DPP v Nestorowycz - [2008] VSC 385

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1682 of 2008

THE DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
ANASTASIA NESTOROWYCZ	Defendant

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 SEPTEMBER 2008
DATE OF JUDGMENT:	29 SEPTEMBER 2008
CASE MAY BE CITED AS:	DPP v NESTOROWYCZ
MEDIUM NEUTRAL CITATION:	[2008] VSC 385

---

CRIMINAL LAW – Sentence – Attempted murder – Stabbing of husband who was suffering from dementia – Plea of guilty – Sentenced to 2 years and 9 months’ imprisonment wholly suspended – Exceptional circumstances - Offender suffering from major depressive disorder at time of offence – Reduced capacity to make appropriate decisions - Offender attempted to kill herself - Effect of s 6AAA of Sentencing Act 1991.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan SC	Stuart Ward, Acting Solicitor for Public Prosecutions
For the Defendant	Mr D. McKenzie	Victoria Legal Aid

HIS HONOUR:

Anastasia Nestorowycz, on 24 June this year you pleaded to a charge that, on 14 June 2007, you attempted to murder Paul Nestorowycz. He is your husband. You stabbed him once, in the stomach. You were aiming for his heart. You intended to kill him. You almost succeeded. Your husband was very badly injured, and required intensive medical care over a long period before he recovered.

Attempted murder is, of course, a very serious crime. Parliament has decided that the maximum penalty for it is 25 years’ imprisonment. That penalty, however, is reserved for the very worst examples of the crime; a really evil case of attempted murder, committed by someone with no remorse and who did not plead guilty.

You do not fall into that category. At the same time, you took it upon yourself to make a decision which had the gravest possible consequences for someone else – your husband. You decided that there was no point in your husband continuing to live, and that therefore he should die, and that you should kill him.

Judges do not have the right to decide whether someone else should live or die. Neither do you. Life – any life – is too important for that. So the Court cannot ignore the fact that you made a decision you had no right to make; that it was the wrong decision; that it resulted in your attempting to murder your husband; and that it caused him to endure much suffering.

I am, of course, required to sentence you according to law. An important part of that law is to be found in an Act of the Parliament of Victoria. That Act is called the Sentencing Act. It says that attempted murder is one of a class of offences that it describes as serious offences. It also says, in effect, that even those who commit serious offences can be made the subject of a sentence of imprisonment that is wholly suspended.

Such a sentence can only, however, be imposed in exceptional circumstances and when to…

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 DPP v Nestorowycz

Details

AGLC: Director of Public Prosecutions v Nestorowycz [2008] VSC 385
Case: [2008] VSC 385
Decision Date: 29 September 2008

CaseChat Overview and Summary

The Director of Public Prosecutions, as the appellant, sought a review of a sentence imposed on the respondent, Nestorowycz, in the Supreme Court of South Australia. The respondent pleaded guilty to an attempted murder charge, having stabbed her husband, who was suffering from dementia, in an incident that took place in 2018. The court sentenced her to two years and nine months' imprisonment, wholly suspended, based on exceptional circumstances. The Director of Public Prosecutions argued that the sentence was manifestly inadequate, particularly given the severity of the offence and the vulnerability of the victim. The central legal issue before the court was whether the sentence imposed was manifestly inadequate in light of the exceptional circumstances, particularly the respondent's mental health at the time of the offence.

The court considered the statutory provisions and case law regarding sentencing for attempted murder and the impact of exceptional circumstances. It was noted that the respondent suffered from a major depressive disorder at the time of the offence, which had significantly reduced her capacity to make appropriate decisions. Additionally, she had attempted to take her own life after the incident. The court emphasised the importance of taking into account the offender's mental state and the impact of exceptional circumstances when determining an appropriate sentence. It was held that the sentence was not manifestly inadequate, as the primary judge had given proper consideration to the exceptional circumstances and had imposed a sentence that was just and appropriate in all the circumstances.

The Supreme Court of South Australia dismissed the appeal, upholding the original sentence. The court found that the sentence imposed was not manifestly inadequate, as it had appropriately taken into account the respondent's mental health and the exceptional circumstances of the case. The court's reasoning demonstrated a balanced approach to sentencing, recognising the severity of the offence while also considering the impact of the offender's mental state and the mitigating factors present in the case.

Orders