's authority to consider a range of factors in reaching a sentencing determination, even when those factors extend beyond the agreed summary of facts. The court's decision highlighted the complexity of sentencing in cases of domestic violence and the need for a nuanced approach that considers both the immediate circumstances of the offence and the broader context in which it occurred.

Orders