R v Brunner
[2005] VSC 74
•23 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1491 of 2004
| THE QUEEN |
| v |
| KURT JOSEPH BRUNNER |
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JUDGE: | WHELAN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 March 2005 | |
DATE OF SENTENCE: | 23 March 2005 | |
CASE MAY BE CITED AS: | R v Brunner | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 74 | |
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CRIMINAL LAW – Sentence – Accessory to manslaughter – Unlawful and dangerous act – Accessory droved injured deceased to remote location and left him.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Gilligan | Solicitor for the Office of Public Prosecutions |
| For the Accused Heriban | Mr M.A. Fullerton | Tyler Tipping and Woods |
| For the Accused Brunner | Mr J.D. Montgomery | Robert Davis |
HIS HONOUR:
Kurt Joseph Brunner, on 4 March 2005 you pleaded guilty to a charge that, on 23 June 2003, knowing or believing Michael Stephen Heriban to be guilty of a serious offence, namely manslaughter, without lawful authority or excuse, you did act for the purpose of impeding the apprehension, prosecution, conviction or punishment of Michael Stephen Heriban. The maximum penalty for the offence to which you have pleaded guilty is 5 years’ imprisonment.
You were arraigned together with Michael Stephen Heriban. Mr Heriban was charged with manslaughter. He also pleaded guilty. I heard both pleas on 4 March 2005.
The Crown opened the matter against you and your co-accused together. I have today sentenced your co-accused Michael Stephen Heriban and have set out already the circumstances as opened by the Crown. For present purposes it is sufficient to record that you went with Mr Heriban and his brother to his house in the early hours of Monday, 23 June 2003 after Mr Heriban had discovered the deceased committing a burglary there. Mr Heriban confronted the deceased and punched him in the face causing him to fall. Mr Heriban subsequently punched and kicked the deceased in a further attack. The post-mortem examination indicates that the deceased is likely to have died as a result of a head injury caused by the fall. You assisted Mr Heriban in placing the deceased in his car. You then drove the car to a remote bush track where you drove it into a tree. You left the deceased in the car.
You did not report the matter to police at the time, but you did assist police in their enquiries later. You cooperated with the police in enabling them to covertly record a conversation between you and Mr Heriban.
You were originally charged with murder. The prosecutor conceded that you had been prepared to plead guilty to a charge based on “some form of assisting”.
In my sentence earlier today of your co-accused, I referred to the deceased’s background and to the victim impact statements that have been filed. I will not repeat what I said then, save to say that the deceased’s family has been tragically affected by his death.
On your plea your counsel, Mr Montgomery, put forward the following matters in mitigation:
1.You were not charged until 16 December 2003. You had experienced considerable delay both in being charged and in being tried.
2.You had always been prepared to plead guilty to an accessory offence, and you had pleaded guilty.
3.You had been of assistance to police, particularly in covertly recording a conversation with your co-accused. Your counsel indicated that this would involve some stigma attaching to you in the future.
4. At the time of the offence you were affected by alcohol.
Of the matters put, I accept that your willingness to plead guilty and your plea of guilty, and your assistance to police are matters to be taken into account in mitigation. I do not think the issue of delay is of significance. Whilst your inebriation might explain your conduct that night, it does not in my view reduce your culpability.
You were a friend of the deceased and had in fact been with him through most of the Sunday, 22 June 2003. He had dropped you at your co-accused’s brother’s house. He then proceeded to your co-accused’s house which he intended to burgle.
You have extensive prior convictions for dishonesty and cannabis related offences. All of your prior convictions, with the exception of one, have been in the Magistrates’ Court. You appeared in the County Court in May 1986 charged with robbery and burglary and were sentenced to a total effective sentence of three and a half years. That conviction also resulted in breach of your parole on earlier matters. You also have a history of offences involving assault. In 1983 you were convicted at the Magistrates’ Court at Moe on two counts of indecent assault. In April 1995 you were convicted at the Magistrates’ Court at Moe on a charge of assault with a weapon. In January 1998 you were convicted of a number of charges at the Magistrates’ Court at Moe including resisting a police officer in the execution of his duty. On 8 August 2001 you were convicted at the Magistrates’ Court at Moe of a number of charges including assaulting police, resisting a police officer in the execution of his duty, two counts of unlawful assault, and one count of possessing a controlled weapon without lawful excuse.
Your counsel submitted on your plea that the conduct in question on this night was “out of the norm”. It does not seem to me that that was the case. It must be said, however, that you played no direct part in the actual assault. Your participation in the relevant events was confined to driving the deceased’s vehicle and driving it into a tree on a remote bush track. I asked your counsel what the explanation was for you driving the deceased’s vehicle into a tree. He said that his instructions were that you did not really know what had happened and that you were drunk.
You are now 41 years of age. You were one of four children. You had a younger brother who died tragically of cancer at the age of 13. You left school at the age of 16 and worked at various occupations in the LaTrobe Valley, in Melbourne and in Queensland. You have been unemployed since 1992. I was told that you have been on a disability pension since you had an accident in 2003. Both your parents are dead. You have had a lengthy relationship with your de-facto wife, Tina Culvert. I was told that the two of you have experienced tragedy as a result of the cot death of two children.
Your counsel submitted that you did not have any idea on the night in question that the deceased had been seriously injured. He referred me to statements to that effect made by you to police. In all the circumstances I accept that that was the position. It is to some extent confirmed by your co-accused’s conduct, to which I referred in his sentence, whereby he returned to the vehicle the next day seeking to recover more of his property.
On your plea your counsel submitted that the time you had already served was a sufficient minimum for this offence. Counsel for the Crown indicated that he did not disagree with that submission.
Bearing in mind the seriousness of the offence and your very poor previous criminal record, I consider that a sentence of imprisonment must be imposed.
I sentence you to nine (9) months’ imprisonment as an accessory to the manslaughter of John Paravinic.[1] I declare, pursuant to s 18(4) of the Sentencing Act, that you have already served a period of 282 days in custody.
[1]I originally announced a sentence of 12 months with a non-parole period of 9 months. After my attention was directed to s 11(3) of the Sentencing Act 1991, before the Return of Prisoners Convicted was signed, and after hearing submissions from the Crown and the accused, I amended the sentence under s 104A of the Sentencing Act to 9 months’ imprisonment.
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