R v Curzon [2001] VSC 140

Supreme Court of Victoria|2001-04-30|Before: Bongiorno J

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

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] VicRp 64; adopted the reasoning of the Court of Criminal Appeal of Western Australia in a case called , 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 Mr Geary and I do not propose to elaborate further upon them now. As Harper, J. said, those members of the Geary family who were in court during that trial, and perhaps during this trial, have had to live through that enough. Those facts must, by now, be almost as horrendous to you as they are to anyone else hearing them recounted. Indeed, Mr Joblin accepted that the blackouts you describe as having occurred on the night that the murder took place may be explicable on the basis of an acute anxiety reaction to the horrendous act you were performing leading you, subconsciously at least, to a state of trauma induced amnesia. Whether this is so or whether they were, like other blackouts you have described as having occurred over time, simply the result of alcohol and drugs is of little moment now.

Your counsel has urged upon me that the considerations of general deterrence and special deterrence, which are normally of substantial significance in sentences imposed in respect of a crime as deliberate as that for which you are to be sentenced, have little part to play here. I accept those submissions.

Further, your counsel eschewed a reliance upon mercy. Rather, he pointed to what he described as your unique position in having committed this crime in the bizarre circumstances in which you did, contributed to by your limited capacity to reason and in a fog of alcohol and drugs. He submitted that this was the basis for a somewhat lesser sentence than what might be said to be "normal". It seems to me to make little difference whether recourse is had to a principle of mercy or to a strict analysis of the facts, as your counsel submits, for it is those very facts which would lead a sentencing court, in any event, to see mercy as being not inappropriate in a case such as yours.

In sentencing you two years ago, Harper, J. accepted a submission that prison was likely to be more difficult for you than it might be for others. Your counsel does not put that submission today, largely because of the evidence of your mother as to her observations of you since you have been in custody. The frankness and candour with which she gave her evidence, which I have found very helpful, is commendable. There must be few more poignant concessions ever made by a mother in circumstances in which she found herself than those made by your mother in describing the way in which you are presently coping with the grim environment of the prison system.

Your counsel did point, however, to the fact that some of the matters referred to by your mother may make it extremely difficult for you upon your ultimate release. He referred to institutionalisation. That may well be so, but it is not a matter to which I can have regard at this time. My function at this point is to impose a proper sentence according to law. Ultimately, when you are released, it will be for others to assist you to reintegrate yourself into the community. Even if such a submission was relevant to an issue of rehabilitation it would, on the evidence as I have accepted it, make no difference having regard to the necessity to impose a long custodial sentence in any event.

You have prior convictions but I regard those, in the circumstances of this case, to be irrelevant.

The sentences for murder in this State vary widely but having taken into account all of the matters your counsel has urged upon me, and the material which he filed and which I have read, being the reports of Dr Walton, Mr Joblin, and the material presented on the plea before Harper, J. two years ago, I have come to the conclusion that I should impose the same sentence that Harper, J. did.

Accordingly, I sentence you to 12 years' imprisonment and order that you serve a minimum of 9 years before being eligible for parole. I note the concession made by the Crown that you have been in custody for 1313 days, and I declare that that is a period served in diminution of the sentence which I have imposed. I direct that my declaration to that effect be entered in the records of the court.

Before concluding, there is one other matter to which I wish to turn. It does not bear upon the sentence which I have imposed upon you, but is a matter which I cannot leave untouched. In the course of the trial, your mother produced a bundle of computer print-outs which showed the vast amount of prescription drugs which you had been able to obtain, apparently legally and regularly using prescriptions from medical practitioners, dispensed by pharmacies in the area in which you lived. A cursory analysis of those print-outs showed that in the month of July 1997 you were able to obtain and have dispensed 17 prescriptions for Temazepam, each prescription being of 25 tablets or capsules of 10 milligrams each making a total of 425 capsules for the month. Having regard to the recommended dosage, namely one or two capsules at night only when necessary, the excessive amounts of that drug, to which you became addicted and which you were able to obtain is easily appreciated. Had you taken those drugs in accordance with the prescription, you would have taken a maximum of 62 for the month. It appears that you probably took something of the order of 425 for the month. In other months immediately prior to this murder your intake of Temazepam was similar or greater. That you were able to obtain these drugs in the way in which you did, apparently legally and apparently regularly, suggests that there is something radically wrong with the way in which prescription drugs are distributed in this community. Accordingly, I direct that the Crown provide a copy of these comments to the Federal Minister for Health, Dr Wooldridge, for his consideration.

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