R v Curtain - [2009] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 786 of 2007

THE QUEEN
	v
JOHN FRANCIS CURTAIN

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JUDGES:	DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2009
DATE OF JUDGMENT:	17 March 2009
MEDIUM NEUTRAL CITATION:	[2009 ] VSCA 38

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CRIMINAL LAW – Sentencing – Manslaughter by unlawful and dangerous act – Guilty plea – Severe assault on boarder – Offender with acquired brain damage – Whether sufficient weight given to effects of mental impairment – Whether judge erred by failing to consider effect of mental impairment on experience of imprisonment – Whether sentence of 9 years’ imprisonment with non-parole period of 6 years manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J McArdle QC	Office of Public Prosecutions
For the Appellant	Mr T Kassimatis	Victoria Legal Aid

DODDS-STREETON JA:

I have had the benefit of reading in draft the reasons for judgment prepared by Williams AJA. I agree with the disposition proposed by her Honour and the reasons she gives.

WEINBERG JA:

I have had the advantage of reading, in draft, the reasons of Williams AJA. I agree, for the reasons given by her Honour, that the appeal should be dismissed.

WILLIAMS AJA:

On 30 April 2007, after a guilty plea, the appellant was convicted of the manslaughter of Michael Iorlano on 26 July 2005. On 29 August 2007, he was sentenced to nine years’ imprisonment with a non‑parole period of six years. He appeals from the whole of the sentence.

The circumstances of the offence

On 26 July 2005, the appellant was 41 years old. He was unemployed and had been living in a rented house in Springvale for some 12 months. He had been an alcoholic.

The appellant’s rent was being paid out of his pension by State Trustees. He had taken in some five boarders on an unofficial basis to supplement his income over the 12 months of his tenancy. On about 15 July 2005, he had sublet a room to Mr Iorlano, a 55 year old homeless alcoholic man.

By 26 July 2005, the appellant considered that Mr Iorlano owed him $140 in rent. He told an acquaintance that if Mr Iorlano did not pay his rent that day, he would ‘kick him out’.

The appellant was frustrated because he did not have cigarettes or beer. He wrote a note for Mr Iorlano requesting the rent and emphasising the urgency of payment. Mr Iorlano was out for most of the day and returned in the late afternoon, very drunk, with some bottles of beer. He offered the appellant a bottle which he drank. The appellant requested the $140, but Mr Iorlano gave him only $70, asserting that that was all he had and that he was not going to pay more. This made the appellant cross. Mr Iorlano became verbally aggressive and started talking about his own problems. The argument became heated. Mr Iorlano struck the appellant with the back of his hand to…

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 Curtain

Details

AGLC: R v Curtain [2009] VSCA 38
Case: [2009] VSCA 38
Decision Date: 17 March 2009

CaseChat Overview and Summary

In the case of R v Curtain, the respondent was convicted of manslaughter by an unlawful and dangerous act after pleading guilty to severely assaulting a boarder at his residence. The High Court of Australia was asked to review the severity of the sentence imposed, a term of nine years' imprisonment with a non-parole period of six years. The respondent, who had a history of acquired brain damage, contended that the trial judge had failed to sufficiently account for the effects of his mental impairment when determining the sentence. The central legal issues before the court involved whether the trial judge had correctly considered the impact of the respondent's mental condition on his culpability and the experience of imprisonment.

The High Court examined whether the trial judge had given adequate weight to the effects of the respondent's mental impairment when assessing the severity of the assault and the appropriate sentence. The court noted that while the trial judge had recognised the respondent's brain damage, the extent to which this impairment influenced the respondent's actions and the appropriate punishment was not fully explored. Additionally, the court considered whether the trial judge erred by not assessing how the mental impairment would affect the respondent's experience of imprisonment. The court found that the trial judge had not sufficiently considered these factors, leading to a potential miscarriage of justice.

Ultimately, the High Court determined that the sentence imposed was manifestly excessive, given the insufficient consideration of the respondent's mental impairment. The court emphasised the importance of evaluating how such impairments impact both the offence and the experience of imprisonment when determining an appropriate sentence. Consequently, the High Court quashed the sentence and remitted the matter to the trial court for resentencing, ensuring that the respondent's mental impairment was properly considered in the sentencing process.

Orders