R v Heriban
[2005] VSC 73
•23 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1491 of 2004
| THE QUEEN |
| v |
| MICHAEL STEPHEN HERIBAN |
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JUDGE: | WHELAN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 March 2005 | |
DATE OF SENTENCE: | 23 March 2005 | |
CASE MAY BE CITED AS: | R v Heriban | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 73 | |
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CRIMINAL LAW – Sentence – Manslaughter – Unlawful and dangerous act – Deceased committing burglary – Punch thrown – Death as a result of fall.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Gilligan | Solicitor for the Office of Public Prosecutions |
| For the Accused Heriban | Mr M.A. Fullerton | Tyler Tipping and Woods |
| For the Accused Brunner | Mr J.D. Montgomery | Robert Davis |
HIS HONOUR:
Michael Stephen Heriban, on 4 March 2005 you pleaded guilty to the manslaughter of John Paravinic on 23 June 2003. The maximum penalty for this offence is 20 years’ imprisonment.
You were arraigned together with a co-accused, Kurt Joseph Brunner. Mr Brunner was charged as an accessory. He also pleaded guilty. I heard both pleas on 4 March 2005.
The Crown opened the matter against both you and your co-accused together. A summary of that opening is as follows. Mr Brunner spent Sunday, 22 June 2003 with the deceased, John Paravinic. Throughout the course of the day and that night they were drinking together at various places in the Latrobe Valley and carrying out a number of errands and other activities which are not presently relevant. In the early hours of Monday, 23 June 2003, the deceased dropped Mr Brunner at the home of your brother, Peter Heriban. You had spent Sunday, 22 June 2003 with your brother and others and had also been drinking most of the day and into that night. In the early hours of Monday, 23 June 2003, you dropped your brother at his house and went around to your own house. There, you saw the deceased’s station wagon parked in your driveway. There was a light on inside your house. You called out but no-one answered. You saw some of your property in the back of the deceased’s vehicle. You removed the deceased’s keys from his ignition, parked your car so that his vehicle could not leave, and returned to your brother’s house. There you told your brother and Mr Brunner what you had seen and you all returned to your own house. You began removing your property from the deceased’s station wagon and returning it to your house. The deceased then emerged from some bushes and walked towards you. You punched him in the face. The punch caused him to fall backwards. A short time later you punched and kicked the deceased while he was on the ground. You and Mr Brunner then moved the vehicles, taking care not to run over the deceased. You placed the deceased in the back of his own vehicle. Mr Brunner drove the deceased’s vehicle, with you and your brother following behind, to a remote bush track, where Mr Brunner drove the deceased’s vehicle into a tree. The next day, believing that some of your property was still in the deceased’s vehicle, you returned to the track with your brother and your daughter. As you approached the vehicle you realised the deceased was still there and that he was dead. You immediately returned to your car and drove off.
A post mortem examination on the deceased indicated that the cause of death was skull fracture and intercranial haemorrhage. Dr Malcolm Dodd, who conducted the post mortem, expressed the opinion that the deceased would have died quickly “and probably was dead in the vehicle”. The deceased had an injury to his upper lip which could be explained by one blow and had three broken ribs consistent with a kick. The medical evidence suggests that it was the first punch and the resultant fall which caused the deceased’s death.
Manslaughter is a serious offence. On your plea, your counsel, Mr Fullerton, suggested that it was an offence which cast a very wide net of culpability. He said that whilst there was an unlawful assault here and clearly a dangerous act, if there had been no burglary there would have been no assault. He also referred to the fact that you were significantly inebriated at the time.
The circumstances which may give rise to the offence of manslaughter do involve a wide range of degrees of culpability which is reflected in a wide range of penalties.[1] It seems to me that the circumstances of this offence involve less culpability on your part than is often the case for manslaughter by unlawful and dangerous act. You responded to a burglary by punching the burglar in the face. However, you were not attempting to arrest the burglar or prevent his flight, you did not contact the police, either before or after your assault, and you participated in the abandonment of the deceased at a remote location after you had assaulted him.
[1]R v Johns [2003] VSC 415 at [20] per Nettle J.
You were significantly affected by alcohol at the time. In my view, this circumstance does not reduce your culpability, although it might explain the disinhibition that led you to punch the deceased when he revealed himself.
The deceased was a man of similar age to yourself. Victim impact statements have been filed by his de facto wife, his mother, his son, his daughter, his former wife, his sister, and his niece. It is clear from those statements that the deceased’s family has been tragically affected by his death. The deceased himself had a very poor criminal record. As I indicated during the plea, I do not consider the deceased’s poor criminal record to be relevant. That is not to say, of course, that the fact that the deceased was in the course of committing a burglary on your house at the time of your attack is not a circumstance that is most relevant.
Prior to being interviewed in relation to this offence, the police secretly recorded a conversation between you and Mr Brunner, with Mr Brunner’s co-operation. When you were later interviewed by police, you admitted both the initial punch and the further subsequent attack on the deceased. You re-enacted your actions for the police. In the course of your plea, I viewed part of a DVD recording of that re‑enactment. The police gave you an opportunity to express your remorse in the portion that I viewed. You expressed remorse and sorrow for what had happened in terms that appeared genuine and credible.
You are now 38 years old. You have six brothers, four of whom were present in Court on the plea. Your father has died. You were married in 1989 and have two children: Melanie, who is 16, and Joshua, who is 14. Your wife left you when the children were young and you had been their sole custodian until you were taken into custody for this offence. Your children have been living with your mother, who was also in Court on your plea. You have another child, Lauren, who is aged 6½ years. The mother of that child is Tracie Verco. Ms Verco, together with a number of other friends and acquaintances of yours, have written references for you for the purpose of your plea. The picture of you that emerges from those references is of a person who is not of a violent disposition and who has been a good father.
You left school in Year 10 and have worked at a variety of occupations including cabinet maker and rigger. As a rigger you worked for Sledge Hammer Metals Pty Ltd. The managing director of Sledge Hammer Metals Pty Ltd, Mr Tony Difresco, gave a written reference for the purpose of your plea and was also called to give evidence orally. He described you as a reliable person who got on well with others. He said he would re-employ you as soon as you were available. I also heard evidence from Ms Janice Simpson. Ms Simpson is a professional, working with children who have learning and social difficulties. She described you as a very gentle, quiet, happy and honest person. She said you were a good father, but that your children were suffering as a result of your incarceration.
You do not have any prior convictions for violence. You have four prior convictions for alcohol‑related driving offences and one prior conviction in 1993 for being unlawfully on premises.
Counsel for the Crown submitted that your second attack on the deceased, whilst not related to the deceased’s death, was an aggravating factor. It seems to me that that is correct.
In mitigation, your counsel put the following matters:
1.You had never sought to evade responsibility for what had happened, either in the covertly recorded conversation with Mr Brunner, the record of interview, or the re-enactment.
2.You pleaded guilty, and had indicated a preparedness to plead guilty to manslaughter once the medical evidence as to the cause of death was known.
3.Whilst manslaughter is a serious offence, the fact that the assault occurred in the course of a burglary was a matter to be taken into account in mitigation.
4.The deceased’s death was caused by the fall rather than the blow itself, and otherwise the injuries suffered by the deceased were minor.
5.The fact that you returned to the vehicle the next morning with your brother and your daughter confirmed that you had no idea that the deceased had suffered serious injury the night before.
6.The deceased’s criminal record is extensive and includes numerous burglaries and thefts. Your counsel referred to the fact that you were acquainted with the deceased and suggested that his record was relevant as indicating why you were so annoyed.
7.Your background is that of a hard‑working person of good reputation. Numerous people have written references for you and two gave evidence on oath on your plea. You have no prior history of violence.
8.Your children are at a vulnerable age and the sooner you are reunited with them the better.
9.You have expressed genuine remorse.
Your counsel suggested that the time you had spent in custody was sufficient, given the circumstances.
With the exception of the submission made in relation to the deceased’s criminal record, I accept that all of the matters put on your behalf by your counsel are factors properly to be taken into account in mitigation. I do not think there is any issue of significance in relation to specific deterrence in your case. There is an issue of general deterrence. Whilst burglary is itself a serious crime and a significant social problem, victims must not undertake the task of punishment themselves. That is what you did in this case, and it had tragic consequences for the deceased and his family, and for you and your family.
Bearing in mind the seriousness of the offence itself, I consider that a sentence of imprisonment must be imposed. Counsel for the Crown submitted that the time already served would not constitute a sufficient minimum term before being eligible for parole. Your conduct on the night in question after the initial punch leads me to agree.
I sentence you to three (3) years’ imprisonment for the manslaughter of John Paravinic. I fix a non‑parole period of two (2) years. I declare, pursuant to s.18(4) of the Sentencing Act, that you have already served a period of 637 days in custody.
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