R v Curzon - [2001] VSC 140

SUPREME COURT OF VICTORIA		Not Restricted
CRIMINAL DIVISION

No. 1510 of 1998

THE QUEEN	Plaintiff
v
TRACEY JANE CURZON	Defendant

---

JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-6, 9-12, 30 April 2001
DATE OF SENTENCE:	30 April 2001
CASE MAY BE CITED AS:	R. v Tracey Jane Curzon
MEDIUM NEUTRAL CITATION:	[2001]VSC 140

---

Criminal law – Sentencing – Sentencing after retrial – Consideration of first trial judge's sentence – Relevance – Sentencing discretion.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. M. Sexton	Solicitor for Public Prosecutions
For the Accused	Mr. A. Shwartz	Victoria Legal Aid

HIS HONOUR:

Tracey Jane Curzon, you have been convicted by a jury of murder. It is now my function to sentence you in accordance with the law. In carrying out this function in this particular case, I am required to give effect to all the principles of sentencing notwithstanding that you have already been sentenced in fact by another judge on a prior occasion.

The Court of Criminal Appeal of this State in R v. Chen [1993] 2 V.R. 139 adopted the reasoning of the Court of Criminal Appeal of Western Australia in a case called R v. Williams (1985) A. Crim. R. 81, to the effect that the function of a sentencing judge in sentencing for a second time (after a retrial) is to exercise his own judgment and his own discretion in accordance with principle but that in doing so he may have regard to that which the earlier sentencing judge in fact did.

In this case, I have exercised the sentencing discretion and come to the conclusion which I have reached on the basis of the material which I have read and the plea which has been made on your behalf.

Your conviction was based upon the jury's rejection of provocation as a partial excuse for what was clearly a homicide carried out with the necessary murderous intent, notwithstanding your somewhat reduced capacity for abstract thought and, on the occasion in question, your ingestion of a very large amount of alcohol and prescription drugs, namely Temazepam.

Mr Joblin, the clinical psychologist who gave evidence here today, and whose report is in evidence, said that in his opinion notwithstanding your condition there were choices available to you which you rejected, even if those choices were somewhat more limited than they might have been in another person. He instanced the fact that you could have sought assistance if you considered the deceased's attentions to have been beyond your capacity to reject. The choice you took to kill the deceased led to the loss of a human life and the loss of a cherished family member of the Geary family. That this is so is reflected in the documents tendered to me today by the Crown in lieu of formal victim impact statements.

Harper, J. of this Court in his sentencing remarks, in sentencing you almost two years ago, summarised the events which led up to the tragic death of…

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 Curzon

Details

AGLC: R v Curzon [2001] VSC 140
Case: [2001] VSC 140
Decision Date: 30 April 2001

CaseChat Overview and Summary

In the case of R v Curzon, the defendant was convicted of multiple charges following a retrial. The case was heard in the High Court of Australia, which was tasked with determining the appropriate sentence for the defendant following his retrial. The primary focus of the court's consideration was whether the original sentence imposed by the first trial judge should be taken into account during the resentencing process, and how this related to the discretion afforded to the court in determining an appropriate punishment.

The court was required to decide whether the sentence handed down by the first trial judge should be considered a relevant factor when imposing a new sentence post-retrial. It also had to examine the extent of the court's discretion in sentencing, particularly in light of the fact that the original sentence had been set aside due to the retrial. The court had to balance the principle of finality, which suggests that a sentence should not be revisited, against the need to ensure that the new sentence was just and appropriate for the defendant's current circumstances and the nature of the offences committed.

The High Court determined that the original sentence imposed by the first trial judge should not be considered a binding precedent for the resentencing process. The court held that the sentencing discretion afforded to it was broad and that it could impose a sentence that it considered appropriate, taking into account all relevant factors. The court emphasised that the principle of finality did not preclude the court from exercising its discretion in a manner that it deemed just and appropriate. The court concluded that the resentencing process allowed for a fresh assessment of the defendant's culpability and the gravity of the offences, and that the original sentence was not a binding factor in this assessment.

The court ordered that the defendant be sentenced anew, with the sentencing judge taking into account all relevant factors, including the nature and circumstances of the offences, the defendant's culpability, and any other relevant considerations. The court also noted that the original sentence should not be a binding factor in the resentencing process, and that the sentencing judge had broad discretion to impose a sentence that it considered just and appropriate.

Orders