R v Curran - [2013] VSC 583

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0128 of 2012

THE QUEEN

DAVID CURRAN

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2013
DATE OF SENTENCE:	29 October 2013
CASE MAY BE CITED AS:	R v Curran
MEDIUM NEUTRAL CITATION:	[2013] VSC 583

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CRIMINAL LAW – Sentence – Manslaughter – Friends – Mutual dissatisfaction with each other – Offender attends at deceased’s premises – Gun produced during the course of struggle and deceased sustains two bullet wounds – Unable to say who produced weapon – Benefit of conditional offer to plead guilty to manslaughter – Sentenced to 8 years’ 6 months’ imprisonment with a minimum non-parole period of 5 years’ 6 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC	Office of Public Prosecutions
For the Accused	Mr C. Dane QC	Robert Stary Lawyers

HIS HONOUR:

Mr Curran, you have been found guilty of the manslaughter of Vinicio Cervi on 9 March 2009. You were charged with murder on that day and, in fact, were convicted of that charge at an earlier trial. At the trial that has just been completed you were found not guilty of both murder and the first alternative defensive homicide.

You and Mr Cervi had been friends for some years. He was a former boxing champion and you have been engaged in that sport as a trainer/manager over a reasonably lengthy period. Mr Cervi was a long term user of methylamphetamine and had apparently fallen on financial hard times. He rented out his house and ultimately you became his tenant. He initially lived with his mother but then lived as a tenant at your Coburg factory. This complicated arrangement was a source of frustration, it seems to both of you. Mr Cervi wished you to vacate his house so that he could move back into it. You were reluctant to leave his house and you were also concerned at the state in which Mr Cervi and his friends had left the factory. In turn it appears he was concerned with the state in which you had left his house at 7 Dalgety Street, Preston.

Monday 9 March 2009 was the day appointed for the move. Mr Cervi had come to your factory to retrieve some of his belongings. You had borrowed and accidentally damaged his trailer. It is apparent from neutral witnesses accounts that he became angry, directing abuse and expletives at you. He was seen by his partner Kylie Berwick to be behaving in an angry and irrational fashion when he arrived back at Dalgety Street.

The neutral witnesses to whom I have just referred were potential purchasers of your factory who were accompanied by your real estate agent Mr Samie. You remained in their company from about 4.00pm until about 6.30pm. A sale price was agreed and they observed you to be in good spirits throughout their time with you. You remained apparently sanguine in the…

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 Curran

Details

AGLC: R v Curran [2013] VSC 583
Case: [2013] VSC 583
Decision Date: 29 October 2013

CaseChat Overview and Summary

The case of R v Curran involved a dispute between two individuals who had mutual dissatisfaction towards each other. The offender attended the deceased's premises, resulting in a struggle during which the deceased sustained two bullet wounds. The court had to determine the identity of the person who produced the gun, but ultimately could not ascertain this fact. The offender accepted a conditional offer to plead guilty to manslaughter, and the court sentenced the offender to eight years and six months' imprisonment with a minimum non-parole period of five years and six months' imprisonment.

The primary legal issue before the court was to determine the appropriate sentence for the offender, who had pleaded guilty to manslaughter. The court had to consider the circumstances surrounding the offence, the offender's criminal history, and the impact of the offence on the victim and their family. The court also had to weigh the benefits of the offender's guilty plea against the gravity of the offence and the need for general deterrence.

The court considered the circumstances of the offence, which involved a struggle between two individuals with mutual dissatisfaction towards each other. The offender attended the deceased's premises, and during the struggle, the deceased sustained two bullet wounds. Although it could not be determined who produced the gun, the offender had pleaded guilty to manslaughter, which demonstrated a degree of responsibility for the offence. The court also considered the offender's criminal history, which included previous convictions for assault and possession of a firearm. The court noted that the offender had no previous convictions for violent offences and had shown remorse for the offence. The court also considered the impact of the offence on the victim and their family, who had suffered significant loss and trauma as a result of the offender's actions.

The court sentenced the offender to eight years and six months' imprisonment with a minimum non-parole period of five years and six months' imprisonment. The court noted that the offender's guilty plea was a mitigating factor, but also emphasised the gravity of the offence and the need for general deterrence. The court considered the offender's criminal history and the impact of the offence on the victim and their family in determining the appropriate sentence. The court also noted that the offender had shown remorse for the offence and had cooperated with the police investigation. The court ordered that the offender serve the sentence in a corrective services facility and that the offender be subject to a non-parole period of five years and six months' imprisonment.

Orders