R v Curran
[2011] VSC 444
•8 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2010 00128
| THE QUEEN |
| v |
| DAVID ALLAN CURRAN |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2011 | |
DATE OF SENTENCE: | 8 September 2011 | |
CASE MAY BE CITED AS: | R v Curran | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 444 | |
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CRIME – Sentence – Murder – Dispute between accused and victim – Accused armed with loaded gun – Victim shot by accused in anger.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC and Mr B Sonnett | Office of Public Prosecutions |
| For the Accused | Mr G Casement | Robert Stary Lawyers Pty Ltd |
HIS HONOUR:
David Allan Curran. You have been found guilty, by the jury empanelled on your trial, of the murder of Vinicio Cervi on 9 March 2009 at Preston.
At about 7.50 pm on that day, you attended at the home of Mr Cervi at 7 Dalgety Street, Preston. Shortly after your arrival, a struggle took place between you and Mr Cervi in the front yard of the premises. In the course of that struggle, a semi-automatic .22 pistol was produced. Four shots were fired from that weapon. One shot penetrated Mr Cervi in the abdomen, perforating his aorta. Another of the shots struck the outside of his lower right leg. Mr Cervi died at the scene of the incident as a result of the wound to his abdomen.
In order to understand how the incident, which led to Mr Cervi’s death, occurred, it is necessary to outline, briefly, some of the background to your relationship with him. At the time of his death, Vinicio Cervi was 41 years of age. He had formerly been a very successful professional boxer, winning the Australian Heavyweight Championship during his career. You also had an involvement in boxing as a trainer. Cervi and you had been long time friends and associates. Some time before March 2009, you had leased Cervi’s house, at Dalgety Street, from him. During some of that period, Cervi had lived with his mother. When he moved out of his mother’s home, he lived in an apartment in factory premises owned by you in Coburg. Shortly before 9 March, Cervi and you agreed that you would vacate each other’s premises, and move into your own premises. The arrangement was, at least on the surface, quite amicable. At the same time, you had been endeavouring to sell your factory premises at Coburg for some time.
In accordance with that arrangement, on 9 March 2009, Mr Cervi commenced to move his belongings from your factory premises at Coburg to his home at Preston. At the same time, you moved your belongings from the Preston property to the Coburg premises. You met with Cervi at Coburg earlier in the day, and the meeting was quite cordial. However, it would appear that matters became more tense between the two of you during the course of the day. At the time at which Mr Cervi first attended at the Preston premises, you had not made substantial progress in moving your belongings from there to Coburg. Cervi was particularly upset at the state, in which he considered you had left the premises. His partner, Ms Kylie Berwick, in evidence at the trial, described the premises as then being in a complete mess. In turn, you, also, were unhappy at the state in which the factory premises had been left by Cervi and his friends, who had been residing there with him.
In the late afternoon, your premises at Coburg were visited by an estate agent and three prospective purchasers. They inspected the premises, and remained there for a period of two hours. At the conclusion of their visit, they agreed to purchase the premises from you. In order to tidy the premises for the purposes of that visit, you had moved Mr Cervi’s trailer into the street. In doing so, you caused damage to it. Cervi arrived during the inspection of the premises by the purchasers. In full view of the purchasers, he verbally abused you for the damage to his trailer. According to those who were then present at the factory, you nevertheless retained your equanimity, and undertook to repair the damage to the trailer. However, it was clear, from the manner in which he left the premises, that Cervi was particularly upset and dissatisfied with you.
On the surface, you remained calm and in a good mood throughout the remainder of the inspection of the property by the purchasers. When they left the premises at about 6.30 pm, having concluded an agreement to purchase the property from you, they described you as being in a happy and friendly frame of mind. However, it would seem that, by your demeanour at that time, you had managed to hide your true feelings regarding the conduct of Mr Cervi towards you at the factory premises in Coburg. At 6.42 pm, you sent a text message to a friend, Timothy Bell. I interpolate that Mr Bell is also a professional boxer and you had acted, in a manner, as his manager. Mr Bell had successfully defended his boxing title on the previous Friday evening. The text, which you sent to Bell, was in the following terms:
“Hi mate, I might have a full on blue with Vinnie and a would be mate, me his tonight. There been treating me like a goose. I will go them on my own. But I need a chop out because I am go them tonight.”
It was common ground, at your trial, that the term “chop out” means help or assistance. While there was debate as to the intention which you had in sending that text, it is clear, at the very least, that in that text you were expressing substantially more irritation in relation to Mr Cervi’s conduct than you had demonstrated, shortly before then, at the factory premises at Coburg.
Having received that text message, Mr Bell contacted you, and endeavoured to mediate between you and Mr Cervi. In his evidence at the trial, Mr Bell stated that you did not express any anger or irritation to him on the telephone. From what you told him, he was satisfied that there would not be a confrontation between you and Mr Cervi. He then made telephone contact with Cervi, and gained his assurance that he would not confront you on your arrival at the premises.
However, tragically, matters were to prove otherwise.
At your trial, there was a dispute as to what occurred after your arrival at the premises at Dalgety Street, Preston. There was no witness who observed the shots being fired during your struggle with Mr Cervi. Your former girlfriend, Janette Allan, who was with you on that day, remained outside the premises in the street, and her view as to what took place was obstructed by the front fence to the premises. Kylie Berwick, and her 8 year old son Blake, were inside the house at Dalgety Street. They both saw you arrive, and they both saw a struggle erupt between you and Cervi very shortly after your arrival.
As a result of observing that struggle, Ms Berwick hid Blake, first in the bathroom, and then in the bedroom, of the premises. In her evidence, she stated that, on two occasions, she stole quick glimpses of what was occurring outside from the front door. On one occasion, shortly after your arrival, she said that she saw you and Mr Cervi on the ground of the front yard, with Cervi over the top of you, restraining you, while you were holding the weapon in your hand. She then went back inside and heard a shot. She said that she looked out again, and saw you, standing in about the same position, pointing the gun at shoulder height, towards the truck, which was parked at the front entrance of the property. She could not see Cervi. Thereafter, she said that she went back inside the bedroom with her son Blake, and heard further shots.
I have significant reservations about the aspects of Ms Berwick’s evidence, in which she claimed to have actually seen those two parts of the incident, which occurred between yourself and Mr Cervi. Ms Berwick was clearly very emotionally involved in the evidence which she gave. I understand, and indeed sympathise, that she felt very deeply for Vinicio Cervi. However, those feelings caused her to harbour a bitter hatred towards you, which, I consider, affected her evidence as to what she claimed to have observed take place in the front yard of the premises at Preston. That evidence does not fit with the objective facts. Nor does it fit with her evidence, and the evidence of her son Blake, that throughout the incident, she remained with Blake, caring for him and reassuring him.
In cross-examination, Ms Berwick was aggressive and uncooperative. She admitted that she had told untruths, and indeed, at some stages, she was cavalier in doing so, seemingly admitting to telling lies when, on a proper analysis, she may not have done so. As a result of those matters, I do not consider that Kylie Berwick was a sufficiently reliable witness, in respect of her evidence as to the two times in which she saw you holding the gun in the front yard.
On the other hand, I consider that Blake Berwick was an honest and sincere witness. While the evidence which he gave was limited, it was truthful and, I consider, accurate. He was a courageous little boy, who should be commended for the way in which he handled himself, both in the taped interview with the police officer, which comprised his evidence in chief, and in cross-examination, on audio visual link, in the trial.
The absence of any eye witness, as to how the fatal shot was fired which caused the death of Mr Cervi, leaves gaps in the evidence. It is important for me not to speculate in drawing conclusions for the purpose of your sentence. However, in my view, there are sufficient objective facts to enable me to draw appropriate conclusions, for the purposes of determining your culpability for the offence, in respect of which you have been found guilty.
First, I am satisfied beyond reasonable doubt that, when you attended at the premises, you immediately verbally confronted Vinicio Cervi. Indeed, the evidence of Kylie Berwick that, almost immediately upon your arrival, you said to him “What’s your form”, and added an expletive, was not contested in cross-examination[t1] . Blake Berwick expressed, what you said to Vinicio, in more mild terms, but his evidence also demonstrated that, on your arrival, you were dissatisfied with Mr Cervi’s conduct towards you during the day. That dissatisfaction was, I consider, the cause of your text message to Timothy Bell. It is clear that you not only expected, but indeed intended, to confront Mr Cervi, on your arrival at Dalgety Street. While I accept that you also attended at those premises for legitimate purposes, namely, in order to move more of your belongings back to Coburg, nevertheless I am satisfied, beyond reasonable doubt, that you also intended, on your arrival, to verbally confront and reproach Cervi, in the strongest terms, for his conduct towards you at the factory premises in Coburg.
That proposition is reinforced by your conduct shortly after the fatal shooting of Mr Cervi. At that time, the evidence demonstrates that you were in an extremely irate frame of mind. When a friend of Mr Cervi, Paul Bassi, arrived, you angrily confronted him, and threatened violence towards him. At the same time, your girlfriend, Janette Allan, was telephoning triple 0, seeking assistance for Mr Cervi. Your voice can be heard, on the recording of that telephone call, angrily confronting Bassi. I am satisfied that your anger then was a residue of the anger, which you had harboured towards Cervi on arriving at his premises, and during the ensuing struggle with him.
There is no direct evidence as to whom the weapon, which was produced in the struggle, belonged. Nor is there any direct evidence as to how it came to be involved in the struggle. I have given careful consideration as to whether I can, for the purposes of sentencing you, form any valid conclusions as to those matters. Having considered, and reviewed, the evidence given at your trial, I am satisfied, beyond reasonable doubt, that it was you who brought the weapon to the Preston premises, when you attended there that evening. I also consider that the jury would have been satisfied beyond reasonable doubt of that fact.
There are a number of individual pieces of evidence which, in combination, in my view, lead to that conclusion. First, there is the angry frame of mind with which you intended to attend the premises. I am not satisfied that you intended, on attending the premises, to inflict violence on Mr Cervi. However, I am satisfied that you anticipated that, in view of your irate frame of mind, a physical altercation might ensue between yourself and Cervi, on your arrival at the Preston premises. It was for that purpose that you had sought the assistance of Tim Bell. In my view, you had asked for his assistance, not in order to inflict violence on Mr Cervi, but, rather, to assist you, should violence erupt between you and Cervi. When Mr Bell declined your request to attend, you would have felt quite vulnerable. You were no physical match for Cervi, who, after his retirement from professional boxing, had kept in top physical condition. He was a large, strong and muscular man. You knew that if violence were to erupt between you and Cervi, he would easily get the better of you.
Secondly, and importantly, after the incident, you handed the weapon to Janette Allan, expressly telling her not to hide it. That conduct by you was, in my view, a strong indication that the weapon was yours, and that you had brought it to the premises. It is unlikely that you would have given the gun to Ms Allan, if the gun was not yours, and if it was not produced by you during your struggle with Mr Cervi.
Thirdly, there is no evidence that Mr Cervi had the weapon upon your arrival at Dalgety Street. At that time, he was in the company of Kylie and Blake Berwick. He was only wearing shorts. Neither of them saw him have the weapon. There was no reason for Mr Cervi to arm himself. Tim Bell had assured him that you were not visiting him with any violent intent. Even if he had wished to physically confront you, Mr Cervi would have well known that he did not need a weapon with which to overcome you. Indeed, it is doubtful that Cervi would have had time to arm himself with a firearm, after receiving Tim Bell’s phone call. Furthermore, if Mr Cervi did have a firearm, it is difficult to understand how you could have wrestled the firearm off him during the struggle, which ensued between you and Cervi, or how, otherwise, the weapon would have been in a position to inflict the two wounds which he received, given Mr Cervi’s significantly superior strength to yours.
Fourthly, shortly after the police arrived at the Dalgety Street premises, you gave brief accounts to Detective Senior Constable Hanna and Sergeant Sheahan, on separate occasions, in which you stated that, in the course of a struggle between yourself and Mr Cervi, the weapon discharged. After you were conveyed to the Preston Police Station, you gave a separate account of the incident to Detective Senior Constable Di Camillo. In that account, you stated, in a little more detail, that Mr Cervi was punching you to the face, that you and he were fighting over a firearm, and that you heard gunshots go off. In none of those three accounts did you say to the police that, either before, or in the course of, the struggle between Mr Cervi and yourself, Cervi produced the weapon. Nor did you give any other account as to how the weapon happened to be produced in the course of the struggle between yourself and Mr Cervi. In light of the other three factors, to which I have just referred, your failure to explain how the weapon was produced, when you had the opportunity to do so, was a further important piece of evidence supporting the conclusion that it was you who produced the weapon either before or in the course of the struggle between yourself and Cervi.
As I stated, all of those facts, taken together, satisfy me, beyond reasonable doubt, that it was you who brought the weapon to the Dalgety Street premises on that night.
That said, I am satisfied that you did not attend the premises with the intention of shooting Mr Cervi, or using the weapon against him. Rather, as I have stated, I am satisfied that you took the weapon with you, because you felt vulnerable in the absence of assistance from Tim Bell, and because you felt the need to have such a weapon with you.
Returning to the commencement of the incident, as I stated, I am satisfied that on your arrival at the front door of the premises at Dalgety Street, you verbally abused and rebuked Mr Cervi. Almost immediately, a physical struggle took place between the two of you. It is clear from the evidence that, in the course of that struggle, you both moved across the front lawn to near where Mr Cervi’s truck was parked, at the front entrance of the premises. In that area, four shots were fired from the weapon. The evidence of the neighbours is that those four shots were fired in two sequences. In my view, the more cogent evidence is that three shots were fired in one volley, and then, after a short pause, a fourth shot was fired.
There is no evidence as to the order in which Mr Cervi received the two wounds, which I have already described. It is clear, from the evidence of Mr Glaser and Dr Dodd, that the shot, which wounded Mr Cervi in the leg, was fired at a distance of at least 70 centimetres from the leg. The position, and angle of entry, of that bullet wound makes it clear that Cervi could not have been involved in a struggle for the weapon at that time. Further, it would appear most unlikely that he would have been standing at that time. On the other hand, the fatal shot was discharged at a time at which the weapon was no more than 30 centimetres, and more likely only about 10 centimetres, from the abdomen of Mr Cervi. The principal issue at your trial was as to whether you had fired that shot, and, if so, as to whether you had done so accidentally in the course of the struggle between yourself and Cervi. By its verdict, the jury was satisfied, beyond reasonable doubt, that you deliberately fired the shot, which fatally wounded Mr Cervi.
As a result of the foregoing, it seems that, after the struggle, which broke out between yourself and Mr Cervi, you managed to produce the weapon. In the course of that struggle, you and Cervi moved across the front yard of the premises. You produced the weapon. Four shots were fired from it. From the foregoing, and from the evidence in the trial, and consistent with the jury’s verdict, I am satisfied, beyond reasonable doubt, that you deliberately fired the two shots which struck Mr Cervi.
The other factual issue, which was relevant at trial, and which may be relevant to your sentence, concerns the behaviour of Mr Cervi shortly before and during the struggle. It seems clear, on the evidence of the witnesses, that Mr Cervi, during the day, became very angry with you, both in relation to the state in which you had apparently left the Preston premises, and as to the damage which you had caused to his trailer. At one stage, his anger towards you was such that he recklessly threw his own belongings off his truck, damaging them, before Ms Berwick intervened.
During the previous weekend, Mr Cervi and Ms Berwick had been consistently taking illicit substances, including methamphetamines. Mr Cervi had taken some of that substance in the morning. Dr Drummer, the toxicologist, gave evidence as to the level of methamphetamine in the cavity blood taken at the post-mortem. All of that evidence satisfies me that, at the time at which you attended at Mr Cervi’s premises, he was a willing participant in the fight, which took place between him and you.
Indeed, on the evidence of Blake Berwick and Kylie Berwick, very shortly after you verbally abused him at the front door, he became involved in a physical fight with you. The fact that, during the struggle, the two of you moved across the lawn towards the truck, indicates that Mr Cervi may, on a number of occasions, have been getting the better of you. Indeed, that would not be surprising, given the disparity in strength and size between yourself and Cervi. Nevertheless, the jury was satisfied, beyond reasonable doubt, that, at the time at which the fatal shot was fired, you were not acting in self-defence. Indeed, on the evidence produced at your trial, there was very little evidence, at all, that, at the critical time, you were acting in self-defence. Rather, I am satisfied that, during the struggle, the anger, which you felt to Mr Cervi at that time, caused you to produce the weapon, and to fire the shots, which inflicted both the fatal wound to his abdomen, and the other wound to his right leg.
The offence of murder, for which you have been convicted, is the most serious offence known to our criminal justice system. The maximum sentence for the offence is life imprisonment. The offence involves the intentional taking of the life of another human being. In this case, the principal victim of your offence was Vinicio Cervi. At the time of his death, he was 41 years of age. By then, he had enjoyed a successful career as a boxer, and had established himself in his trade as a carpenter. I have read the victim impact statements of his mother, his two brothers, his sister, his two sisters in law, his partner Kylie Berwick, and of his life long friend, Nick Arvanatakis. It is clear that Vinicio Cervi was a much loved member of his family, who enjoyed life to its fullest. He was an important and major part of the lives of those who were close and dear to him. Vinicio Cervi was the principal victim of your actions. However, it must not be forgotten that there are others, who loved him very much, and whose lives still continue to be deeply affected by his loss, and who are still coming to terms with the profound grief inflicted on them by your criminal actions. They are each, in every respect, real victims of your crime.
In respect of your personal history, it is relevant that you do have a number of previous convictions. In particular, between 1984 and 2000, you came before the courts on fourteen separate occasions. A number of the offences, for which you were convicted, involved road traffic offences, or what might be regarded as “street” offences, which are not particularly relevant for present purposes. However, you do have four previous convictions for crimes involving unlawful assault, and a previous conviction for intentionally threatening serious injury. On the last occasion on which you were before the court, you were sentenced by the County Court, on 18 April 2000, to a term of imprisonment of two years and six months, with a minimum non-parole period of 12 months, for the offence of aggravated burglary and theft. That offence was committed by you, in company with another, in August 1999.
Those previous convictions do not stand to your credit, when I consider the sentence, which I am to impose on you for the current offence. However, it is relevant that, since your release from imprisonment in 2001, you had not been in any trouble until this offence occurred in March 2009. It is clear, from matters to which I shall shortly refer, that, following your release from jail in 2001, you had embarked on a significant path of reform in your life.
You were born in January 1964, and are the youngest of six children. You come from a close family, and were well supported, throughout the trial, by your siblings.
You completed your education at Year 10 level. From that time, you have been in regular employment throughout your working life. You first gained employment in a panel beating business. At the age of 23 years, you established and conducted your own panel beating business in Heidelberg for a period of seven years. Subsequently, you worked in property maintenance in the Flowerdale area. In 2000, you purchased the factory premises in Coburg. Initially, you conducted a panel beating business at those premises. Subsequently, you converted it into a gymnasium.
You had always had a keen interest in boxing. Until your early 20s, you participated in that sport yourself. However, as a result of injury sustained by you in a motor vehicle accident at the age of 20, you were no longer able to actively participate in boxing. After you established the Coburg factory, you became acquainted with Tim Bell. For some time, Mr Bell used your gymnasium for the purposes of training. You acted for him, as a de facto manager or trainer, and, indeed, you assisted him in that capacity in his successful title defence, which took place on the Friday evening before the events with which this case is concerned.
For some time until your conviction for aggravated burglary in 2000, you had battled an alcohol problem. While that problem did not affect your capacity to undertake full time employment, nevertheless it had a marked effect on your personal life. It also played some role in your involvement in a number of the offences, which had led to your previous convictions. In addition, from time to time, you suffered from episodic depression. The first bout of depression occurred when you sustained injuries to your arm and wrist, at the age of 20, which cut short your boxing career. It does not appear, however, that you have received any significant treatment for depression. The report of Ms Lechner, the psychologist who has recently examined you, indicates that you are suffering from mild depression, which is reactive to your present circumstances. She does not, however, indicate that you are in need of any particular assistance in that regard.
During your life, you have had a number of relationships. In the early 1990s, you had a relationship with Ms Fiona Jordan, with whom you had a daughter, Olivia, who is now aged 20 years. Both Fiona and Olivia Jordan gave evidence before me, to which I shall shortly refer. You then had a second relationship with another woman, by whom you have had a son. They both now live in the United Kingdom. In 1994, you married Kim Shackleton, and you have a son, Darcy, by her. Ms Shackleton provided a reference on your behalf, and she was in court to support you during your plea. Your marriage to Ms Shackleton ended in about 1997. Subsequently, you had a relationship with Janette Allan between 2001 and 2008. Ms Allan is a fitness trainer, and she used your gym for that purpose. After your relationship with Ms Allan ceased, you continued to have a friendly relationship with her.
After your relationship with Fiona Jordan ended in the early 1990s, you ceased to have any significant contact with her, or Olivia, for some time. However, following your release from custody in 2001, you resumed contact with them. In particular, you took significant responsibility for assisting Ms Jordan with the upbringing of Olivia. You regularly picked her up from school, and took an interest in her life. In her evidence on your plea, Fiona Jordan described how, following your release from prison, you had significantly matured. She said that you were making a very conscientious effort to try to improve yourself, particularly in your personal relationships.
In their evidence before me, and in character references which they each prepared for the purposes of your plea, both Fiona and your daughter Olivia Jordan described, in some detail, the steps to which you have gone throughout your life to assist other people, who you perceive to be in need. It is clear from what they described to me that you are a man who, in many respects, is particularly generous in spirit. You provided selfless assistance to a friend, who had two young children, and who had the misfortune to sustain a brain injury in a motor vehicle accident. You have provided accommodation to another friend, who had fallen on hard times and was homeless. In addition, you assisted friends whose property and home were burnt out in the Black Saturday fires. On another occasion, you assisted a troubled youngster, by training her in your gymnasium. Indeed, only shortly before your offence in this case, you were endeavouring to assist Vinicio Cervi with the problems, which he was experiencing with his finances.
Alongside that, you have also, in recent years, been a most important support to your son Darcy. It is clear, both from the evidence of Olivia Jordan, and also from evidence which was put before the court on a bail application made on your behalf in December 2010, that Darcy is a troubled youth. At your bail application, Ms Shackleton described how, before your arrest in 2009, you had taken Darcy under control. After your arrest in March 2009, Darcy’s behaviour became particularly erratic and troublesome. Olivia Jordan, at your plea, described how, after you were released on bail in December 2010, Darcy again improved, so that he was able to keep his employment and stay out of trouble. However, following your conviction on 23 June, Darcy has again deteriorated, and it would appear, sadly, to be headed for significant trouble.
Another aspect of your willingness and capacity to help other people is evident from your conduct, while you have been in custody at the Melbourne Assessment Prison since March 2009. Before your release on bail in December 2010, you became a peer educator. In that capacity you were involved in assisting and counselling younger inmates. Since your conviction in this case, you have completed a ten hour training program, and have taken on the role of a peer listener. That role involves you listening to other prisoners’ issues and concerns, and providing support and advice to them. It also requires you to assist with the orientation of new prisoners. The report of the senior psychologist of the Melbourne Assessment Prison indicates that you have demonstrated enthusiasm and commitment to your role, and that you have responded positively to feedback provided to you in that respect.
At your trial, you pleaded not guilty, and you have, since your conviction, maintained your innocence. Those factors, of course, do not count against you in terms of your sentence. The report of Ms Lechner states that, nevertheless, you do express grief at the loss of your friend, Vinicio Cervi, and that you do exhibit appropriate empathy for his family. In their evidence before me, both Olivia and Fiona Jordan were, perhaps understandably, not asked to address that particular issue. However, as I already stated, your background history satisfies me that you do have the capacity to feel for the suffering of others, and to be concerned about it. Thus, I am satisfied, on the balance of probabilities, that you do experience some grief at the loss of Vinicio Cervi, and that you do feel some sympathy for his family.
The matters of your background history are relevant in a number of respects to the determination of your sentence. First, it stands to your credit that, throughout your life, you have been in gainful employment. That achievement is even more creditable given the fact that you do not have any formal education, and have not completed an apprenticeship. Secondly, notwithstanding your substantial number of criminal convictions between the ages of 19 years and 36 years of age, after your last term of imprisonment, you embarked on a real path of reform. Not only did you stay out of trouble during that period, but you also took responsibility for your two children. Thirdly, you have demonstrated a number of personal attributes, and in particular a generosity of spirit in your life. Your actions in helping others is a circumstance standing to your credit in determining your sentence. In addition it weighs in favour of the conclusion that you do have good prospects of rehabilitation. Fourthly, you have undertaken the role of peer educator and peer listener since you have been in custody. By doing so, you have manifested an intention of using your term of imprisonment in a productive and positive way, and fortify my conclusion that you have good prospects of rehabilitation. Fifthly, while I do not regard the circumstances relating to Darcy’s present situation as an exceptional circumstance, which would justify me imposing a lower sentence than otherwise, nevertheless, it is clear that you are, and will remain, conscious of the fact that, while you are in custody, you are not able to exercise the beneficial role, which you had undertaken in respect of Darcy’s life while you were in the community. As such, I would expect that Darcy’s situation in the following years may well prove to be a source of added anxiety for you, and will thus increase the burden which a lengthy term of imprisonment would otherwise impose on you.
In determining your sentence, it is important for me to weigh each of those mitigating factors against the gravity of your offending. As I stated, you have been convicted for the most serious offence known to our criminal law. By your actions, you have intentionally taken the life of another human being. The tragedy of the case is that it stemmed from a mutual sense of grievance between yourself and your friend Vinicio, the origins of which were totally out of proportion to the appalling events which culminated in Vinicio’s death. As I stated, I am satisfied that, when you attended at the premises at Dalgety Street, you intended to verbally confront Vinicio. I am not satisfied that you there and then intended to inflict violence on him. However, as I have already indicated, I am satisfied, beyond reasonable doubt, that you did take the gun with you to those premises, fully loaded, in the expectation that a violent confrontation may develop between yourself and Vinicio. When that confrontation occurred, you shot Vinicio at close range in anger, with the intention of either killing him or causing him really serious injury.
In determining your sentence, it is necessary that the sentence which I impose upon you be such as to adequately express the condemnation by this Court, and the community, of your wrongdoing, and to vindicate the sanctity of human life, which is the most precious value in our community. It is also important that the sentence, which I am to impose upon you, be of sufficient severity to serve as a lesson to others, and to constitute a message to the community that persons, who contemplate indulging in the type of violent conduct, for which you have been convicted, should expect to be deprived of their liberty within society for a substantial period of time. It is also important that the sentence should be sufficient in order to ensure that you personally are deterred from any further wrongdoing.
Taking those matters into account, and bearing in mind the mitigating circumstances to which I have referred, I sentence you as follows. I sentence you to nineteen years’ imprisonment. I fix a minimum non-parole period of fifteen years. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 725 days be reckoned as served under the sentence, and I shall cause that declaration to be noted in the records of the court.
[t1]My recollection was that Casement put to Berwick to XXN that she said “Please fuck off” before Curran said anything.
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