Director of Public Prosecutions v Curypko
[2014] VCC 295
•3 March 2014
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT GEELONG
CRIMINAL JURISDICTIONCR-13-01851
DIRECTOR OF PUBLIC PROSECUTIONS v DAVID MARK CURYPKO ---
JUDGE: HER HONOUR JUDGE MORRISH WHERE HELD: Geelong DATE OF HEARING: 13 December 2013 and 3 March 2014 DATE OF SENTENCE: 3 March 2014 CASE MAY BE CITED AS: DPP v Curypko MEDIUM NEUTRAL CITATION: [2014] VCC 295 REASONS FOR SENTENCE
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APPEARANCES:
Counsel Solicitors For the Director of Public Prosecutions Ms B. Paridaen For the Accused Mr M. Phillips Mr N. Goetz
HER HONOUR:
1David Mark Curypko, you are to be sentenced in respect of one charge of intentionally causing serious injury. The maximum penalty for this crime is 15 years' imprisonment. You pleaded guilty when arraigned before me on 13 December 2013.
Circumstances of the Offence
2The learned prosecutor, Mr Doyle, opened the Crown case in accordance with the written summary of prosecution opening which was tendered as Exhibit A. Rather than repeat the detail of that document, I will attach a copy of it as Annexure A to these reasons for sentence.
3Your counsel, then Mr McKenzie, admitted the accuracy of all of the facts asserted against you, although he noted that you could not remember much of the detail, as this period in your life was a blur.
4I raised with your counsel whether your plea recognises your consciousness of guilt for both the charged offence and for the uncharged acts asserted against you. Your counsel confirmed that you accepted you committed all the acts referred to in Exhibit A.
5You are to be sentenced on the basis of those agreed facts.
6Exhibit A summarises a number of statements the complainant made. There were five in all. You do not challenge the accuracy of those statements although you do not recall the events, the subject of them, as I have said.
7In 1987, Helen Pavlovic was 16 years of age. You were then aged 18. The two of you entered a de facto marriage. In the four years of your relationship with Ms Pavlovic, you brutally assaulted her on many occasions. Only one of these occasions is the subject of the charge before me, although initially, you were charged in respect of other specific occasions Ms Pavlovic was able to recall.
8The hand-up brief indicates that at committal there were to be some 48 charges covering offending on a total of at least 16 occasions. However, following negotiations between your legal representatives and the prosecution, you indicated your intention to plead guilty to one charge of intentionally causing serious injury which covers the sum total of all of the offending you committed against Ms Pavlovic over a ten hour period, on 17 September 1989.
9She was then aged 18 and had only just given birth to your daughter about two weeks beforehand. You were aged 19.
10The horrifying circumstances are best described by Mrs Pavlovic in her statement to police commencing depositions p.23. She said,
"On the 17th of September, 1989, we were at home when I was again assaulted by David. My mother's couch and two recliners were in the house. I went to sit on David's knee. He seemed to get angry over this and what followed was a ten hour assault on me. By this stage my daughter had been born and was about two weeks old. He threw me to the ground and made me head-butt my mum's stereo unit. He dragged me back and flung me on to my back. He placed his knees on my forearms so that they were pinned down. He then started to bash me to the head and body. I think it would have been about the first two or three punches to my head which caused my jaw to break. I recall hearing a click, but did not feel pain immediately. As a result of being assaulted around the face, it was very swollen. It was not until that I was allowed to have a cigarette, that I found that I could not draw back on it. That night he bashed me with a baseball bat, a vacuum cleaner pole, and there were vases smashed over my head. He also threw a glass Copper Art table at me and that struck me in the head. He would push my head into the concrete walls of the house. I really thought that I was going to die that night. He also kicked me with his steel capped boots on this night. I remember him dragging me into the bathroom, lifting my head up towards the mirror and then telling me that I was nothing. He also forced my head down into the toilet and held my face in the water so that I could not breathe. He would lift my head for me to breathe, but he would not leave it out for very long as I could not get my breath. Each time he forced my head down the toilet, my forehead was hitting the bowl and it was extremely swollen as a result of this. It just went on and on for about ten hours. Anything that he could get to hit me with, he would. This included the nappy bucket and the toilet roll holder. On one occasion, he grabbed me by the back of the hair and threw me on to a round table in the kitchen. He has taken a knife from a knife block. He then put his arm across my body and told me not to move. He then held me down while he heated the end of the knife with a cigarette lighter and made it glow. He then told me that I was going to die and he put the knife against my neck which caused me to bleed a little bit. I could smell my flesh burning as he dragged it across my throat. The knife was serrated and it has cut my skin about half a centimetre deep. I could not move and wanted to vomit. I did not think that I was going to see sunlight. He also stabbed me in the left shin with the plunger part of a hypodermic syringe. He just whacked it down on my leg and it broke the skin and penetrated my leg. I still have the scar to show for it.
I recall that Kayla," I will interpose here, that is the daughter, "I recall that Kayla got up and was screaming for a feed. I used to have a 24 hour feed made up for Kayla. Back then they only had glass bottles. I recall she was screaming for about 20 minutes. At the time David was bashing me and I could not get to her. I told him that I had to feed her and he has let me go and pick her up. He went to the fridge and smashed all her pre-made bottles, as well as the one I was heating up. There was nothing left to feed her. I recall that I had to make up some formula and put it into the finger of a rubber glove and prick a hole in it for her to suck on. She only took a very small part of the formula and was still screaming. David took her from my arms and threw her on to the couch…. She landed on the couch and luckily nothing happened to her. By this stage it was daylight and I copped some more backhanders as he was going to be late for work. He eventually went to work and about 9 am that morning, Sandy Clarke, came over. It wasn’t until later that day I went to hospital…. I was admitted for four days and had my jaw wired and lost all of my teeth from the assault other than six. Prior to that night, I had all my teeth which were all natural. Not all of them were knocked out, but all other than six were either knocked out or broken from that night. I also recall him cutting up all my clothes with scissors that night, as well as breaking all of my mum's crystal, and many of my mum's little knick knacks I had around the house. The whole thing seemed to be like an out of body experience and in the end you just go numb from the assault.
As a result of this I had to stand down from the bridal party of my girlfriend's wedding and had to carry a pair of pliers around with me. This was to cut the wires off if I needed to open my mouth to be sick, or something like that."
11With your clear agreement, the charge before me comprises the sum total of all acts of violence perpetrated against Ms Pavlovic over that ten hour period. This charge must also be seen in the context of an ongoing abusive relationship marked by domestic violence.
12You are not to be sentenced for the uncharged acts and I wish to make that very clear. You are to be sentenced for the conduct the subject of the charged act. This was not just a one-off occasion, immediately regretted and never repeated. The charged act was not a random act in isolation.
13Both the prosecutor, Mr Doyle, and your former counsel, Mr McKenzie, drew my attention to the case of DPP v. McMaster 19 V.R. 191. They both agreed that the uncharged acts are relevant to show context and to rebut any suggestion of a single out of character assault. The uncharged acts are summarised in paragraph 3 of the prosecution opening, Exhibit A. I have read all of Ms Pavlovic's statements. It is clear that you brutally assaulted her on many occasions, both before the charged offence, and even when she was pregnant with your child, and after the charged offence.
14To put the charged offence into context, I will summarise your assaults prior to the charged offence. I am relying also on the summary as contained in the police summary in the hand-up brief (see Depositions pages 1-5A).
15The first occasion noted is on your birthday in 1987 when Ms Pavlovic baked a birthday cake for you and used an entire bottle of rum as an ingredient. When you found out that she had used all of your rum, you became angry. You pushed her around, struck her on the head on approximately two occasions and she sustained lumps to her head.
16The second occasion was between 1 November 1987 and 2 February 1988. She was at home, she became angry with you after you had been out with friends. She locked the security door. When you came home you threatened to rip the door open from its hinges if she did not let you in. She opened the door. As you walked past her you struck her with a motorcycle helmet to the left side of her face which resulted in cheek and eye swelling.
17The third occasion, 1 November 1987 to 2 February 1988. You became angry for a reason that Ms Pavlovic cannot recall. You grabbed her by the hair, dragged her down the hallway to a bedroom and threw her on a bed. You wedged a knife in the door to the bedroom to prevent it from being opened. You then struck her to the head and face. You caused her nose to bleed and, as a result of the assault, she believes she was concussed and had a sore nose for some days.
18The fourth incident. This occurred between 1 November 1987 and 2 February 1988. The two of you were walking to the Corio West Primary School in the presence of a number of other people. You commenced striking Ms Pavlovic to her head about five or six times. You grabbed her by the arm and frogmarched her about. You pulled her hair and she was sore to the head for a number of days.
19The fifth occasion, between 1 March 1988 and 30 November 1988. On this occasion, Ms Pavlovic was late home from work. You did not have any money and you demanded that she give you her pay. You made a number of accusations against her, then launched into a frenzied attack upon her. You assaulted her with an aluminium baseball bat. You dragged her by the hair to a number of rooms in the house. You forced her to crawl on her hands and knees as she was being pulled along.
20You struck her on a number of occasions, either with your fists, or with the baseball bat. On this occasion the attack lasted some two or three hours. As a result of this, Ms Pavlovic sustained broken ribs, she was bleeding from the nose and had bruises and abrasions all over her body.
21The sixth occasion was between 1 March ‘88 and 30 November ‘88. You and a friend had been out drinking and upon returning home wanted to play loud music. Ms Pavlovic would not let you, and you started to assault her, striking her to the head and face. Her nose bled and she sustained a large lump on the bridge of her nose.
22The seventh occasion was committed between 1 March ‘88 and 30 November ‘88. You had been drinking at a local hotel before returning home with a friend. You demanded your dinner and having had it placed in front of you, you threw it at Ms Pavlovic. You then dragged her into the kitchen by the hair, bashed her head into the fridge door and demanded that she cook you something else. You repeatedly punched her to the head and face as well as bashing her head against the fridge door.
23The eighth occasion was committed between 1 March 1988 and 30 November 1988. You struck Ms Pavlovic to the head with a lamp. You dragged her to a bedroom and assaulted her in the head and face area. You also kicked two bedside tables. She received a cut to the head which bled, but did not require stitches.
24The ninth occasion was committed between 1 March ‘88 and 30 November ’88 and covers multiple occasions (five or six similar assaults) in this period. You assaulted her while she was in the shower.
25The tenth identified occasion was somewhere between 1 January 1989 and 24 February 1989. By this stage, Ms Pavlovic was about 12 weeks pregnant with your daughter, Kayla. You punched Ms Pavlovic with a closed fist, causing her nose to bleed. You pulled her around by the hair. She believed she was starting to miscarry and went to the Geelong Hospital where she remained a few days.
26The 11th occasion was committed on approximately the 23rd of February 1989. You punched Ms Pavlovic, possibly because she did not have dinner on the table when you got home. You punched her to the head and stomach and dragged her by the hair to the bedroom. She was admitted to the Geelong Hospital and remained in hospital for two days as she was starting to miscarry.
27The 12th occasion again was committed when Ms Pavlovic was pregnant. Again she was admitted to the Geelong Hospital because you punched her to the head and body. On this occasion, her misdemeanour was not having your socks folded and ready for work.
28The 13th occasion was on or about the 12th of July 1989. You assaulted her, resulting in her admission to the Geelong Hospital.
29Then the charged offence was committed.
30Even after the charged offence, your assaults continued. There was an occasion between 1 December 1988 and 31 December 1989. Ms Pavlovic still had her jaw wired from the previous assault. You dragged her by the hair into the bedroom. You tied her hands together in front of her body. You told her you were going to give her a “hot shot” and stabbed her in the arm about six to eight times.
31As a result of this assault, her arm started to burn. It swelled at the elbow and made her feel nauseous. Her arm was swollen for at least a week.
Arrest and Interview
32It took Ms Pavlovic a long time to summon the courage to leave you. It took her many years to finally report your crimes to police. As I said, there were some five statements over a lengthy period of time. There was considerable delay, partly because of Ms Pavlovic's fear and trauma and then even further delay caused by change in investigators.
33Eventually you were interviewed by police in South Australia on 21 August 2012. You denied any wrongdoing and expressed shock in response to the nature of the allegations levelled against you.
34I have spent some time summarising the uncharged acts. In no way are you to be sentenced in respect of the uncharged acts, and I am repeating myself here.
The gravity of your offending; domestic violence
35General deterrence is a significant factor in cases involving domestic violence. (See R v. Gojanovic [2005] VSC 97 and R v. Monks [2001] VSC 516.)
36In Monks, Justice Coldrey said this:
"Violent responses to the emotional problems arising out of domestic relationships cannot be tolerated by the courts. The courts have a duty to deter those who may be minded to resort to such violence. It follows that general deterrence is an important element of any sentence to be imposed."
37Whilst the case to which I have just referred involved domestic violence resulting in death, the principles set out in those cases are apposite. (See, for example, R v. Hester [2007] VSCA 298 particularly at paragraph 19 which I will not set out in full here.) (See also DPP v. Smeaton [2007] VSCA 256, particularly at paragraphs 21 to 22.)
Effect of offending on Victim
38I now turn to the effect of your offending on the victim. Exhibit C was a Victim Impact Statement made by Ms Pavlovic dated 13 December 2013. It was read in full to the court by Ms Pavlovic’s psychologist.
39Your offending has had a profound impact on Ms Pavlovic. Although in her victim impact statement Ms Pavlovic refers to the totality of your violence, I re-state that you are to be punished only in respect of the charged act.
40In her Victim Impact Statement, Ms Pavlovic said that she waited for over 24 years for the day to speak. She said,
"I had been silenced in fear and had undergone lengthy therapy to regain my strength and my voice. I worked to prepare to take the stand and give evidence and then it did not happen, so, preparing this statement is important and I feel it is important, but for years I have tried to forget it and push it down just so I could get through my days…. I am scared on so many different levels. It is confusing and empowering and intimidating and threatening and terrifying…. Just like my experiences with David were all those years….
I have such disbelief and doubt that anyone can comprehend the horrific experiences and the effects on me. I want to get it right in this statement to the court, so that I feel like I've been a voice for myself after being silenced in fear for so many years and I want to be a voice for other women who have similar experiences. My emotions are intense and devastating and exciting and painful all at once.
I still feel unworthy…. So sad… destroyed, after all these years still. Now it's time to pick up the pieces of what has been my destroyed, damaged life. I lost all love for myself. I have no self worth. It's taken a toll on me and the pain is carried with me still, and I fear will last a lifetime. The effects are all consuming and painful."
41Ms Pavlovic then went on to describe the first time she met you which was when she was 16 years of age, and the first time you assaulted her. After that, she then went to live with her mother. She said after that,
"We were still communicating by letter and phone and he was full of apologies about what he had done and swore it would not happen again. After a while he convinced me to move up to be with him in a self-contained unit at the caravan park his mother managed."
42She said that when she was 16, and after her mother died, you told her that both her parents were dead; you were the only one that she had left in the world. She said,
"I believed him, so even though I was afraid to be with him, I was also afraid to be without him."
43She described the beatings getting more intense while she was pregnant and the admissions to hospital before she had the baby. She said you never took her to the hospital. She either had to go by herself or a neighbour would call an ambulance.
44After she had the baby, the frequency of the beatings increased from once every couple of days, to every day. She said,
"I was ashamed then and I am ashamed now… so ashamed. I didn't even feel I could tell the full extent of it to police recently… such shame.
Over the course of my relationship with David: close to four years, I had a repeated multitude of physical injuries: bruises, abrasions, black eyes, blood noses, broken ribs, hair pulled out, broken nose, swelling, stab wounds, broken ribs, dental treatment, tooth extractions and, ultimately, a shattered jaw, teeth knocked out, my throat was slit and burned, and he bashed me so much that I started to miscarry six times. As his violence escalated the frequency and severity of this physical abuse and my injuries increased. I was admitted to hospital six times and saw my general practitioner at Corio Community Health Centre.
Treatment over that time included hospital bed rest, pain relief, surgery to insert pins in my jaw and wire my jaw, dressings et cetera.
I still have ongoing physical problems, including having lost the ability to bite properly, requiring me to eat soft foods. I sometimes have lockjaw. I still have great pain and further dental problems. I continue to get infections in the gum from where the surgery was performed and not successful.
At this stage I need further dental work on a live root which will be performed in hospital. I have yearly scans to check on the pins in my jaw. Cold weather causes my whole jaw to ache.
… I have scars on my leg and neck and a deformity on the bridge of my nose.
… As a result of my time with David, I suffered financial loss."
45Ms Pavlovic also spoke of her later return to school as an adult. She completed her HSC and then commenced an Advanced Diploma in Justice. She said,
"Even then, as things began to get closer to co-operating with police over this matter, I found I could not focus enough to complete it. I would still like to go back and finish the diploma."
46As to her current position, she said,
"I'm constantly haunted by my past. I shake just thinking of it. So many things remind me of things that terrify me. It affects me, my new partner and marriage, my children and my future.
Writing this statement is in itself a trigger and has affected my sleep, my eating patterns and my relationships.
… The physical injuries and scars are a constant reminder. I look in the mirror and all those multiple assaults stare back at me…
There is really no escaping it… all day every day and at night… reminders are everywhere."
47I should say that that is an edited version of the Victim Impact Statement.
Plea in mitigation
48Your counsel, Mr McKenzie in December and today, Mr Phillips, conceded the gravity of your offending. However, in December, Mr McKenzie submitted that given the immense delay and your rehabilitation in the period of delay, together with your guilty plea, you should be sentenced to a term of imprisonment to be wholly suspended.
49No evidence was called on your behalf that day and no reports were tendered. I questioned whether or not this case had been taken seriously. Mr McKenzie then sought an adjournment and I agreed to it, to allow material to be gathered on your behalf. I granted the adjournment until today and remanded you in custody. Today Mr Phillips appeared on your behalf and a more sober approach was taken to your offending.
50Mr Phillips called two witnesses, your sister and forensic psychologist, David Ball. A number of exhibits were tendered. I will not set them out in full here given it is quarter to five, but the full list will appear in the revised reasons for sentence, unless either of you wish me to read those now? Thank you very much. I have read all of the exhibits.
A
Summary of prosecution opening
B
Record of subsequent convictions and court appearances of the offender
C
Victim impact statement dated 1312/13
One
Defence submissions for plea
Two
Report from David Ball 24/2/14
Three
Letter from Allison Murdoch, undated
Four
Letter from Allyson Spencer, dated 20/2/14
Five
Copy certificates from Kangan Institute:
Certificate II in cleaning operations (Participate in workplace safety arrangements)
Certificate II in Kitchen Operations (Prepare and Serve Espresson Coffee; Use Hygienic Practices for food safety)
Certificate II in Kitchen Operations (Prepare and Serve Espresso Coffee)
Certificate of attendance – Prison legal education & assistance court readiness program
Six
Copy letter from Dr George Zankov, date 11/1/14
Seven
Copy Letter addressed to Lawyer Concerned from Dr Brent Ducker, date 28/1/14
Eight
Undated letter from Annette Curypko
Nine
Copy letter ‘To whom it may concern’ from Dr Marcin Stankiewicz, dated 26/2/14
Ten
Photograph of the prisoner
51Your counsel, Mr Phillips, submitted in all the circumstances you should be imprisoned but that the portion to be served should reflect the total of your pre-sentence detention, namely 80 days.
Turning to your personal circumstances
52Your personal history is well set out in Mr Ball's report and in your sister's evidence. I will not recount the totality of your sister's evidence, it was quite moving.
53You had an unhappy home life marked by domestic violence. Your father drank to excess and frequently assaulted your mother, you, and your brother. Your parents split up when you were 12 and you initially went to live with your mother in Mount Gambier, but you returned to live with your father when you were about 15 years of age. You lived in a caravan at the back of your father's place.
54After leaving school you had a patchy employment history, mainly as an unskilled labourer. You commenced drinking alcohol and taking illicit drugs when you were in your teens.
Prior character
55You have no prior convictions, but on your own admission, you were using illicit drugs before, during and after the offence, the subject of the indictment. In addition, you have a number of subsequent offences, including for violent crimes. On one occasion you bashed a man who failed to deliver a puppy to you contrary to an agreement. That explains your conviction for unlawful assault in the Geelong Magistrates' Court, on the 18th of October 1994, in respect of which you were given a one month suspended sentence.
56You breached the terms of your suspended sentence. You also have subsequent convictions for wilfully damage property, Geelong Magistrates' Court, 30 October 1989. You were fined $300. Handling stolen goods, Werribee Magistrates' Court, 17 June 92. You were convicted and fined $250.
57In the Werribee Magistrates' Court on 21 October 92, unlawfully on premises, assault police, or person assisting police, and use other drug of dependence. Without conviction the matter was adjourned to 20 October 1993. You were ordered to pay $300 to the Court Fund.
58On the 11th of April 95, you appeared in the Geelong Magistrates' Court and were convicted and fined $250 on each charge of cultivate a narcotic plant, cannabis, and possess cannabis, and you were also dealt with for the breach of the suspended sentence imposed for the unlawful assault I have described.
59On the 14th of November 1996, you appeared in the Geelong Magistrates' Court in respect of handling stolen goods. You were convicted and fined $400.
60There are also offences committed whilst in South Australia, including driving offences and obtain financial advantage (I understand the latter was a Commonwealth offence). There are various driving offences and I will not repeat them all as they are of limited relevance to my task in sentencing you today.
61Since then, however, you have turned your life around. After leaving the relationship with Ms Pavlovic, you formed a new relationship with your current partner. You eventually gave up the drugs, although not immediately. You modified your alcohol intake. You still drink.
62You have been in a stable relationship with your current partner for many years now and you have a son who has just completed Year 6.
Drug and alcohol addiction
63Your counsel submitted that at the time of offending you had a longstanding drug habit and that at the same time you used alcohol to excess. I asked whether your substance abuse should be regarded as an aggravating, mitigating or neutral factor in sentencing you.
64Mr Phillips submits it is a neutral factor. On the other hand, Mr Doyle submits that there is no clear evidence that your drug taking or alcohol abuse was responsible for your violent outburst on this occasion or on any of the occasions the subject of the uncharged acts.
65Rather, he submits that I should characterise your offending as domestic violence against a backdrop of drugs and alcohol.
66At the time of offending you were working. You have no memory of the incidents, or you claim to have no memory of the incidents, and cannot say what you did, much less why you did it. I agree with Mr Doyle that there is no evidence that drugs and/or alcohol was a significant or major contributor to your offending on this occasion, although I do accept you had a serious problem with substances in that period.
Verdins factors
67There are no psychiatric or psychological reasons to explain your conduct or reduce your moral culpability. Although you told police and your counsel that you have no memory of the incident, Mr Ball found your long-term memory to be functioning normally. He reported:
"His", meaning your, "Immediate recall, short-term memory and long-term memory all appear to be functioning normally and he was well oriented to time, place and person.
Mr Curypko expressed minimal insight into his offending behaviour. He presented as possessing insight into his general psychological functioning, the effects of behaviour upon others, and the gravity of the charge he is facing before the court. He impressed me as having generally good judgment and as having matured in line with his chronological age. He presents with a clear capacity to plan and execute positive and self-sustaining behaviour. I could find no evidence of cognitive impairment and would estimate his IQ to be in the normal range."
68Under "Current situation", Mr Ball said:
"Mr Curypko explained his offence in the context of drug and alcohol abuse and said he had only a vague recollection of the incident, a generally vague recollection of his relationship with his former partner and a generally vague recollection of the years when he was addicted to drugs and alcohol. He said, 'I think I was easily misled and immature, too. I hanged (sic) out with the wrong people and tried hard to fit in. I had a bad attitude and addictions were factors, too. I can't believe how much I affected others now looking back. Not taking advice was also a huge mistake, too'.
When I pressed Mr Curypko for a further explanation he said, “I don't have memory of the incident in question. Over the years I have asked myself if I did it. I know I often think, ‘what's happened here?’ If I did (commit the offence) I'm very sorry, because I'm not like that with a clear mind. I really am (not)”.
Mr Curypko expressed remorse and regret for his actions and described his behaviour as immature and stupid. He said, 'I am very sorry for those affected by my past behaviours. I was self-absorbed and didn't consider their feelings. I wish I could change that. I am ashamed of myself still. Bringing shame to my loved one is the hardest thing I live with. I spend my life now helping family if required because that's the least I can do. I'm so sorry.'"
69Your statement that you were "self-absorbed” and didn't consider the feelings of those around you," sits comfortably with Ms Pavlovic's statement concerning your domineering and self-absorbed behaviour.
70As to diagnosis, Mr Ball ruled out any psychological condition, or any condition whatsoever, or disorder, such as might explain your conduct or justify a reduction in the need for general deterrence.
71He said, "Nor does he suffer any pervasive deficits in his personality or psychological functioning. I concur with Mr Curypko's view that his behaviour occurred in the context of immaturity, impulsivity, and stupidity, underpinned by being affected by sustained drug and alcohol abuse at the time."
72It appears that there is no long-term cognitive impairment as a consequence of your long-term drug and alcohol abuse.
Guilty plea
73You have pleaded guilty and you are entitled to have that fact taken into account in your favour. A guilty plea, no matter why or when it is entered must almost always attract a sentencing discount. I consider that your guilty plea must be given considerable weight for the following reasons:
· You indicated your intention to plead guilty at an early opportunity.
· You are entitled to a statutory discount because of your plea.
· I accept that your plea evidences your remorse.
· You have avoided the cost of a trial and you have spared Ms Pavlovic the inconvenience and ordeal of giving evidence at trial; and
· There is social utility involved in your plea.
Delay
74There has been considerable delay. There was some post-offence misconduct in the period of delay, as I have said, but then a significant period of rehabilitation.
75In the period of delay, the maximum penalty for this crime increased to 20 years, although you do not face that maximum. You face the 15 year maximum that was applicable at the time of offending. You were a young offender when you committed the offence, but fall to be sentenced as an adult. A number of sentencing options are no longer open, such as an order that you be detained in a Youth Training Centre.
76As a young offender, ordinarily your rehabilitation would have been the predominant sentencing objective. But even with young offenders, and in cases of considerable delay, sometimes the offending is so grave that rehabilitation must take a back seat to other sentencing factors, such as, general deterrence and denunciation of conduct.
77This point is highlighted in the case of R v. MWH [2001] VSCA 196. That was a case involving multiple sexual offences committed against children, including eight counts of rape. The offences were committed between 28 and 38 years beforehand when the offender was aged between 18 and 28 years of age.
78The effects of delay were discussed in that case and also the consequences of remorse and reformation in the considerable period of delay.
79Some of the offences were committed in the context of a de facto relationship and, similarly, in that case, the appellant could not remember one of the complainants involved.
80At paragraph 18 of the judgment – I will not read it in full here, it will appear in the revised reasons for judgment and I will include paragraphs 18, 19 and 20, so please take as read, paragraphs 18, 19 and 20 of that judgment. Do either counsel wish me to read it in full? (Counsel: “No”)
18.“It is the effects of delay that are important for sentencing. As in R. v. Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.
19.Principle and common sense, even without the authorities to which counsel referred, sustain the proposition that there has been reformation in a very strong sense in the present case. There are passages in the sentencing remarks that show that his Honour considered specific deterrence to be irrelevant. He found that the appellant had rehabilitated himself over the period since the commission of the offences. He had not further offended and had overcome his alcohol problem. The judge accepted that the appellant was genuinely remorseful. He was in a stable relationship and stable employment. He had been involved in the local community with charitable and other similar work.
20.One has great sympathy for the victims of these crimes: except for his dysfunctional background, one has no sympathy for the young man who committed them: but one has considerable sympathy for the different person who, in his late 50s, must spend at least nine years, and may have to spend 12 years, in prison.”
81Another important case on delay involving a person who was a young offender at the time of committing multiple rapes and violent offences but who fell to be sentenced as an adult, was the case of The Director of Public Prosecutions v. Avci (2008) 21 VR 310.
82At paragraph 52 of the judgment, Maxwell P said:
"In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. In my view, however, the gravity of the offending in this case was such that the sentencing court had no alternative but to view considerations of youth and rehabilitation as subjugated to other considerations. Youth and rehabilitation must: take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness… are involved…. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised."
Submissions on Penalty
83Turing to the submissions. I have tried to summarise the submissions of counsel in my earlier remarks, but to sum up, Mr Phillips submitted that you are now in a stable relationship. You have firm family supports. The offending was significant with significant impact on the victim, however, given the period of delay and your marked rehabilitation in the period of delay, the man I am now sentencing is not the same man who committed the crime. Your life has changed and you are no longer a substance abuser.
84You fall to be sentenced for things that you did a long time ago and matters such as delay are of considerable importance.
85General deterrence is important; specific deterrence should not be a feature of the sentence, since you have turned your life around and it is inherently improbable that you will commit another offence. And that opinion is echoed by Mr Ball.
86Mr Phillips submitted that a term of imprisonment is the only appropriate response to your crime, but that the period already served should be adequate. He says no further period in custody should be served.
87On the other hand, Mr Doyle submitted that drug and alcohol does not necessarily mean that they played the major contributing role to your offending behaviour. I have already discussed this. I agree with Mr Doyle. He submitted there was no clear nexus between the drugs, alcohol and your violent behaviour on this occasion.
88He said the conduct is very serious. It was sustained over a lengthy period of time, over ten hours with multiple kinds of serious injury inflicted. He pointed to the fact that there are permanent physical and psychological injuries. He submitted given the nature and gravity of the offending, your offending falls in the higher end of the scale of seriousness for this type of crime. Moreover it was not an isolated act and that general deterrence, denunciation of your conduct and just punishment, are the dominant sentencing factors. He agreed with Mr Phillips that there is little need for specific deterrence.
89He agreed that the delay is significant. He conceded that you have rehabilitated yourself and that you have excellent prospects for rehabilitation. But, he submitted, nevertheless, a significant period of imprisonment is warranted.
Sentence to be imposed
90I take into account all of the matters personal to you to which I have referred, including your prospects for rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I agree with both counsel that specific deterrence is of little relevance in view of your rehabilitation in the period of delay.
91I am required to take into account the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I agree with Mr Ball that it is unlikely that you will re-offend in like manner.
92I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
93I must also take into account the delay and your rehabilitation in the period of delay. Further, I must not allow the uncharged acts to swamp all other considerations.
94This was a brutal, vicious assault, on a young vulnerable woman who had only just given birth two weeks beforehand. It is so grave that other principles such as delay and rehabilitation and relative youth must give way.
95I have no alternative but to sentence you to a term of imprisonment. You are convicted and sentenced to five years' imprisonment.
96In view of the length of that term, a suspended sentence is not open.
97I turn to the minimum non-parole period. By implication your counsel has urged that I fix a very, very short non-parole period as time actually served. I do not agree that such a short term is appropriate.
98In determining the non-parole period in your case, I am required to take into account the purpose of fixing a non-parole period, which is to provide for mitigation of punishment in favour of your rehabilitation through conditional freedom.
99The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account include, first, that a non-parole period has a penal element: Second, that where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period: and third, that the prisoner's prospects of rehabilitation are almost always a significant consideration. (See DPP v. Josefski (2005) 13 VR 85 at paragraph 43.)
100Taking all of these matters into account, including your prospects of rehabilitation, I direct that you serve a minimum period of two and a half years' imprisonment before becoming eligible for parole.
101Under s.18(4) of the Sentencing Act 1991, I declare that the period of 80 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Statement under s.6AAA of the Sentencing Act
102I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence, but for the plea of guilty. Therefore, pursuant to s.6AAA and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentence I would have imposed is as follows:
103You would have been convicted and sentenced to seven and one half years' imprisonment. I would have directed that you serve a minimum of five years' before becoming eligible for parole.
104I direct pursuant to s.6AAA(4) that the sentence that would have been imposed, but for the plea of guilty, be noted in the court records.
Ancillary orders
105An order under s.464ZF of the Crimes Act was sought and your counsel did not oppose the making of such an order.
106Can I have the order please. Please be seated while I sign the order.
107Pursuant to s.464ZF(2) of the Crimes Act 1958 I order that you, David Mark Curypko, undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
108Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied, in all the circumstances, the making of the order is justified for the following reasons:
109The seriousness of the circumstances of the offending warrant the order; the order is by consent, or not opposed, and the granting of the order is in the public interest.
110I must inform you, David Mark Curypko, that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted. I have deleted the blood sample.
111I have signed the order. I also wish to state that on the last occasion I asked for assistance regarding the sentencing practice that endured at the time of committing this offence. There were no clear statistics. As I have said I have done my best to do justice, taking into account the historical context of the offending.
112Any further matters?
113MS PARIDAEN: No, Your Honour.
114HER HONOUR: Please remove the prisoner now.
115(Prisoner removed.)
‑ ‑ ‑
Annexure ‘A’
IN THE COUNTY COURT OF VICTORIA Indictment No:D10289971
AT GEELONG
CRIMINAL JURISDICTION
Court Reference 13 - 01851
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
DAVID MARK CURYPKO
Date of document:
11 December 2013
Filed on behalf of:
The Director of Public Prosecutions
Prepared by:
CRAIG HYLAND
Solicitor for Public Prosecutions
565 Lonsdale Street
Melbourne Vic 3000
Solicitor’s code: 7539
Telephone : (03) 52156700
Direct: (03) 52156709
Reference: 1300630
Background
The complainant, Helena PAVLOVIC, was born on 14 March 1971. The accused was born on 3 December 1969. He was aged 19 at the time of the charged offence. The complainant and the accused were partners from 1987 through to 1991. PAVLOVIC was 16 years of age when she entered the relationship; the accused was aged 18. During the four year period they lived in the Corio, East Geelong and Geelong areas.
In 2003, PAVLOVIC attended at the Broadmeadows Police Station and made a report to police detailing four years of domestic violence at the hands of the accused. An investigation was commenced which culminated in the interview of the accused at Holden Hill Police Station in South Australia on 21 August 2012.
In five statements to police, made between 2003 and 2013, PAVLOVIC described a violent relationship during which she was regularly assaulted resulting, on occasions, in injury and serious injury. These assaults took place throughout the duration of the relationship. The assaults included a number of occasions where the complainant was struck to the head and face; a number of occasions where she was dragged by the hair through the house; a separate occasion where she was hit with a baseball bat where she says she sustained broken ribs; and 3 occasions, during a period where she was pregnant with her daughter Kayla in 1989, where she was assaulted and admitted to Geelong Hospital. The last of these incidents took place two months before the charged incident. The violence continued on after the charged incident and included an occasion where she was again stabbed with a hypodermic syringe, as in the charged incident, approximately 6–8 times. The prosecution relies on this material to exemplify the general context against which the charged act took place. (see DPP V McMaster [2008] VSCA 102)
Intentionally Causing Serious Injury
In October 1988, the complainant and the accused moved to live in Gheringhap Street Geelong. On 17 September 1989, the complainant was at home with the accused. Their daughter Kayla had been born approximately two weeks earlier.
The complainant went to sit on the accused’s knee and he became angry as a result. This was the start of a 10 hour assault by the accused on the complainant. Firstly, the accused threw her to the ground which caused her head to hit a stereo in the room. He then dragged her back and flung her on her back. He then struck her to her head and body with punches. She recalls that the first two or three punches to her face broke her jaw. She recalls hearing a click but did not immediately feel pain in her jaw. Her face became swollen from the punches and when he allowed her to have a cigarette she was unable to draw back on it. During the assault, she was hit with a baseball bat, a vacuum cleaner pole and had vases smashed over her head. The accused also threw a glass table at her which struck her in the head. He pushed her head into the concrete walls of the house. She was kicked with steel capped boots. He told her she was nothing. He forced her head into the toilet bowl, with her head immersed in the water, preventing her from breathing. He repeated this process a number of times lifting her head from the water and then pushing it down again into the water. Each time he did this her forehead hit the bowl from which she sustained swelling to her forehead. The accused removed a serrated knife from a knife block, and put his arm across her body so that she could not move. He then heated the end of the knife with a cigarette lighter until it was glowing. He placed the knife against her neck. She could smell her flesh burning as he dragged it across her neck. This caused a cut to her neck approximately 0.5 cm deep. The complainant still has a scar on her neck from this incident. The accused also stabbed the complainant in the left shin with the plunger part of a hypodermic syringe. This broke the skin, penetrated into her leg and caused a scar on her leg. The complainant recalls that during the assault their daughter Kayla was screaming for a feed but that she could not get to her due to the assault and that the accused smashed her premade bottles which were in the fridge.
Finally, the following morning at around nine o’clock the accused left for work. Later that day the complainant was admitted to the Geelong Hospital. She stayed there for four days. The complainant still suffers consequences from her broken jaw. She states that she can only eat food in small pieces and that her jaw seizes up or locks from time to time and she is unable to move it. She sees a dentist every 18 months concerning her ongoing problems. She lost all but six teeth as a result of the assault.
The accused and the complainant subsequently moved from Gheringhap Street to a caravan park where they lived together for some time before she got the courage to leave him. She stopped over at her Uncle’s place in Werribee after she’d been to Melbourne and disclosed what had happened to her. She never went back. Their daughter Kayla was brought up by the complainant. The complainant has only seen the accused a few times since she left.
Medical Evidence
The medical records from the Geelong Hospital relating to the complainant were reviewed by Dr Nicole Reid who then made a statement to police. On page two of her statement, at page 44 of the hand –up brief, she provides details regarding the complainant’s admission to the Geelong Hospital in respect of this incident :
… admitted to the Geelong Hospital at 12:20 hours on the 18th of September 1989 with a compound ( open) fractured right mandible (jaw)that required surgical treatment with the insertion of metal bars (arch bars) to hold the jaw fragments in place….She was discharged at 11:00 hours 22nd September 1989 with follow up in the Oral Surgeon’s rooms.
Investigation
The complainant made her first statement in this matter in 2003. At that time the matter was investigated by a Sergeant Hoses who took a subsequent statement in 2004 but then retired. Another officer then took over the conduct of the file but it was not progressed for a number of years. In 2011 the complainant contacted Geelong Police and Detective Senior Constable Crossthwaite reactivated the investigation. He took further statements from the complainant in 2011, 2012 and 2013.
Interview
The accused was interviewed in South Australia by police on 21st August 2012. He denied the offending.
Guilty Plea
This matter was first listed for a filing hearing on 5 February 2013. There were a number of committal mention hearings before it was eventually listed for contested committal at the Geelong Magistrates Court on 20 September 2013. On that day, prior to the committal commencing, an offer was made by the defence to plead guilty to Intentionally Causing Serious Injury which was accepted and the facts were settled in accordance with this opening. A previous plea offer had been made to plead guilty to Recklessly Causing Serious Injury but this offer was rejected by the prosecution.
Pre-Sentence Detention
There is no pre-sentence detention in this matter.
Kevin Doyle
Counsel for the Prosecution
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