R v Curtain [2007] VSC 309

2 The plea hearing proceeded on the basis that you had been guilty of unlawful and dangerous acts, in the form of assaults, which caused the death of Mr Iorlano. By your plea you have admitted that you intended to commit those assaults; and that they were dangerous, in the sense that a reasonable person in your position performing the acts that you performed would have realised that he was exposing another to an appreciable risk of serious injury. On the other hand, you stand to be sentenced for a species of involuntary, rather than voluntary, homicide, because it is no part of the offence that you intended to kill Mr Iorlano or to cause him really serious injury. Nor is it any part of the offence that you yourself were aware of the appreciable risk of serious injury. Rather, the offence is viewed objectively, by reference to the perception of a reasonable person in your position.[1]

3 I must now sentence you in accordance with the sentencing guidelines set out in s 5 of the Sentencing Act 1991.

4 I turn first to the circumstances of the offence itself.

5 The evidence relating to the offence consists of your record of interview, the other committal material and certain medical reports, all of which was put before me by consent. Mr Tinney of counsel opened the matter on behalf of the Crown. Your counsel, Mr Connellan, then indicated that, in large part, he took no issue with what the Crown had put to me in the opening. So the facts are largely common ground. However, apart from what is necessarily involved as an element of the offence, I have not taken any facts into account in a way adverse to your interests unless they have been established beyond reasonable doubt[2]. On the other hand, I have not taken any facts into account in your favour unless they have been established on the balance of probabilities[3].

6 In July 2005 you were in a sorry state. You were 41 years of age. Your marriage had disintegrated. You were living apart from your four children. You had become an alcoholic. You had suffered brain damage in an accident involving a train in October 2001. Your financial affairs were under the control of the State Trustees. You were renting a run-down three bedroom house at 45 Balmoral Avenue, Springvale. To supplement your meagre income, you would take in boarders on an informal basis. This gave you access to cash for cigarettes and alcohol. You would become desperate for your rent money.

7 On about 11 July 2005 you met Michael Iorlano for the first time. He was 55 years of age and homeless. He too was an alcoholic. You met him at the Springvale Citizens Advice Bureau while the two of you were waiting to be issued with food vouchers. You offered him a vacant room at 45 Balmoral Avenue. It turned out that Mr Iorlano himself had previously lived in the house. His own parents had owned it for many years and he had grown up in it. Sadly, it was also to be the house in which he would meet his death.

8 Mr Iorlano moved into the house on or about 15 July 2005. There is a lack of clarity in the evidence about the terms of the arrangement. In any event, by 26 July 2005 you were of the firm view that Mr Iorlano owed you $140 in rent. That morning you mentioned to an acquaintance of yours, Anthony Hodges, who had previously been a boarder in the house, that if Mr Iorlano did not pay his rent that day you would "kick him out". You were getting frustrated because you did not have any cigarettes or beer. You wrote out a note for Mr Iorlano requesting the rent and emphasising the urgency of payment. Mr Iorlano was out for most of the day. He returned to the house in the late afternoon. He was very drunk. He had some bottles of beer. He offered you a bottle and you drank it. At the same time you asked him for $140 for the rent, but he gave you only $70. He said it was all he had, and that he was not going to pay more. You were cross about that. At one stage you were seated on a couch in the lounge room and Mr Iorlano was standing nearby. He was becoming verbally aggressive and talking about his own problems. The argument became heated. Mr Iorlano struck you with a backhander to the side of the head and then pushed you as you tried to get up. The blow from the backhander caused some pain but it was not particularly hard and you were not scared of Mr Iorlano. However, you were angry. In retaliation you picked up a rope with a heavy metal hook on the end and swung it hard at Mr Iorlano, striking the side of his head with the hook. Mr Iorlano's blood was later found on the hook.

9 Mr Iorlano then went off to his room, still sounding off. You were feeling agitated. You went for a walk and arrived at the Springvale RSL. The walk took 10 minutes. You bought three bottles of beer to take away. You were served by Geoffrey Smith who had known you as a customer for a couple of years. You had a brief chat with him. You mentioned to him that your boarder was holding out on $70 rent. To Mr Smith you appeared to be your normal self, not upset or angry; and you did not appear to him to be drunk or alcohol affected. You were there for only a few minutes. You then walked back home. So you had been away no more than 25 minutes in total. You expected that Mr Iorlano would be gone by the time you got back.

10 However, when you got home Mr Iorlano was still in his room. You could hear him yelling disparaging things about you. Within 10 minutes of your arrival home, and without having drunk any more beer or other alcohol, you went to Mr Iorlano's room to confront him. He was sitting on his bed watching television. He was wearing nothing but a shirt. You entered his room. He told you to get out and grappled with you to try to get you to leave his room, but he did not hit you. You, though, began to hit him, with both fists, to the face and to the ribs. You hit him many times. You were trying to knock him to the floor, and you succeeded. You continued to hit him with both fists while he was lying there. Indeed you hit him 8 to 10 times, mainly to the face, while he was lying on the floor.

11 Towards the end of the altercation Mr Iorlano was asking for mercy. He said: "Leave me alone". But even after that you punched him a couple more times.

12 Apart from the use of the rope with the hook, you have denied using any implements or boots. At first Mr Tinney invited me to find otherwise. He based this on the number, nature and severity of the injuries sustained by Mr Iorlano, as reported by Professor Cordner, the Director of the Victorian Institute of Forensic Medicine, together with the presence and distribution of the victim's blood on your boots and jeans. I note also that the leg of a cabinet in the bedroom had become detached at the time of the assaults and had blood on it. However, in the end Mr Tinney acknowledged in effect that the evidence was insufficient to satisfy me to the required degree that you had used anything other than your fists in the second episode. On the other hand, you were very strong in the upper body, as your brother testified before me and as had been demonstrated when you worked as a tree lopper.

13 Your own counsel rightly described your attack on Mr Iorlano as ferocious. Your punches caused numerous severe external and internal injuries. The autopsy showed a large number of recent injuries to Mr Iorlano's face, chest, abdomen, neck, arms and legs. He had a fractured skull on the left frontal area, and fractures to the nose, the maxilla in five places and the zygomatic arch on both sides as well as fractures on the right hand side to ribs numbers 2 to 10, and on the left hand side to ribs numbers 4 to 10. There were a number of injuries to the hands and arms that may have represented defensive injuries. There was significant damage internally, including crushing and tearing of the omentum, the transverse mesocolon and the small bowel mesentery and crushing of some adipose tissue in relation to the distal aorta. These injuries indicated to the Professor (and I accept) that there had been numerous and severe blows to the head, the chest and the abdomen. There was a suggestion that death had occurred in the course of the assault given the limited aspiration of blood and the paucity of bruising associated with the rib fractures. This was debated with the Professor at the committal. I am not able to make a finding one way or the other about it. In any event, nothing now turns on it. The cause of death was described as haemorrhage and blunt abdominal trauma on a man with severe facial injuries and rib fractures. This description was not disputed before me and I accept it as an appropriate description of the cause of Mr Iorlano's death. Mr Iorlano had a blood alcohol content of 0.21 per cent at the time of his death.

14 Immediately after the second episode, you walked to the nearby house of a friend, Dean Ansell, to ask for his help in getting Mr Iorlano out of the house. At that stage you did not believe that Mr Iorlano was dead. You returned to the house with Mr Ansell. He could see that Mr Iorlano was then dead and he told you so. He telephoned the emergency services and the two of you waited there for the police and ambulance to arrive.

15 In your police interview, you said that your actions, as you yourself had described them, sounded cruel and horrible. You went on to say that you did not intend for Mr Iorlano to lose his life, and that if you could change that you would. You admitted that he had only hit you once, namely the backhander during the first episode. On the other hand you claimed that he was ready to fight you in the bedroom. You also claimed that you were frightened of being hit because a doctor had told you that you had a blood clot in your head and if it moved you would die. You said that you were intending to teach Mr Iorlano a lesson not to grab you in your own house or to attack you, and that you felt that you had to defend yourself. You claimed that you felt this way even when he was on the floor, because his feet were coming up at you. On the other hand, you acknowledged that you had done the wrong thing. You agreed that you were angry with Mr Iorlano over the rent. Asked whether you were out of control, you said "No. I wasn't out of control". You said that you were trying to assert yourself with Mr Iorlano. You denied having considered that you might cause him serious injury or even kill him. You mentioned having had similar fights with your older brothers without them dying. You claimed that the second episode lasted only about two minutes. At one stage you expressed the idea that someone else may have entered the house and injured Mr Iorlano after you had finished with him.

16 About 20 months later, in February 2007, you gave an account of the matter to a psychiatrist which differed in certain respects from what you had said to the police in your interview. However I place greater weight on what you said at the time. Nothing you told the psychiatrist leads me to depart from the findings of fact which I have expressed. In particular, although you told the psychiatrist that you had commenced one of the three bottles of beer on your way back from the RSL, this is inconsistent with your record of interview. You told the police that you had only one bottle of beer in you when "the bad stuff happened".[4] You explained to them that you had drunk another on your way to Dean Ansell's house; and that you had commenced to drink a third bottle later, but the police had intervened to prevent you from finishing it.[5] I find that you had had only one bottle of beer prior to the assaults on Mr Iorlano, being the bottle that Mr Iorlano himself had given you. Indeed, although you said to the police that you had been "affected by alcohol"[6] when the assaults occurred, upon being asked whether you had been affected to such an extent that you did not know what you were doing, you said: "No. I knew what I was doing".[7]

17 I will come back later to some of the other claims you made to the police and to the psychiatrist, in the context of considering what may have been affecting your mind at the time of the killing.

18 In relation to the maximum penalty and the range of potential penalties for manslaughter, I gratefully adopt the following observations of Nettle JA, sitting as a trial judge, in R v Casey[8].

"The maximum penalty for the offence of manslaughter is 20 years' imprisonment and the most serious cases of manslaughter are liable to attract a penalty of 15 years' imprisonment or more. Such cases involve death caused by acts committed with intent to kill or inflict really serious injury, which, but for provocation, would be murder. Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47 at 68, per Windeyer, J.; R v Osip [2000] VSCA 237; (2000) 2 VR 595 at [46], per Batt, J.A. At the other end of the spectrum there are cases of accidental homicide the result of nothing more culpable than momentary neglect, which, depending upon the facts and circumstances, may attract a short sentence of imprisonment or perhaps even a non-custodial penalty. Between those extremes lies a broad range of cases, of both voluntary and involuntary acts of homicide in a wide spread of circumstances, attracting a range of penalties that is very wide indeed."

19 Mr Tinney put before me, without objection from Mr Connellan, three documents relating to current sentencing practices for manslaughter, namely:

• Sentencing Advisory Council, Sentencing Snapshot: Sentencing Trends for Manslaughter in Victoria, September 2005, No 5.
• Judicial College of Victoria, Manslaughter - Recent Cases Summary, last updated 9 February 2007.
• Judicial College of Victoria, Victorian Higher Court Sentencing Statistics - Manslaughter, last updated 2 November 2005.

The Sentencing Snapshot publication relates to the period 1998/99 to 2003/04. The Sentencing Advisory Council has recently published a corresponding document relating to the period 2001-02 to 2005-06. It is entitled Sentencing Snapshot No 28, dated August 2007.

20 The statistical material, including the latest Sentencing Snapshot, shows an increase in recent years in both the average and the highest lengths of imprisonment terms for manslaughter.

21 In relation to the use of sentencing statistics and the outcomes of other individual cases I am guided, once again, by remarks made by Nettle JA in R v Casey[9]. His Honour said:

"22. ... Recently, in R v Bangard, [2005] VSCA 313 Buchanan and Eames, JJ.A. commented on the role which current sentencing practices and statistics may play in formulating an appropriate sentence, and Eames, J.A. in particular stressed the utility of the kind of material which Mr Brustman has submitted as providing guidance in a broad way on the important question of consistency in sentencing. [2005] VSCA 313 at [29]. Needless to say, I approach the matter accordingly.

23. At the same time, however, as Gleeson, C.J. of New South Wales, as his Honour then was, observed in R v Blacklidge, NSWCCA, 12 December 1995, BC9501665 at 4 it has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff.

25. It should also be borne in mind, as indeed Buchanan, J.A. observed in R v Bangard, [2005] VSCA 313 at [12], that sentencing statistics of the kind submitted by Mr Brustman tend to show that the courts have not reacted appropriately to the increase in the maximum sentence for manslaughter from 15 years to 20 years (which was effected in 1997) by failing to value human life as highly as the legislature. That implies that, although current sentencing practices are a relevant sentencing consideration, they should not necessarily hold the same sway in cases of manslaughter as they do in some other cases."

22 On objective appearances, your offence was a very serious example of manslaughter by unlawful and dangerous acts. Relatively speaking, the first episode was not of primary significance. The injury inflicted on Mr Iorlano during that episode was probably not life-threatening. However during the second episode you subjected Mr Iorlano to a sustained, brutal bashing. He was virtually defenceless against you. Even when he asked for mercy, he was shown none. Nothing he had said or done provided any objective justification for your attack on him. He lost his life. To echo the remarks of Nettle JA in R v Casey to which I have referred, the Court must value human life as highly as the legislature does.

23 On the other hand, as already mentioned, I am required to treat this case as one of involuntary, not voluntary, manslaughter. The Crown has taken that course because of your mental condition at the time of the offence. This in turn leads me to the next factor to which I am required to have regard under s 5(2) of the Sentencing Act 1991.

The offender's culpability and degree of responsibility for the offence

24 It was submitted on your behalf at the plea hearing that your moral culpability and degree of responsibility for the offence were reduced because of the significant brain injury which you sustained in the train accident in 2001. It was common ground that your mental condition called for sensible moderation of the principles of general deterrence. These matters were put forward by reference to what had been said by the Court of Appeal in R v Tsiaras[10] and R v Yaldiz[11]. Since the plea hearing, the "Tsiaras principles" have been reconsidered and reformulated in R v Verdins[12].

25 In this regard I have carefully considered the medical reports which were tendered, namely those of Dr Richard Clements, Rehabilitation Physician, dated 2 July 2003, James Drury, Clinical Neuropsychologist, dated 27 February 2004, Dr Nathan Serry, Consultant Psychiatrist, dated 9 March 2004, David Brownbill, Consultant Neurosurgeon, dated 10 March 2004, Dr John Lloyd, Consultant Neuropsychologist, dated 11 July 2004 and Dr Andrew Carroll, Consultant Forensic Psychiatrist, dated 20 March 2007. All of the reports except the last one were prepared in relation to a claim you made to the Transport Accident Commission for compensation for the injuries you sustained in the accident in October 2001. Even before the accident you had a history of recurrent depression and harmful use of alcohol and other drugs, especially following separation from your wife in 1999. You were intoxicated on the day of the accident. You were trying either to get on or get off a train at a station. You were struck a heavy blow on the head. Most likely a mirror or some other part of the train hit you as it went past. You suffered a left extradural haematoma and fractured left temporal lobe. You were in hospital for six weeks as an in-patient and then three or four months as an out-patient. You suffered post trauma amnesia for between eight and 25 days after the accident. The medical reports show that as of mid-2004 your mental disabilities and related problems attributable to the accident included -

• ongoing dizziness and impairment in distance vision;
• epileptic seizures;
• short term memory problems;
• social withdrawal due to feelings of being "ripped off, stolen from and assaulted" since the accident;
• loss of independence leading to a loss of self-esteem;
• proneness to mounting irritability and frustration;
• proneness to loss of temper and becoming violent on occasions;
• depression;
• clear cognitive difficulties, with impairment in concentration, attention and attendance to complex tasks;
• anger management problems;
• significant changes to personality and behaviour, executive dysfunction and anxiety;
• balance problems;
• fatigue;
• inability to achieve more than a sheltered workshop level of functioning;
• increased verbosity;
• a whole person impairment combining neurological and psychiatric deficits assessed at 22% (by Dr Lloyd) and at 25% (by Dr Serry).

Mr Brownbill's report indicates that your condition (of having suffered a "severe concussive head injury with demonstrated cerebral damage") had stabilised from a neurological point of view by 10 March 2004. I am prepared to infer, from all of the material, that each of the disabilities and problems to which I have referred persisted up until the time of the offence. The evidence shows that your mental condition was also contributed to by pre-existing depression. On the other hand, there was also a contribution by past and ongoing harmful use of alcohol and illicit drugs.

26 Dr Carroll examined you on 14 February 2007 on behalf of the Director of Public Prosecutions. He did not formally assess your cognitive status. He had access to Dr Clements' report and also to certain psychological, occupational therapy and rehabilitation reports and records that were not before me. However the last of these was dated June 2003. It seems that Dr Carroll did not have access to the reports of James Drury, Dr Serry, David Brownbill and Dr Lloyd to which I have referred.

"(44) Curtain is a 43 year old gentleman with a history of recurrent depression, intermittent harmful use of alcohol and amphetamines, and a serious traumatic brain injury which he sustained in 2001. There is no evidence that he suffers from a psychotic disorder.

(45) Around the time leading up to the alleged offence in July 2005, it appears that he was in stable accommodation, was not clinically depressed, and was keeping his alcohol and substance use under reasonable control.

(46) At the time of the alleged offence itself, there is no evidence that he was intoxicated with any substance, nor suffering from the symptoms of any mental illness.

(47) Curtain's own account is not one of a pre-meditated attempt to end the life of Iorlano. Rather, his account is consistent with a verbal conflict which escalated into two separate episodes of interpersonal violence, apparently motivated by a combination of indignant anger and fear.

(48) With respect to his brain injury, it is well recognised that the sequelae of such injuries can be life long, and that victims of such injuries generally reach a plateau in terms of their functioning, beyond which further improvement is unlikely. Although there was a neuropsychology report from November 2001, which is very detailed and helpful, and an occupational therapy assessment from 2002, which both outline deficits in his executive functioning, I did not have available any formal neuropsychological evaluation subsequent to the 2001 report, which was based on evaluation done a month or so after the injury. In order to be clear about his current level of cognitive functioning, it would therefore be useful to arrange for a formal neuropsychology report by an appropriately trained neuropsychologist to be carried out. Although obviously considerable time has passed since the alleged offence, one could confidently assume that any deficits which are present now were also present in July 2005.

(49) His cognitive deficits are clearly not of such a degree that he would be incapable of forming an intent to kill somebody should he choose to do so. This of course is a different question from whether he did in fact form such an intent with respect to the victim in this matter, Iorlano. Curtain's own account was very clearly that he did not intend for such an outcome to occur at any stage.

(50) It is commonly noted that sufferers of brain injury are impaired by poor impulse control. Whilst this may or may not be a feature of Mr Curtain's long term clinical picture, there was nothing in his own account to suggest that poor impulse control played a major part in the behaviour constituting the alleged offence.

(51) Of possible relevance to the alleged offence is the likely impact of his brain injury on his judgment. It is possible that his higher order cognitive deficits may have impaired his ability to monitor and judge the physical force used in the second encounter with Iorlano. It must be noted however that this is essentially speculation on my part."

28 It will be observed that Dr Carroll says (in paragraph 50) that while it is commonly noted that sufferers of brain injury are impaired by poor impulse control there was nothing in your account to suggest that poor impulse control played a major part in the behaviour constituting the offence. On the plea, Mr Connellan took issue with this. I accept Mr Connellan's submission that what he called the "degree of savagery" of the assault suggests in itself a problem with impulse control. Further, I think that the other medical reports to which I have referred and especially Dr Lloyd's reference to your irritability, "explosiveness" and the need for an intervention order to have been taken out, are further confirmation that your acquired brain injury caused or contributed to poor impulse control on your part, and that this played a role in your offending behaviour.

29 In paragraph 51, Dr Carroll refers to the "possible" relevance to the offence of the likely impact of your brain injury on your judgment. Dr Carroll says it is "possible" that your higher order cognitive defects "may" have impaired your ability to monitor and judge the physical force used in the second encounter with Mr Iorlano. Dr Carroll goes on to say that this is essentially speculation on his part. Once again, Mr Connellan took issue with Dr Carroll's cautious way of stating the proposition. And, likewise, I accept Mr Connellan's submission that the evidence before me takes the proposition beyond speculation. It is a proposition supported by the tenor of the other medical reports. Further, it is supported by your repeated statements, to the police and to Dr Carroll, which I think you genuinely believe, to the effect that you could not have inflicted such serious injuries on Mr Iorlano.

30 Moreover, as I have already mentioned, counsel for the Crown expressly acknowledged that this is a case to which the Tsiaras principles apply. That concession was made at a time when the Tsiaras principles were commonly believed to apply only in relation to serious mental impairments, of a diagnosable kind. R v Verdins establishes that lesser mental impairments may fall for consideration in the sentencing process. Further, the Court of Appeal said[13]:

"26 Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of -

(a) impairing the offender's ability to exercise appropriate judgment; R v Hamid (supra); R v Cunliffe (supra); R v Ibrahim (supra) cf R v Walsh [2006] VSCA 87 at [24]; Ayoubi v R [2006] NSWCCA 364 at [27].

(b) impairing the offender's ability to make calm and rational choices, R v Chambers (supra) at 173, or to think clearly; R v Tran [2003] VSC 165 at [14].

(c) making the offender disinhibited; Ayoubi v R (supra) at [27].

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct; R v Sebalj (supra) at [20]; Hurd v R [1988] TASSC 54; [1988] Tas R 126 at 132 per Cox J.

(e) obscuring the intent to commit the offence; R v Yaldiz (supra) at 383_; R v Swingler_ (supra) at [13] or

(f) contributing (causally) to the commission of the offence; R v Walsh (supra) at [22]; Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at 442 [36], [40] per Steytler P; Thompson v The Queen (supra) at 396 [53] per Steytler P.

31 I am satisfied on the balance of probabilities that your mental impairments at the time of the offence had, to a certain extent, each of the effects referred to in that passage. This is well illustrated, I think, by the point made by your counsel about your statements to the police and to Dr Carroll to the effect that you felt it necessary to fight as hard as you did because of fear of receiving a blow that might dislodge a blood clot in your brain. There is no medical evidence before me to the effect that any doctor had actually warned you about any such thing. On the other hand, having regard to your brother Donald's corroborating evidence, I accept that you genuinely believed that you were at risk from a blood clot in your brain. I also accept that this belief had some sort of influence on your thinking at the time of the killing. Needless to say, if a blood clot was really present or if in any other way you really were vulnerable to further brain damage because of your condition, you would have been far better off avoiding fights rather than provoking or escalating them. This is but one example of your brain injury impairing your ability to exercise appropriate judgment, to think clearly, to appreciate the wrongfulness of your conduct etc. Another example is the explanation you gave to Dr Carroll - baseless but, I accept, genuinely believed by you - to the effect that you were worried that if you did not deal with Mr Iorlano severely he might attack you while you were sleeping.

32 I am further satisfied to the necessary extent that you continue to suffer now from significant mental impairment. It appears from Dr Carroll's report that you have been receiving appropriate, effective medication for depression since you have been in custody. In addition you are taking certain medication which operates as an anti-convulsive for your epilepsy and which also has some mood stabilising properties. Otherwise, apart from the fact that your access to alcohol and drugs has been restricted by your being in custody, there is no evidence to suggest that the various other mental disabilities and problems to which I have referred are in any way diminished.

33 I accept, therefore, that general deterrence should be sensibly moderated as a sentencing consideration in your case. Mr Tinney submitted that the applicability of the Tsiaras principles did not call for any moderation of specific deterrence in your case, but, for reasons to which I will come later, I consider that your mental impairment does require that specific deterrence, as well as general deterrence, be sensibly moderated. On the other hand, it was not submitted on your behalf that your condition was such that a given sentence would weigh more heavily on you than it would on a person of normal mental health, so I do not apply that aspect of the R v Verdins principles.[14]

34 Michael Iorlano paid the ultimate price as a result of your offence. He was 55 years of age at the time of his death. I have read the committal statements of his brother Andrea Iorlano and his sister Maria Zeccola concerning the history of the Iorlano family. Michael was one of ten children of Italian immigrants who came to Australia in 1955. There were nine boys and one girl. Michael was the youngest of the children. He grew up with his family in Springvale. As I have already mentioned, a sad twist in the case is that the house that he was to die in as a lodger had in fact been his family home many years before.

35 Michael went to the local primary school and then Noble Park Technical School where he stayed until about Form 5. He then worked as a forklift driver. He married in 1975. He had no children. It would seem that he lost his way in the mid 1980s. He served a prison sentence of some two or three years' duration. He lost his home and his marriage and he became an alcoholic. Thereafter he did not have a lot to do with most members of his family, and would live from house to house, generally not accepting any help from any of them. Despite his reduced circumstances he is described by his siblings as having been a happy and generous person and one who was not prone to aggression even when drunk. There is also a statement from Karen Russell, who spent some time with Mr Iorlano in the months leading up to his death, in which she describes him as a wonderful man, friendly to everyone and non-violent even when drunk. There was no challenge to this description of Mr Iorlano and, generally speaking, I accept it, notwithstanding that I also accept your account of Mr Iorlano's mildly confronting conduct which was part of the first incident.

36 Five victim impact statements have been tendered. One was made by Mr Iorlano's brother, Giussepe; another by his brother, Giovanni; another by his brother, Angelo; another by his sister, Maria; and, finally, another by his former wife, Christine. Your counsel did not object to them, except insofar as they contained comments concerning the appropriateness of the reduction of the charge from murder to manslaughter. I agree that I cannot take those particular comments into account.[15] Otherwise, however, I have taken full account of the victim impact statements to the extent that they contain relevant and admissible material.[16] They confirm that Mr Iorlano was a loving, trusting, happy and much loved person who still had much to contribute, and that his loss has been deeply felt by his siblings, by his nieces and nephews, by his former wife, Christine, and by his friends.

37 You have pleaded guilty to the offence of manslaughter and thereby saved the community and the Court the expense of a trial. This has also spared the ordeal of a trial for the potential witnesses and others involved. You were charged with murder on 27 July 2005. There was a committal on the murder charge in April 2006, at which you pleaded not guilty. You offered to plead guilty to manslaughter in September 2006. The Crown having now accepted your plea, you are entitled to a discount on sentence accordingly.

Your previous character and your personal circumstances

38 I have already sketched the life events which led to your sad state as at July 2005. It is necessary to fill in the picture with more detail.

39 You were born on 21 October 1963 which means you were 41 at the time of the offence. You were born in Melbourne and grew up in the Mentone area. You were one of 10 children, six female and four male. Your sister Catherine, who was four years older than you, died after a prolonged fight with leukaemia when you were 10 or 11 years of age. She was the child immediately above you in the family and this was a significant event in your life. You were educated at St Bede's College, Mentone to Form 5 level. You left school at 17 and you were married, to Joanne, at 18. There are four children of the marriage: Sarah, 23, who is studying law at university; Michael, 19, who is a sub-contract plasterer running his own business and who was present in Court for the plea; Emma, 17, who is a VCE student and also hopes to study law; and Rosy, 15, who is doing Year 10 at a TAFE college. The desire to study law may have been influenced by your niece, Maryanne Wheatley, who is a practising lawyer and who was also in Court for the plea.

40 On leaving school you initially did mainly labouring work, together with occasional tow-truck driving for the RACV. You ended up splitting firewood and that led to the opportunity to become a tree lopper. You became very interested in horticulture and during the 1980s you studied advanced arboriculture part-time over four years at Burnley Horticultural College. You are duly proud of your achievement in completing that course. You consider that you were in the top three or four tree loppers in the State before your accident in 2001, and your brother Donald's evidence tends to support that. In fact you had just established your own tree-lopping business when the accident occurred. You were unable to go back to paid work after the accident because of the effects of your acquired brain damage.

41 On the other hand your personal life had deteriorated markedly prior to the time of the accident. You separated from your wife Joanne in 1999. Even before that, alcohol had been a problem for you, and after the separation you descended into a state of alcoholism. You lost your driver's licence for three years in 2001 on charges of exceeding the prescribed alcohol limit and driving at a dangerous speed. You were placed on a community based order with requirements for drug and alcohol treatment. You had had an assessment but had not commenced treatment when the train accident occurred. You were breached in relation to the community based order, in that context, in early 2002. Medical reports before me indicate that you have used cannabis and amphetamines from time to time. You have an old conviction for possession of cannabis. After the separation from your wife you had a relatively short relationship with a woman named Kayla. She was present with you when the accident happened in 2001. Your counsel commented that it was not a particularly healthy relationship in that there was a mutual interest in alcohol.

42 The reports indicate that, after being discharged from rehabilitation care following the accident in 2001, you returned to live with Joanne and the children for a few months. However this did not work out. You then lived with your parents until you were able to find accommodation at 45 Balmoral Avenue, Springvale through the intervention of State Trustees.

43 Your brother Donald gave impressive evidence on your behalf. He is the third oldest in the family, being about 10 years older than you. It is not entirely clear what opportunities he had had to observe you over the years. However he spoke eloquently of the change in your personality and situation following the accident in October 2001. According to Donald, you had a very good relationship with your children prior to the accident. You were a gentle, easy going father. You spoke proudly of your children and took an interest in everything they did. After the separation from Joanne in 1999, you continued to speak the same way about your children and you wanted to get back and be their father. You were not bitter towards Joanne. You defended her in family discussions. So far as Donald was aware, you had not acted violently prior to the accident. You were good-natured. You loved the natural world and you were very good with animals, especially dogs. You were fearless of heights. You could climb well and you were strong in the arms. You were perfectly suited to the work of an arborist. However, after the accident you drank alcohol to an even greater extent than before. Alcohol was the reason you had to leave your parents' house. You changed after the accident. You would become frustrated and annoyed quite quickly, especially when you could not make a point you wanted to make. You would become distant for a short time during a conversation. A person meeting you for the first time after the accident would not have picked up the brain damage, but the family could see it quite clearly. You were very worried about getting another knock on the head. Donald saw you getting angry on occasions and he had heard about an argument you had had with another brother, Geoff - probably over alcohol - in which you had started to get violent and had had to be restrained by another family member who is a Federal policeman. Donald had also heard of an incident in which a train inspector was about to eject you from a train and you physically restrained the train inspector because you were worried about being hit in the head. After the accident you became thinner and lost muscle tone and appeared to Donald to be a little depressed. Before the accident, it would have been a total shock to Donald to hear that you had engaged in the kind of behaviour that led to the death of Mr Iorlano. After the accident, Donald would not have been surprised to hear that you had been in a fight, but he was surprised that you went as far as you did.

44 Donald spoke cautiously about the question of family support after your eventual release from prison. He said that you needed to build up a fair bit of trust in the family. The family will support you emotionally and, if necessary, financially, but the family needs to be assured that you would give up alcohol. Because of your brain damage and because of the alcohol, even Donald's family would not allow you to stay in their house alone at this stage.

45 Mr Connellan had sought instructions from you about your current attitude to drugs and alcohol. You told him that really cannabis and amphetamines play no part in your life and have not done so for some time now. You also told him that you do not want to drink alcohol any more but, as Mr Connellan said, that is always a big test for an alcoholic. It is of significant concern that, when pressed, you told Mr Connellan that if your father asked you to have a whisky with him you would do so.

46 You were always close to your parents. Indeed you rang them and spoke to them over the telephone very shortly after you returned to the house with Mr Ansell on the evening in question. You admitted to them that you were responsible for Mr Iorlano's death. Your mother passed away last year. You were very close to her. You attended her funeral, but, being in handcuffs, you found it a very difficult experience, particularly in terms of sharing your grief and the family's grief on that occasion. You maintain contact with your father, but he suffers so badly from emphysema he cannot walk sufficiently to be able to visit you in prison.

47 You have had only limited face-to-face contact with your children since you have been in custody. However you have tried to maintain regular telephone contact with them. It is your practice to ring them each evening. You do not always succeed in contacting them but you make the attempt. Your daughter Sarah, in particular, has found present events very difficult to deal with.

48 Your counsel pressed three further matters in mitigation: lack of pre-meditation, remorse and prospects of rehabilitation.

49 Turning first to lack of pre-meditation, Mr Tinney did not deny that your assaults on Mr Iorlano lacked pre-meditation. Indeed Dr Carroll had said that your account was "not one of a pre-meditated attempt to end the life of Iorlano". On the other hand, there is no doubt that you were determined to evict Mr Iorlano that evening by one means or another. Your trip to the RSL after the first episode points in two directions for present purposes. On the one hand it may represent, in part, an admirable attempt by you to cool down after the first episode. On the other hand, you did not just go out for a walk. You wanted beer and you needed to go to the RSL to get it. You warned Mr Iorlano to be gone before you got back. At the RSL, while you appeared to be quite calm, you expressed irritation about Mr Iorlano "holding out" on the rent money. You must have been continuing to brood about this. When you returned you were very unhappy that Mr Iorlano was still there. You were adamant that you did not want Mr Iorlano staying in the house (albeit that you later told Dr Carroll that this was because of a fear of being hit by Mr Iorlano while you slept). You then went to Mr Iorlano's room and provoked a physical confrontation with him. It quickly developed into a brutal attack by you on a highly intoxicated, relatively helpless man. That said, however, and bearing in mind the effects of your brain injury, I accept that your attacks on Mr Iorlano cannot properly be described as pre-meditated in the usual sense.

50 As to remorse, your counsel submitted first that you had gone to Dean Ansell's house immediately after the events in question seeking help for Mr Iorlano. However there is no satisfactory evidence that your intention was to seek help for Mr Iorlano. I accept that you believed he was still alive. However you yourself said to the police in your record of interview that you told Dean Ansell that you needed his help because you could not carry Mr Iorlano out and you just wanted him to go.[17] Dean Ansell's statement is not inconsistent with this. He said you looked very worried; that you told him you had had a fight with the "old boarder" over money; that he was pretty bloody; and that he would not get up. Mr Ansell states that you were drunk and rambling and difficult to understand.

51 However I accept that, very soon after the events in question, both in your phone call to your parents and in your record of interview, you acknowledged responsibility for having hurt Mr Iorlano. You could not fully comprehend or accept that you had caused all of his injuries or his death. In speaking to the police you repeatedly described the events as a "fist fight", although at no stage did Mr Iorlano hit you with a fist. As already mentioned, you did say at one stage: "... hearing this myself sounds like a cruel, horrible thing, but it happened to me and I'm so - really wish that it didn't happen ... Even - if I could wipe it away I would, but it's happened and now the man's lost his life. I did not intend that to happen, that is for sure".[18] Later on, when being questioned about striking Mr Iorlano when he was down on the floor, you said: "No, I've done the wrong thing". Later again you said: "Deeply regret it. I really wish it didn't happen. I certainly didn't want him to lose his life. I really didn't and I don't know how it happened".[19]

52 On the day of the plea hearing you wrote out a statement which your counsel read out in open court without objection. Members of the Iorlano family were present. You began by saying that you wished to apologise to Michael's family. You went on to say that since you have been incarcerated you have had many hours to contemplate where you went wrong in life. You apologised to your own family and expressed a determination to emerge as a law-abiding citizen and a good father to your children. Separately, you had expressed to your counsel the sentiment that you were sorry to everyone that loved Michael Iorlano; that you had lost your own sister and mother and that you knew how it felt to lose someone but you did not know how bad it must feel to lose someone taken by somebody else's action.

53 The remorse you showed originally for what you did to Mr Iorlano may have been tinged with regret for the predicament in which you found yourself, but I accept, nevertheless, that there was, even then, a strong element of genuine remorse. Further, I am satisfied that you are fully genuine in your recent expressions of remorse.

54 I turn to your prospects of rehabilitation. Mr Connellan submitted that I could conclude that, although you would clearly have problems, especially in relation to alcohol, and, given your brain damage, in adjusting to the community when you are released, you have good prospects of rehabilitation. In that regard he referred to your background and he noted that you have no prior convictions for violence.

55 It is encouraging that your brother Donald was prepared to give evidence on your behalf and that your son Michael was in Court to support you at the plea hearing. On the other hand, it has not been suggested that you have any prospects of support from your former wife Joanne. You have a strong desire to resume a good relationship with your children but it remains to be seen how that might progress. Donald was quite guarded about the extent to which family support could be made available to you if you continued to use alcohol. Obviously it would be very much in your interests for you to refrain completely from any further contact with alcohol or drugs, but I view with concern your indication that you would have a glass of whisky with your father if invited to do so.

56 Unfortunately the medical reports before me concerning your prospects of returning to gainful work are pessimistic. On the other hand, those reports are now somewhat old. The issue is not commented on directly in the more recent report of Dr Carroll. After going into custody at Port Philip Prison you began a course in horticulture at the Holmesglen TAFE, but after being transferred to the Melbourne Remand Prison you were unable to continue with it. At the time of the plea hearing you were in the Calder Unit at Melbourne Remand Prison. This involves living in one of four flats each of which accommodates four prisoners, and being able, if you wish, to prepare your own meals and keep the place clean. Presumably, you have earned the privilege of being able to live in that area while on remand. You have taken on horticultural work around the flats and in the general horticultural area of the prison. Indeed you have apparently been employed five days per week in horticultural activities within the prison environment and you continue to express a fondness for horticultural work. It is to be hoped that in due course something suitable may become available to you in the outside world, but I note that your counsel frankly acknowledged that your own hopes and plans in that regard may be unduly optimistic.

57 The sad fact is that you will very likely be considerably handicapped by your acquired brain damage for the foreseeable future, not only in relation to work but in relation to living skills generally. It is to be hoped that appropriate public support services can be put in place to assist you when you are released on parole and thereafter.

58 It is true that you have no prior convictions for violence, and that this is your first stay in prison, but it is obvious from the medical evidence and from your brother's evidence that, at least after the accident, your condition was such that you were likely to get into fights quite readily. Your physical strength and your explosiveness were, and, subject to the possibility of control of your impulses by medication, presumably still are, such that any fight you were in could have tragic consequences. You continue to lack insight, as is apparent from your reporting to Dr Carroll that you do not have any propensity for violence, saying "it's not my nature, I'm a gentle person. It's important I don't have this (the alleged offence) held against my name ... I want the truth to come out". The material before me provides little basis for confidence that you would not get yourself into similar difficulties in the future. Nothing has been put to me about any specific treatment or program that may be available for you in that regard after you are released from prison. In all the circumstances one must be guarded about your prospects of rehabilitation.

59 To use your own words, the killing of Michael Iorlano was a cruel, horrible thing. On the face of things it was a very serious example of unlawful and dangerous act manslaughter. Your acquired brain damage goes some way to explaining how this dreadful event happened. But it does not provide a complete explanation, and it certainly does not eliminate entirely your culpability for the sustained, brutal bashing of Michael Iorlano.[20] Although I am required to proceed on the basis that you did not intend to kill Michael Iorlano or to cause him really serious injury, it is an element of the offence that you intended to commit the assaults in question. Indeed, you yourself told the police that you knew what you were doing. The sentence to be imposed on you must express the denunciation of the community as well as providing adequate general deterrence[21], albeit that the principles of general deterrence must be sensibly moderated in view of your mental impairment.[22] Bearing in mind the effects of your crime on Michael Iorlano, his family and his friends, punishment to an extent which is just and proportionate in all of the circumstances is called for.[23] Specific deterrence is relevant too, because unfortunately it cannot be said that you are unlikely to offend again. On the other hand, in my view, your capacity to learn from the pronouncement of the Court is likely to be reduced by your mental condition, and it is necessary that the principles of specific deterrence be moderated accordingly. The nature of this crime, and the fact that it was perpetrated on someone who was a boarder in your house whom you hardly knew, indicates that protection of the community is a relevant sentencing purpose in the present case.[24] Against these considerations, I must take into account the mitigating factors to which I have referred, especially your acquired brain damage, your plea of guilty, your remorse, the absence of any prior convictions for violence and the lack of any real pre-meditation. I take into account too the hardship that is involved in your separation from your children. Unfortunately I am unable to see that your prospects of rehabilitation are particularly good, but nevertheless I recognise that the community has a strong interest in the rehabilitation of offenders and I do take into account in your favour that you have some prospects of rehabilitation.[25]

60 Weighing up all of these considerations, and having regard to the maximum sentence for manslaughter and to current sentencing practices, I consider that a head sentence of 9 years' imprisonment with a non-parole period[26] of 6 years is appropriate overall.

61 John Francis Curtain, you have pleaded guilty to the manslaughter of Michael Iorlano, of which I now convict you.

62 I sentence you for that offence to a term of imprisonment of 9 years and I set a non-parole period of 6 years.

63 I declare the period to be reckoned as already served under the sentence since your arrest on 26 July 2005 is 765 days counting this day.

64 Subject to any objection by your counsel, I will make an order for disposal of the clothing and other items which were the subject of the draft disposal order that was deferred on the day of the plea hearing.

[1] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313.

[2] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 280-281; GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30].

[3] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 280 [24]; R v Walker, De Bono & Conci [2003] VSC 155 at [19]; Adanguidi v R [2006] NSWCCA 404 at [56].

[5] See questions 173, 185, 191, 199, 200, 203.

[7] Question 205. As indicated already, the record of interview was tendered by consent. I have not overlooked the report of Associate Professor Wells dated 6 January 2006 expressing some uncertainty about your fitness to be interviewed at the relevant time.

[8] [2006] VSC 146 at [20]. See also R v Detenamo [2007] VSCA 160 at [13].

[9] [2006] VSC 146 at [22]- [25]. See also R v Walsh [2006] VSCA 87 at [29]- [30]; R v Randall [2007] VSC 35 at [43]; DPP v Arney [2007] VSCA 126 at [14]; R v Detenamo [2007] VSCA 160 at [13].

[10] [1996] VicRp 26; [1996] 1 VR 398.

[11] [1998] 2 VR 376.

[12] [2007] VSCA 102. See also R v Howell [2007] VSCA 119 at [20].

[13] [2007] VSCA 102 at [26]. This list was said to be non-exhaustive.

[14] [2007] VSCA 102 at [27]- [30].

[15] Sentencing Act 1991, s 95B; R v Leathan [2006] VSC 315 at [15]- [21].

[16] See previous footnote. See also R v Swift [2007] VSCA 52 at [4]- [9]; R v Disher [2007] VSC 269 at [23].

[20] Compare R v Disher [2007] VSC 269 at [19]- [22].

[21] R v Casey [2006] VSC 146 at [55] and cases there cited.

[22] R v Verdins [2007] VSCA 102 at [17]- [22], [32].

[23] Sentencing Act s 5(1)(a); R v Casey [2006] VSC 146 at [55].

[24] Sentencing Act s 5(1)(e).

[25] R v Detenamo [2007] VSCA 160 at [27].

[26] As to the general principles relating to the setting of a non-parole period, including the significance of the prospects of rehabilitation, see R v Alparslan [2007] VSCA 3, esp at [13]-[25], [32]-[34]; R v Detenamo [2007] VSCA 160 at [23]- [27]; R v Rackley [2007] VSCA 169 at [20]- [22].