The Queen v Curran [2013] VSC 583

2 You and Mr Cervi had been friends for some years. He was a former boxing champion and you have been engaged in that sport as a trainer/manager over a reasonably lengthy period. Mr Cervi was a long term user of methylamphetamine and had apparently fallen on financial hard times. He rented out his house and ultimately you became his tenant. He initially lived with his mother but then lived as a tenant at your Coburg factory. This complicated arrangement was a source of frustration, it seems to both of you. Mr Cervi wished you to vacate his house so that he could move back into it. You were reluctant to leave his house and you were also concerned at the state in which Mr Cervi and his friends had left the factory. In turn it appears he was concerned with the state in which you had left his house at 7 Dalgety Street, Preston.

3 Monday 9 March 2009 was the day appointed for the move. Mr Cervi had come to your factory to retrieve some of his belongings. You had borrowed and accidentally damaged his trailer. It is apparent from neutral witnesses accounts that he became angry, directing abuse and expletives at you. He was seen by his partner Kylie Berwick to be behaving in an angry and irrational fashion when he arrived back at Dalgety Street.

4 The neutral witnesses to whom I have just referred were potential purchasers of your factory who were accompanied by your real estate agent Mr Samie. You remained in their company from about 4.00pm until about 6.30pm. A sale price was agreed and they observed you to be in good spirits throughout their time with you. You remained apparently sanguine in the face of Mr Cervi's anger. Those witnesses observed you to consume a relatively small quantity of alcohol over that period and I do not regard alcohol as playing any meaningful part in your offending.

5 At 6.42pm, you texted your friend Tim Bell. I shall set out the terms of that message.

Hi mate, I might have a full on blue with Vinnie and a would be mate me his tonight. There been treating me like a goose. I will go them on my own but I need a chop out because I am go them tonight.

6 At about 7.40pm, you travelled with your partner Janette Allen to Mr Cervi's house at 7 Dalgety Street, Preston. Ms Allen said in evidence that your purpose was to retrieve items of furniture. You drove Ms Allen's Ford Utility and arrived at about 7.50pm. During the trip Tim Bell telephoned you. Ms Allen took the call and spoke to Mr Bell for about 6 minutes.

7 This phone call straddled your arrival at Mr Cervi's house. You parked the ute on the right side for you of Dalgety Street and adjacent to Mr Cervi's house. You did not wait for Ms Allen and alighted the car. Ms Allen remained in it and on the phone for a short time.

8 You walked to the front door. Mr Cervi appeared there. Kylie Berwick and perhaps her son were nearby. Your opening remark to Mr Cervi was "What's your form, cunt?" Thereafter, a struggle developed during which at least four shots were fired from a .22 calibre semi-automatic pistol. One shot struck the deceased in the lower leg. The fatal shot struck the deceased in the abdomen. This shot was deliberately fired by you from a close range and with the gun roughly perpendicular to Mr Cervi's abdomen. He said "You got me" or similar and died very shortly thereafter.

9 Not long after this Paul Bassi, a friend of Mr Cervi's, arrived. You appeared very angry and told him to leave. You would not allow him access to the deceased and said to him "You're next" or similar. Some of your angry remarks, although not that one, can be heard in the background of a recorded 000 call made by Ms Allen (Exhibit 5). During that call you can be heard directing Ms Allen to remove the weapon from the scene but not to hide it.

10 Police arrived and you were quickly apprehended. Either at the scene or later at the Preston Police Station you spoke to the following people about some of the circumstances of the incident:

• Detective Senior Constable Di Camillo
• Detective Constable Tuica
• Detective Sergeant Sheahan
• Detective Senior Constable Hanna
• Dr Du Plessis

The theme of your assertions was that there was a struggle between you and Cervi and during its course a gun accidentally discharged. In none of those accounts did you say that Mr Cervi produced the weapon.

11 One of the most vexed questions in this trial was the identity of the person responsible for bringing the loaded firearm to the scene of the fight. It is a question that remains unresolved by the verdict. I regard it as a fact significant to my assessment of your moral culpability. The prosecution urge me to find that you brought the gun. As a fact adverse to you, the prosecution would need to satisfy me of that fact beyond reasonable doubt. The defence submit I ought find that Mr Cervi brought the gun. As a fact favourable to the defence I would need to be satisfied of that fact on balance before I could act upon it.[1]

12 At the previous trial, after a verdict of murder based on ultimately slightly different evidence, His Honour, the learned sentencing judge, found, to the criminal standard, that you brought the gun to 7 Dalgety Street. As I have said the prosecution urge the same conclusion upon me. In essence, Mr Tinney SC argued that the following factors were sufficient in combination to prove beyond reasonable doubt that you brought the pistol.

(a) You were very angry when you arrived at Dalgety Street.

(b) You were concerned that, in the absence of Tim Bell, whom you had tried to recruit (in the SMS message referenced to earlier), that there was a physical mismatch. The pistol redressed this balance. Cervi, given his size and boxing prowess, would not have had similar concerns.

(c) By directing Janette Allen to remove the weapon from the scene you asserted control over the weapon. Such control was unlikely if the gun was produced by Mr Cervi.

(d) Cervi was in the company of Kylie Berwick and her son Blake before you arrived. Neither say that they saw him with a gun in his possession before you arrived.

(e) Cervi's physical advantage meant that it was unlikely that you would have been able to wrest the gun from him in a struggle or manipulate it to such a position that you were able then to deliberately fire it into Cervi's stomach.

(f) In none of your accounts to police or Dr Du Plessis did you give any account as to how the weapon came to be produced at the scene.

13 Mr Tinney also urged me to accept the evidence of:

(a) Kylie Berwick, who said that she saw you twice with the gun in your hand. Initially, when you and Cervi were struggling, she said the gun was in your hand with Cervi; pointing its muzzle towards the ground; a short time later she said that she saw you aiming the pistol, but she couldn't see your apparent target.

(b) Blake Berwick-Griggs, who said that he saw a gun in the back pocket of your jeans when you arrived at the house.

14 It is sufficient to say that I do not propose to act upon these latter pieces of evidence (i.e. para 13(a) and (b)) in this fact-finding exercise. In my view, Kylie Berwick was an atrocious witness who was prepared to say and do whatever was necessary to secure your conviction on the charge of murder. I am satisfied on balance that she prevailed upon her 13-year-old son to depart from his account at the committal and the previous trial in an important aspect (her presence during his time hiding in the bathroom and wardrobe).

15 I consider that her evidence was driven by hatred. In cross-examination, she was abusive and unresponsive. Justice Kaye remarked at your last sentence that her evidence did not fit with Blake's evidence that throughout the incident she remained with Blake. As I have remarked, Blake's position varied from that in this trial. He said that his mother had spoken to him and told him to tell the truth which was that she had left him for a time during this period. Blake accepted that he had no recollection of his mother leaving him for this period.

16 Similarly, I am unable to accept Blake Berwick-Griggs's evidence that he was outside when you arrived and he saw a pistol in your back pocket. He was interviewed a couple of weeks after this incident (when he was eight) and specifically denied seeing a pistol. He repeated this denial at the committal, at the first trial and in his evidence-in-chief at this trial. It was in cross-examination at this trial that this account emerged for the first time. In re-examination, when asked to describe what he saw, he described a "bendy" handle with wooden fillet. The relevant pistol has a straight black handle.

17 If the evidence referred to in paragraph 11 of these reasons stood alone it would be sufficient to satisfy me beyond reasonable doubt that you produced the gun at 7 Dalgety Street. I am of the view that you were very angry when you went there - evidenced by your opening remark to Mr Cervi and very angry in the immediate aftermath of the shooting evidenced in the 000 call (Exhibit 6) and in the evidence of Bassi and Anagnastopoulos.

18 I doubt, however, that there was the degree of physical mismatch that the Crown maintained. Cervi was a big man, still in good shape and a former Australian heavyweight champion. You also appear to be a big man, at the time in good shape and in the boxing ring regularly as a trainer. No doubt Cervi would have been a formidable opponent but the mismatch was not so great, in my view, so as to make a pistol or other weapon necessary - desirable perhaps, but not necessary.

19 I also consider that you went there expecting a physical confrontation of some sort. The 6.42pm SMS message makes this clear. Cervi, in my view, was also expecting a physical confrontation. He spoke to Bell by telephone after you had sent the text message.

20 Your direction to Ms Allen to remove the gun but not to hide it is, perhaps, some indirect evidence of previous custody and control of the gun although other innocent hypotheses are, I consider, open. In my view, the strongest evidence that you produced the gun lies in your failure to mention to any investigating police officer how the gun came to be introduced into the struggle, or who introduced it. Had Cervi produced it I consider it highly likely that you would have said so to one or more of police officers Di Camillo, Hanna and Sheahan or Dr Du Plessis.

21 As I have remarked, if this is where the evidence rested I would be satisfied beyond reasonable doubt that you produced the gun. There are, however, three further pieces of evidence that need to be considered:

(a) Ms Allen said she did not see you in possession of a pistol at any time on that day. She, like Berwick, comes from a potentially biased perspective as your partner. Nevertheless, I consider that she was a reasonably impressive witness whose evidence could not be dismissed out of hand. You were wearing jeans and a t-shirt on this evening and it may be that the pistol was secreted on your person, perhaps in your waistband and she simply did not see it.

(b) Mr Cervi's DNA was found on the barrel, handle and trigger of the pistol. There was no evidence capable of demonstrating that your DNA was on the pistol at all. One plausible explanation for the presence of Mr Cervi's DNA on these areas of the pistol is that he possessed it before the fight, produced it during the fight and he handled those areas. Another is that he handled the gun during the struggle for it after it was produced by you.

(c) In Mr Cervi's cargo shorts right pocket were six particles of gun-shot residue. There is a flap which hangs over the pocket itself. A plausible explanation for the presence of gun-shot residue in this pocket is that Mr Cervi placed the already dirty gun in that pocket some time before the confrontation and produced it from that pocket. Other explanations of varying plausibility are that the pocket became contaminated during its forensic examination through contact with the same glove that examined the gun-shot residue on the front of the shorts, or that 6 particles of gun-shot residue floated into the pocket past the overarching flap after the gun was discharged. This potentially important evidence was not available at the first trial.

22 Weighing these competing factors as best I can, and after anxious deliberation, I am not satisfied beyond reasonable doubt that you brought the gun to Dalgety Street. I think it is likely that you did, but I am not satisfied of that fact to the criminal standard. It follows that neither am I satisfied on balance that Cervi brought the gun; as I've said I think it's likely that you brought it but that finding is not sufficiently proved for me to act upon it in this sentencing exercise. It also follows therefore that I will not sentence you on the basis that you brought the gun to 7 Dalgety St.

23 I propose to sentence you on the following factual basis:

• You and Cervi had been friends but the friendship had been strained in the time leading up to 9 March 2009.

• On that day Cervi had expressed real anger directed towards you whilst you were in the company of others.

• You became angry with Mr Cervi. By 6.42pm, you had determined to go to his house to retrieve furniture but were cognisant that a physical confrontation with him was likely. You were prepared to fight with him if the situation arose.

• Mr Cervi knew you were coming and that you were angered by his actions that afternoon. One or other of you armed himself with the semi-automatic pistol.

• By the time you reached 7 Dalgety Street, Preston you were very angry. You walked straight to the front door and said "What's your form, cunt?"

• A physical struggle then developed between you and Cervi. I am unable to say who produced the gun. At some stage during the struggle you controlled the gun and deliberately shot Mr Cervi in the abdomen at close range.

• Three other shots were fired from the gun. One of these struck the deceased in the right calf area and was fired from a distance of at least 68 centimetres. I am not satisfied beyond reasonable doubt that you deliberately fired this shot. I consider that it is likely to have been fired during the struggle. I am unable to say who was holding the gun at this time although it must have been 68 centimetres or more from the deceased's right leg. Dr Dodd initially stated that the travel of the bullet was upwards at about 45° to horizontal assuming Mr Cervi was standing. This angle of entry is incompatible with a shot fired from about waist/chest level during a struggle whether the participants are standing or lying on the ground. In cross-examination and then re-examination he resiled from this evidence and stated, effectively, that he could offer no opinion on the angle of entry. I am unable to determine how the remaining two shots were fired save to say that I consider it is likely that the gun was discharged during the struggle.

24 I consider this to be a serious example of the crime of manslaughter. You deliberately shot Mr Cervi in the stomach from close range and in the absence of any form of self-defence.

25 You are now 49 years old. You are the youngest of six children and your family has supported you throughout the trial. You were educated to Year 10 level and whilst at large have been in more or less constant employment since that time. You have been in a number of relationships and have three children. You currently remain in your relationship with Ms Allen. Olivia, your oldest and only daughter, was present for some days during the trial. Darcy, your youngest child, is now aged 18 years. As I understand it, he was having difficulty dealing with life after your arrest. You were granted bail for about six months prior to your last trial and I am told you provided him with significant support during that time. Justice Kaye remarked on this support when sentencing you in 2011 but was troubled that the dramatic improvement in Darcy's circumstances may not be sustained in your absence. Happily, Mr Dane informs me that Darcy, who is now 18, is progressing well. He is apparently drug-free, employed and a father.

26 Between 1984 and 2000, you came before the Court on 14 separate occasions. You have a number of prior offences/convictions for assault-related matters. In the 1980s, you were convicted of assault with intent to rob, assault occasioning actual bodily harm and twice of assaulting police. In the 1990s, you were convicted amongst other offending of offensive behaviour, criminal damage, unlawful assault and intentionally threatening serious injury. Your last prior convictions were for aggravated burglary and theft. In April 2000 you were sentenced to an aggregate of 2 years 6 months imprisonment and served approximately 12 months of that sentence before you were released on parole.

27 It is to your credit that you managed to turn your life around and stay out of trouble for nearly a decade. References were tendered on the plea which demonstrate that you have a generous and caring nature and a talent for parenting. These letters were tendered originally for identification, but have now been received absolutely as Exhibit A. I accept that you dealt with an alcohol problem after your imprisonment and you worked industriously over the nine-year period leading up to Mr Cervi's death.

28 A psychological report prepared in August 2011 by Ms Lechner was tendered on your behalf. I accept that you are of average intelligence and have demonstrated stability in personal relationships and in the workplace. Drugs have never been a problem in your life and you have suffered intermittently from mild depression, largely reactive to your current predicament. There is nothing in your current or past mental history that suggests that it has any role to play in this sentencing exercise. Specifically it does not impact upon a) your culpability, b) the sentencing aspects of general and specific deterrence nor c) the burden upon you of your prison sentence. There is also no serious risk that your imprisonment may significantly and adversely affect your mental health. I do accept, however, that your sound mental health together with other factors that I have recently mentioned make your prospects for rehabilitation better than many others in your position. I assess those prospects as good.

29 On 30 August 2013, your solicitors sent a letter by email to the Director of Public Prosecutions. It contains a relatively heavily qualified offer to plead guilty to manslaughter.

We submit this matter should be resolved by way of the accused entering a plea of guilty to manslaughter and a notice of discontinuance on the murder charge...

Assuming this is an offer to plead guilty to manslaughter this offer is, in my view, qualified by the following:

(a) there be an agreed fact that the deceased brought the gun to the scene; and

(b) there be an agreed fact that you went to 7 Dalgety Street solely to recover your goods rather than to fight with the deceased.

If you consider that there is some prospect of resolution, we would further be grateful of the sentencing range that you might submit to the Court.

30 In my view the letter of 30 August 2013, at its highest, is a tentative approach to the Director of Public Prosecutions that may have led to resolution had the proposed agreed facts been accepted and the prosecution sentencing range been to your solicitor's satisfaction. It is a long way short of being an unqualified offer to plead guilty to manslaughter. I should also say that my fact-finding on this plea does not accord with either proposed agreed fact.

31 The Director elected not to pursue the invitation to resolve the matter in the manner proposed. In the circumstances, I do not propose to accord you the usual benefit that would otherwise accompany an offer to plead guilty to manslaughter before a conviction at trial for that offence. The letter was sent very late in the retrial process and if it contains an offer at all it is heavily qualified in the way that I have explained. I shall however allow you some benefit for it. Had the Director commenced negotiations with you there is a chance that a five week trial may have been avoided. I shall make some allowance for the loss of the chance of that utilitarian benefit. I can distil no remorse from the letter, however I accept that you tried to render first aid after Mr Cervi was shot and you beseeched Sergeant Sheahan not to give up on his efforts at CPR. I am prepared to infer some contrition from these actions and your apparently genuine expressions of grief at losing a mate to Ms Lechner.

32 I consider that general deterrence has a role to play in this exercise. However you gained possession of the gun, the fact remains that you deliberately shot Mr Cervi in the stomach at close range. As I have said, there is no aspect of self-defence to your offending. There are others in the community who may be inclined to settle physical disputes with firearms. They should understand that long terms of imprisonment await them should they offend in this way. The sentence that I impose is also designed to reflect the denunciation by this Court of your conduct. The sentence I am about to pass is also intended to deter you personally from further offending.

33 Balancing these factors as best I can, on the charge of manslaughter I sentence you to 8 years' 6 months' imprisonment. I fix a minimum non-parole term of 5 years 6 months. I declare that 1506 days not including this day be reckoned as served under the sentence pursuant to s 18(4) of the Sentencing Act 1991 and I shall cause that declaration to be noted in the records of the court.

34 I declare that but for the conditional offer to plead guilty that I have referred to in paragraphs [29]-[31] I would have sentenced you to 9 years 3 months imprisonment with a minimum term of 6 years 3 months.

[1] R v Storey (1998) 1 VR 359 AT 369; The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] and [28]; Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [41].