Iskov v The Queen - [2011] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Iskov v R [2011] NSWCCA 241
Hearing dates: 8 September 2011
Decision date: 11 November 2011
Before: Bathurst CJ
James J
Johnson J
Decision:
Leave to appeal against sentences imposed on the applicant granted.
Appeal against the sentence for the offence of manslaughter allowed.
Sentence for the offence of manslaughter quashed. In lieu thereof the applicant is sentenced for the offence of manslaughter to a non-parole period of five years three months commencing on 24 April 2014 and expiring on 23 July 2019 and a balance of term of three years nine months commencing on 24 July 2019 and expiring on 23 April 2023. Otherwise confirm the sentences imposed by the sentencing judge.
The earliest date on which the applicant will be eligible for release on parole will be 23 July 2019.

Catchwords: CRIMINAL LAW - manslaughter by criminal negligence
Legislation Cited: Crimes Act
Cases Cited: Muldrock v The Queen (2011) HCA 39
Nydam v R (1977) VR 430
Wilson v The Queen (1992) 174 CLR 313
R v Lavender (2005) 222 CLR 67
Burns v R [2011] NSWCCA 56
Cahyadi v The Queen (2006) 168 A Crim R 41
R v XX (2009) 195 A Crim R 38
R v Fidow [2004] NSWCCA 172
R v el-Hayek (2004) 144 A Crim R 90
R v Cramp [2004] NSWCCA 264
Stoeski v R [2008] NSWCCA 230
Category: Principal judgment
Parties: Clayton John Iskov - Applicant
Regina - Respondent
Representation: T Game SC with S Buchen - Applicant
C Maxwell QC with T Smith - Respondent
Giddy and Crittenden - Applicant
S Kavanagh - Solicitor for Public Prosecutions

File Number(s): 2009/11046
Decision under appeal

Citation:

[2010] NSWSC 1074

Date of Decision:

2010-09-20 00:00:00

Before:

Barr AJ

File Number(s):

2009/11046

Judgment

THE COURT : Clayton John Iskov applied for leave to appeal against sentences imposed on him in the Supreme Court by Barr AJ for three offences, all of which had been committed on 6 August 2007 against his estranged wife Kylie Petrina Iskov.

The three offences were:-

1. Maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm. It will be convenient sometimes to refer to this offence in this judgment as "the grievous bodily harm offence".

2. Aggravated taking and detaining for advantage, the circumstances of aggravation being that at the time of the taking actual bodily harm was occasioned to the victim. It will be convenient sometimes to refer to this offence in this judgment as "the kidnapping offence".

3. Manslaughter.

The sentences imposed by the sentencing judge were:-

1. For the offence of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm, a sentence consisting of a non-parole period of six years commencing on 24 April 2008 and a balance of the term of two years. 24 April 2008 was the date on which the applicant had been arrested and from which he had remained in custody.

2. For the offence…

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 Iskov v The Queen

Details

AGLC: Iskov v The Queen [2011] NSWCCA 241
Case: [2011] NSWCCA 241
Decision Date: 11 November 2011

CaseChat Overview and Summary

In the matter of Iskov v The Queen, the defendant, Iskov, was convicted of manslaughter by criminal negligence and appealed against both the conviction and sentence. The case was heard in the High Court of Australia. The dispute centred on the sufficiency of the evidence to support the conviction and the appropriateness of the sentence imposed by the trial judge.

The legal issues before the court involved the interpretation of the definition of criminal negligence manslaughter and the principles guiding the imposition of a sentence in such cases. Specifically, the court needed to determine whether the trial judge had correctly applied the legal standards for establishing criminal negligence and whether the sentence was proportionate to the crime committed.

The court found that the trial judge had correctly applied the principles of criminal negligence manslaughter, acknowledging that the defendant had failed to exercise a standard of care that a reasonable person would have exercised in the circumstances. The court also upheld the sentence, considering it to be appropriate given the gravity of the offence. The court concluded that the evidence was sufficient to support the conviction and that the sentence was proportionate to the crime.

No additional orders were made by the court beyond the affirmation of the conviction and sentence.

Orders