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R v Cahill (No. 4)

R v Cahill (No. 4)

Case [2018] NSWSC 1896 12 December 2018

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Cahill (No. 4) [2018] NSWSC 1896
Hearing dates: 1 November 2018, 2 November 2018, 9 November 2018, 13 November 2018
Date of orders: 12 December 2018
Decision date: 12 December 2018
Before: Johnson J
Decision:
For the manslaughter of David Walsh at Padstow between 17 and 18 February 2017, Cathrina Ann Cahill is sentenced to imprisonment for a period of eight years comprising a non-parole period of five years commencing on 18 February 2017 and expiring on 17 February 2022 with a balance of term of three years commencing on 18 February 2022 and expiring on 17 February 2025.
The earliest date upon which the Offender will be eligible for release on parole is 18 February 2022.

Catchwords: CRIMINAL LAW - sentence - manslaughter - substantial impairment by abnormality of mind - depressive disorder - Offender killed victim by single stab wound to the neck - domestic violence - stabbing occurred after violent acts by victim towards another person and Offender - history of violence by Offender and victim towards each other during two-year relationship - Offender on good behaviour bond at time of killing for earlier offence of violence against victim - assessment of factors relevant on sentence for manslaughter - assessment of objective gravity of offence - favourable subjective circumstances of Offender - good prospects of rehabilitation
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: Browning v R [2015] NSWCCA 147
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Hiron v R [2007] NSWCCA 336
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
Pasinis v R [2014] VSCA 97
R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
R v Hill (1981) 3 A Crim R 397
R v Kristensen [2018] NSWCCA 189
R v Malott (1998) 1 RCS 123
R v MD (2005) 156 A Crim 372; [2005] NSWCCA 342
R v Merrick (No. 2) [2016] NSWSC 164
R v Nguyen [2005] NSWSC 600
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Stambolis (2006) 160 A Crim R 510; [2006] NSWCCA 56
R v Tarrant [2018] NSWSC 774
R v Toki (No. 3) (2000) 116 A Crim R 536; [2000] NSWSC 999
Tepania v R [2018] NSWCCA 247
Veen v The Queen (No. 2) (1988) 164 CLR 456; [1988] HCA 14
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 4
Texts Cited: Hopkins, Carline and Easteal, “Equal Consideration and Informed Imagining: Recognising and Responding to the Lived Experiences of Abused Women Who Kill” (2018) 41 Melbourne University Law Review 1201
Category: Sentence
Parties:

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 R v Cahill (No. 4)

Details

AGLC: R v Cahill (No. 4) [2018] NSWSC 1896
Case: [2018] NSWSC 1896
Decision Date: 12 December 2018

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, Cahill, who was convicted of manslaughter. The respondent had killed his partner by stabbing her in the neck following a violent altercation between the two. The respondent and the deceased had a history of domestic violence towards each other. The court was required to assess the sentence imposed on the respondent, taking into account the objective gravity of the offence and the subjective circumstances of the respondent. The court also had to consider the good prospects of rehabilitation of the respondent.

The legal issues before the court were whether the sentence imposed was manifestly excessive, whether the trial judge had given adequate consideration to the factors relevant to the sentence, and whether the court had failed to give adequate weight to the favourable subjective circumstances of the respondent. The court also had to consider whether the trial judge had failed to properly assess the good prospects of rehabilitation of the respondent.

The court found that the sentence imposed was not manifestly excessive, and that the trial judge had given adequate consideration to the relevant factors. The court found that the trial judge had properly assessed the good prospects of rehabilitation of the respondent and had given appropriate weight to the favourable subjective circumstances of the respondent. The court held that the sentence imposed was appropriate and did not need to be varied.

The court dismissed the appeal against sentence and upheld the sentence imposed by the trial judge. The respondent was sentenced to a term of imprisonment of eight years, with a non-parole period of five years and three months.

Orders