R v Curran - [2011] VSC 444

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2010 00128

THE QUEEN

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…

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.

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Details

Case: [2011] VSC 444
Decision Date: 8 September 2011

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Curran was heard, where the defendant, Curran, was charged with murder. The dispute arose from an altercation between Curran and the victim, during which Curran shot the victim with a loaded firearm. The victim's death was directly attributable to this act. The court was tasked with determining the appropriate sentence for Curran, given the circumstances of the crime and the legal principles governing sentencing for murder.

The primary legal issues for the court to address were the nature and severity of the crime, the circumstances surrounding the offence, and the appropriate penalty that would serve justice and deterrence. Specifically, the court needed to assess the degree of premeditation, the level of violence, and the moral culpability of Curran. Additionally, the court had to consider the principles of proportionality and individualisation in sentencing, ensuring that the sentence reflected the unique aspects of the crime and the offender.

The court found that the murder was committed with significant premeditation and in a highly violent manner, as Curran was armed and shot the victim in a fit of anger. The court emphasised the gravity of taking a human life and the need for a sentence that would adequately reflect the severity of the crime. In determining the sentence, the court took into account the absence of any mitigating factors and the necessity of deterrence and denunciation. Ultimately, the court imposed a life sentence with a non-parole period of 25 years, considering this to be a just and proportionate response to the crime committed by Curran.

No further orders were made beyond the sentencing.

Orders