R v Heriban - [2005] VSC 73

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1491 of 2004

THE QUEEN

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…

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 Heriban

Details

AGLC: R v Heriban [2005] VSC 73
Case: [2005] VSC 73
Decision Date: 23 March 2005

CaseChat Overview and Summary

In the case of R v Heriban, the respondent was convicted of manslaughter by reason of an unlawful and dangerous act that led to the death of the deceased, who was committing a burglary at the time of the incident. The High Court of Australia was tasked with determining the appropriate sentence for the respondent's crime. The legal issues before the Court included whether the respondent's actions constituted a dangerous act, and if so, whether the sentence imposed was appropriate.

The Court found that the respondent's actions did indeed constitute an unlawful and dangerous act. The deceased was committing a burglary at the time, which was an unlawful act. The respondent's act of throwing a punch at the deceased was also considered unlawful. The Court found that the punch, though not directly causing the death, was a dangerous act that contributed to the circumstances leading to the deceased's fall and subsequent death. The Court further determined that the sentence imposed on the respondent was appropriate and reflected the seriousness of the crime.

The Court's reasoning was based on the principle that a dangerous act can be considered manslaughter if it leads to the death of another person, even if the death was not the direct result of the act. In this case, the respondent's punch was considered a dangerous act, and the Court found that it contributed to the deceased's death. The Court also took into account the respondent's background and circumstances, as well as the impact of the crime on the victim's family. The Court concluded that the sentence imposed was proportionate to the crime and reflected the seriousness of the respondent's actions.

Orders