R v Iskov

[2010] NSWSC 1074

CITATION:	R v Iskov [2010] NSWSC 1074
HEARING DATE(S):	10/09/2010, 15/9/10
JUDGMENT DATE :	29 September 2010
JUDGMENT OF:	Barr AJ at 1
DECISION:	Clayton John Iskov, for the malicious infliction of grievous bodily harm upon Kylie Petrina Iskov with intent to do so I sentence you to imprisonment. I set a non-parole period of 6 years, which will be taken to have commenced on 24 April 2008 and which will expire on 23 April 2014. The balance of the term of the sentence will be two years and will expire on 23 April 2016. For the aggravated taking and detaining of Kylie Petrina Iskov with intent to obtain an advantage I sentence you to imprisonment. I set a non-parole period of 7 years and 6 months, which will commence on 24 April 2011 and expire on 23 October 2018. The balance of the term of the sentence will be two years and six months and will expire on 23 April 2021. For the manslaughter of Kylie Petrina Iskov I sentence you to imprisonment. I set a non-parole period of 7 years and 6 months, which will commence on 24 April 2014 and will expire on 23 October 2021. The balance of the term of the sentence will be 4 years and 6 months and will expire on 23 April 2026. The first day on which you will become eligible for release to parole will be 23 October 2021.
CATEGORY:	Sentence
PARTIES:	Regina Clayton John Iskov
FILE NUMBER(S):	SC 2009/11046
COUNSEL:	C McPherson/R Rankin - Crown T Game/S Buchen - Offender
SOLICITORS:	S Kavanagh - Crown D Giddy - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

BARR AJ

MONDAY 20 SEPTEMBER 2010

2009/11046 REGINA v Clayton John ISKOV

REMARKS ON SENTENCE

A few days after the time that had been fixed for the trial of the offender, Clayton John Iskov, for the murder of his wife, Kylie Petrina Iskov, the offender pleaded guilty of offences that may be summarised thus -

1. On 6 August 2007 at Tweed Heads and elsewhere he took and detained Kylie Petrina Iskov without her consent and with intent to obtain an advantage, and at the time of the taking actual bodily harm was occasioned to her;
2. At the same time and place he maliciously inflicted grievous bodily harm upon Kylie Petrina Iskov with intent to do her grievous bodily harm; and
3. On 6 August 2007 near Mooball he unlawfully killed Kylie Petrina Iskov.

2 The indictment contained a further charge, namely that on 6 August 2007 near Mooball the offender murdered Kylie Petrina Iskov. To that charge the offender pleaded not guilty and the Crown accepted his pleas in discharge of the indictment.

3 The offence of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm attracts a maximum sentence of imprisonment for 25 years and a standard non-parole period of 7 years. The aggravated form of detaining for advantage attracts a maximum sentence of imprisonment for 20 years. The offence of manslaughter attracts a maximum sentence of imprisonment for 25 years.

The Facts

4 The parties agreed upon a statement of facts and the offender, at the request of the Crown, made formal admissions. The statement and the formal admissions were received into evidence. This account is taken principally from those documents. In about 1997 the offender, Clayton John Iskov, and the deceased, Kylie Petrina Iskov, entered into a domestic relationship together. They lived at the offender’s house in Inverell. He was a builder. There were problems in the marriage. Late in 2000 the offender admitted having had an affair and there was talk of a divorce. The couple decided to persevere with the marriage and moved to live first near and then in Tweed Heads. The offender carried on his business as a builder there. By 2004 the couple had two children but there was still discord. In 2006 the offender saw a naturopath and told her that he was depressed because he was having relationship problems. He said that they stemmed from an affair he had had five years earlier.

5 In May 2007 the deceased was reintroduced to a man to whom she had been engaged for a short time to be married. That engagement had been broken off before the deceased began her relationship with the offender. The deceased was willing to meet the man again with a view to commencing a relationship because she had by then decided that the marriage should be brought to an end. She had made other preparations to leave the offender.

6 During the same month the deceased told the offender that she wanted a divorce. He took the news badly and on occasions was seen to be emotional and weeping. The deceased and their children, who were by then three in number, moved out of the family home.

7 The offender became depressed and suspected that the deceased was seeing her former fiancé. Late in June he sought the help of a psychologist, Ms Saunders. He was upset at the separation and claimed to love his wife dearly. He said that he had asked her to reconcile but she would not. Ms Saunders noted that the offender felt “petrified and jealous of another man”.

8 During June, July and early August the offender spoke again to the naturopath, saying that he was depressed and grief-stricken over the breakdown of the marriage. He said that he was taking sleeping tablets and anti-depressants.

9 The offender began asking around whether the deceased were seeing her former fiancé. He made comments of a possessive nature about the deceased.

10 The deceased engaged a solicitor to advise her and told her that the offender had agreed to move out of the matrimonial home on Tuesday 7 August so that she could move back in with the children.

11 On 20 July the offender saw a general practitioner and obtained a letter referring him to the Mental Health Services of the North Coast Area Health Service. The referral said that he was moderately severely depressed with active suicidal ideation. On 25 July he was diagnosed with reactive depression. He had lost weight and was not sleeping well. He was concerned that the deceased might “walk away with about 60 per cent of my portfolio and have custody of the children”. The offender saw Ms Saunders on 26 July. Her notes include this “… foremost, losing Kylie, the kids, then money, himself somewhere in between. Feels he will never recover. Says he does not want to live. Has prescription re anti-depressants and sleeping tabs”.

12 On the same day the deceased’s solicitor wrote to the offender informing him that she acted for the deceased in relation to financial and property issues arising from the breakdown of the marriage, including the return of the matrimonial home to the deceased and the children.

13 The offender and the deceased met by arrangement on Wednesday 1 August to enable him to collect one of their children. The deceased had spent the previous weekend with her former fiancé. The offender made a thorough search of the car as he believed that she was seeing someone else and wanted evidence of it. The man concerned had purchased a jacket for her and the offender asked her where she had obtained the money to buy it.

14 On 3 August the offender told the naturopath that he felt like ending his life.

15 On 5 August the deceased told her former fiancé by text message that the offender was contacting her friends to find out where she was and whether she were seeing anyone else.

16 At about 8 am on Monday 6 August the deceased left the place where she was living, intending to take two of the children to schools in Tweed Heads and then to take her car to a business in Tweed Heads to have new tyres fitted. The appointment was for 9.30 am.

17 At 8.18 am the deceased spoke to the offender by telephone. Shortly afterwards the offender left his business, telling his secretary that he would be back soon. He walked away.

18 The deceased left the elder child at primary school and took the remaining child to a children’s centre and signed her in at 9.10 am. The deceased left the children’s centre intending to take her car to the tyre supplier. She did not arrive there.

19 There is no evidence of what the deceased and the offender said on the telephone before he left his place of work. It seems likely that they arranged to meet. They did meet, no later than about 9.10 am. The first of the formal admissions made by the offender states that about 9.10 am he entered the deceased’s car. It was at about that time that the offender committed the first of the offences of which he has pleaded guilty and began to commit the second, the detention.

20 According to the second of the offender’s formal admissions, he assaulted the deceased with a hard, blunt implement in the car soon after he had entered it. The offender states that as a result the deceased sustained multiple blunt force injuries to her head, left hand and left wrist, including bruising, swelling, lacerations and abrasions to the head and face. The assaults caused extensive bleeding from the head.

21 The Court was informed that there was an issue whether the offender attacked the deceased outside the car and the Court was informed that that was a matter of aggravation that had to be proved beyond reasonable doubt. The issue arose following the cross-examination in the Local Court of Detective Sergeant Flippence, an expert who spoke about blood pattern interpretation and the like. His opinion was that the distribution of blood found on the body and the clothing of the deceased and in the car did not result solely from any attack made within the confines of the car. It was Detective Sergeant Flippence’s opinion that the deceased must have bled significantly before she entered the car.

22 The parties were to be of the opinion that a conclusion that the attack also took place outside the car aggravated the offender’s criminality because it extended the time over which the attack took place. Another argument was that the offender had admitted to assaulting the deceased inside the car and not otherwise, so any assertion of a further assault aggravated the case and had to be proved beyond reasonable doubt.

23 The conclusion that the attack began before the deceased got into the car is not in my opinion one that has to be reached beyond reasonable doubt. It seems to be no more than one incident in the finding of facts the Court must make about the events of the attack. The argument that a finding about an attack outside the car would increase the period of time over which the attack took place, and therefore aggravate the offender’s criminality, does not necessarily succeed. The offender’s admissions are limited and do not describe everything that must have happened. Logically, they permit an attack outside the car after the attack inside it. Even if the attack began outside the car, and therefore took longer than the offender’s limited admissions imply, the additional time taken would be insignificant, especially in the light of the attitude of the parties that the offender was responsible for all the injuries occasioned to the deceased, whenever they were caused.

24 In any event, if such a conclusion could properly be made only beyond reasonable doubt, I would be satisfied on that standard of proof. The deceased was driving her car on her own business. She had an appointment. There is no evidence to explain why she would willingly leave the driver’s seat and take the passenger’s seat. Given her business that morning, there is every reason to think that she would not. This reasoning supports Sergeant Flippence’s opinion that there was an attack outside the car. I will not elaborate further save to say that on the whole of the evidence of Sergeant Flippence, including the contents of para 177 of his statement of 27 June 2008, his answers beginning at p 82 of the Local Court transcript and the photographs Exhibit G in this Court, I do not consider it reasonably possible that the distribution of blood upon the person and the clothing of the deceased and in the car could have resulted from an attack confined to the interior of the car.

25 It is not possible to say by what means the deceased entered the car or to differentiate between the injuries she received outside the car and any she received inside the car.

26 In his attack the offender struck the watch the deceased was wearing on her wrist, and it stopped at between 9.09 and 9.10 am. The resulting injury to the wrist was the actual bodily harm relied on by the Crown as aggravating the offence of detention.

27 The question arises whether the offender planned the attack. It is fanciful to suppose that the two met by chance. The offender left his place of work on foot. It seems likely that they met by arrangement not far from that place. By that time the offender had for weeks been showing by his words and his actions that he was depressed at the breakdown of the marriage, concerned about legal proceedings and the consequences for the joint matrimonial property, including the assets of his business, and the custody of the children, and that he was jealous of the man whom the deceased was seeing. On the very next day he was supposed to leave the matrimonial home so as to enable the deceased and the children to move back in. The combination of these facts might imply the formation of the intent to attack well ahead of the event.

28 On the other hand, it is recorded that when he left his place of work the offender told an employee that he would not be away long. It is not possible to say what the instrument was with which the offender attacked the deceased, but there is no evidence that he possessed such an instrument when he left work.

29 In my opinion the evidence does not enable a finding that the offender planned the attack other than for a short period of time, something less than an hour, immediately before its commencement.

30 Having had the deceased by some means sit in the front passenger seat of the car, the offender drove it away. For the next three and one-half hours he drove the car. This is the third of his formal admissions, viz:

For approximately the next 3 ½ hours the offender had control of the Holden Commodore. The offender drove the vehicle on various roads in the North Coast/Tweed Heads area. The offender did so in a state of confusion and in fear of the assaults being detected by others. The deceased was not at liberty to leave the offender’s company during this period.

31 I asked Mr Game of Senior Counsel for the offender what the offender intended to convey by the use of the words “in a state of confusion”. Mr Game informed the Court that those words meant not knowing what to do.

32 It seems unlikely that a car driven in that district for three and one-half hours would not at least once stop or travel so slowly as to enable a front seat passenger to leave the vehicle. I asked Mr Game to explain in those circumstances why the deceased was not at liberty to leave the offender’s company. He conceded that apart from the motion of the car at any time that must have been because she was incapacitated by the injuries the offender had inflicted upon her.

33 Shortly before 12.41 pm on the same day the car, driven by the offender, collided with a tree on the Tweed Valley Way at Mooball, some 40 kilometres south of Tweed Heads. The vehicle was travelling south at the time, away from Tweed Heads. The offender was found behind the steering wheel with his seat belt fastened and the airbag inflated. The passenger’s side was not fitted with an airbag. At 12.41 pm a registered nurse, Ms Judith Woodfield, came upon the scene. She saw the deceased slumped on the floor of the front passenger’s compartment with her legs folded down on the floor and her knees facing the driver. She was not wearing a seat belt. Her face was swollen and lacerated. She was comatose and her breathing was laboured. Her pulse was weak. Her condition deteriorated and she died before ambulance officers could attend.

34 The plea of guilty of manslaughter was offered and accepted as involuntary manslaughter by gross criminal negligence. The offender demonstrated a high degree of negligence and the disregard for a life and safety of the deceased through a combination of the following matters-

1. Failing to exercise his duty of care over the deceased by taking her to a hospital following the assault to receive prompt medical attention;
2. Driving the deceased around for a period of hours while she was in a vulnerable state and suffering from grievous bodily harm; and
3. Driving in a negligent manner, which included driving a distressed and injured passenger, failing to ensure that the deceased was wearing a seat belt and paying inadequate attention to the road conditions so as to cause the collision with the tree.

35 The evidence shows, and the parties agree, that the most probable cause of death was a fracture of the base of the skull, caused by the deceased’s impact with the windscreen.

36 The tyres which the deceased was intending to have fitted to the vehicle were never fitted, of course, but there is no suggestion that the existing tyres or any other feature of the vehicle played a part in causing the collision. The speed limit was 90 kilometres an hour and the road was straight. Investigating police detected a tyre track from the vehicle on the gravel shoulder but there was no sign that the car had skidded or any objective sign to explain why it should have left the bitumen surface and move towards the tree with which it collided. The estimated speed of the car at the time of impact was estimated by different officers as within the ranges 45 to 60 kilometres per hour and 40 to 70 kilometres per hour.

37 During the preparation of the trial for hearing I requested that the four pathologists who had been qualified, Professor Duflou, Professor Cordner, Dr Burke and Professor Lyons, prepare a joint report answering questions which counsel had drafted and I had approved. They agreed about the answers to those questions. Relying on those answers and other evidence which has not been the subject of controversy, the parties agree that these injuries were present immediately after the collision -

1. On the right side of the head was an almost vertical laceration with a short extension of abrasion type at the upper end. This injury was surrounded by bruising.
2. A laceration of the upper right forehead just extending into the forehead – this was just above injury No. 1.
3. An almost vertical apparently short laceration extending into the hairline just above and medial to injury No. 2.
4. An almost vertical laceration of the upper central forehead running backwards and slightly to the left and extending into the hairline.
5. An area of laceration of the lower central forehead of a rough star shape surrounded by a rim of bruising.
6. An area of irregular lacerations of the upper central left forehead almost extending into the hairline and surrounded by light bruising.
7. A series of oblique apparently superficial abrasions in the mid left forehead consisting of a series of parallel marks almost extending into the region of the hairline.
8. A laceration directly below the lateral two thirds of the left eyebrow.
9. An almost vertical laceration of the posterior lower left forehead at the level of the outer eyebrow, surrounded by some bruising.
10. An irregular area of laceration just in front of the upper part of the left ear.
11. An ill defined injury in the area of left ear in the position of the ear stud.
12. Ill defined injuries to the back of the left ear and skull, surrounded by bruising.

38 The parties are agreed that the sixth and seventh injuries must have resulted from the contact of the deceased’s head with the windscreen at the time of the collision. Otherwise, it is agreed that the injuries must have existed before the collision. They resulted from the assault carried out by the offender shortly after he met the deceased and at around the time when she came to be in the front passenger seat of the vehicle. They comprised a number of individual impacts to the left side of the head, to the right temple, to the forehead at various angles as far down as the eyebrows and as far up at least as the hairline. There was an impact to the nose, causing distortion, and damage to the chin. There was bruising to the eyes with marked swelling on the left and blackening on the right. The lips were swollen. The left cheek was bruised and swollen. The upper two thirds of the left ear were heavily bruised and swollen. The injuries were characteristic of impacts with a narrow, blunt-edged object. They had been applied from the left side, the right side, the front and the upper front of the head.

39 There was a series of abrasions, bruises and swelling on the hands, more prominently on the left, and there was a broken and chipped nail. Those injuries were inflicted as the deceased attempted to ward off repeated blows. With the exception of the wrist injury which I have already mentioned and the lacerations and abrasions resulting from contact between the deceased’s head and the windscreen, all the injuries I have mentioned are to be taken into account in the offence of inflicting grievous bodily harm with intent.

The Offender’s Motive

40 The offender’s difficulties stemmed from the breakdown of his marriage with the deceased and his fear of the consequences. His thoughts, which motivated his actions, were on a number of subjects. First, he was possessive of the deceased and jealous of the man she was seeing and he did not want to lose her to him. Secondly, he apprehended that the deceased would be awarded custody of the children. Thirdly, he feared the financial loss which he believed would result from a division of joint matrimonial assets which the court would order. He told Mr Contardo, one of the registered nurses at the Northern Rivers Area Health Service, that the deceased might “walk away with about 60 per cent of my portfolio and have custody of the children”. These thoughts and fears troubled him. He became depressed. He needed and sought help.

41 As Mr Contardo’s report makes clear, the offender was diagnosed as suffering from and treated for reactive depression. There were no thought disorder and no perceptual disturbance. He had insight into his condition. Nevertheless it continued to affect him. He was only getting two or three hours’ sleep per day. He had poor appetite. He lost ten kilograms in weight. He became obsessed with the prospects facing him. He was described as ruminating on the divorce. He lost interest in his business. He perceived risk of accident because of that. He had thoughts of suicide, though there is no report of any attempt at suicide.

42 I am satisfied that the offender attacked the deceased violently and without warning. The anger with which he did so grew out of his possessiveness, his jealousy and his anxiety about what he regarded as his prospective losses. At the same time he was suffering from the reactive depression for which he was being treated. But it is not enough merely to say that. There is no evidence to explain how or why his illness bore upon his intention to attack the deceased as he did. This is not a case where an attacker acted out of some unreasonable belief or compulsion. The offender had insight into his illness. The circumstances that faced him were of a kind that frequently face people in the community, people who do not resort to violence. Nevertheless, I am prepared to allow that his illness might in some unexplained way have affected his attitude and motivation. I shall accordingly bear this mind when imposing sentence, but the effect it can have is modest.

Matters Personal to the Offender

43 The offender is entitled to consideration for the manner in which he and his advisers have shown a preparedness to facilitate the administration of justice. In September 2009 he offered to plead guilty to a charge of maliciously inflicting grievous bodily harm with intent to do so. During the committal proceedings the defence made available to the Crown an important pathological report on the condition of the deceased and the probable cause of death, that of Professor Cordner, one of the witnesses who ultimately contributed to the joint expert report. At that stage it was made known that the offender was prepared to plead guilty of manslaughter. However, it was not until the receipt by the Court and the parties of the joint report of the four experts to which I have referred, in August 2010, that the Crown was prepared to receive the offer of the plea of guilty of manslaughter. It was at the suggestion of the defence that the parties consented to the preparation of the report. Until the receipt of the joint report the Crown was intending to advance a case including that the injuries deliberately inflicted by the offender before the collision substantially contributed to the death. It became apparent after the receipt of the report that death probably resulted from the fracture of the base of the skull, an injury sustained in the collision, and that the evidence did not establish that the deceased’s prior injuries substantially contributed to her death. After that change of attitude on the part of the Crown negotiations were carried on between the two sides, resulting in the plea of guilty of manslaughter. That made it necessary for the parties to formulate other ways in which the criminality of the offender in the collision itself as well as before the collision could be comprehended. It was not until there was a full formulation of the two charges antecedent to manslaughter that there could be pleas of guilty. In my view the matter was dealt with in a timely fashion on the part of the defence and all three pleas of guilty should be treated as having been offered at the earliest opportunity.

44 To recognise the utilitarian value of the pleas of guilty and the offender’s willingness to facilitate the administration of justice I shall discount his sentences by the maximum figure in the range generally applied.

45 The offender had not previously offended. He was a person of good character and well regarded by people who knew him. He had a reputation of being calm and not aggressive. There was evidence, which I accept, that he acted out of character in his attacks on the deceased. I doubt whether the offender is likely to re-offend and I think that he has reasonable prospects of rehabilitation.

46 The Court received seven character letters written by people who know the offender well. Some are his relatives. All speak about his personality and abilities and willingness to help. Six of the seven letters begin in identical form, listing the charges and observing that the offender has accepted responsibility by pleading guilty, but none mentions remorse. There is otherwise no expression of remorse of the offender. Mr Game did not submit that he was remorseful.

Assessment of the Seriousness of the Offences

47 The commission of the aggravated offence of taking and detaining the deceased for advantage began when the offender attacked her at about 9.10 am. The first act may have been the blow struck to the wrist that produced the soft tissue injury and damaged the deceased’s watch. That is the only harm relied on by the Crown as aggravating the offence. Although the offender commenced at the same time to inflict other injuries, they are not to be taken into account here. So seen, the injury which aggravated the offence was not of a serious kind.

48 The detention was effected for the most part by keeping the offender in a moving car. She would have been unable to escape while the car was moving at any speed. If there were other times, the disabilities she suffered at the offender’s hands would have prevented her from escaping.

49 The advantage the offender intended to obtain was to keep the deceased in his company so as to delay the detection by others of the assaults he had committed on her and her resulting injuries. Those assaults were committed contemporaneously with the commencement of the detention.

50 The period of the detention was about three and one-half hours. That was a long time in the circumstances.

51 The offender obtained his intended advantage and the deceased and the community were denied justice for the whole of the period of detention.

52 The deliberate and intentional infliction of grievous bodily harm began with the detention. All the injuries suffered by the deceased as described earlier in these remarks are to be taken into account under this second count other than the bruising to the wrist and the two injuries caused when the deceased’s head hit the windscreen. As the photographs show, the deceased suffered loss of blood. It was not great enough to lead to death by the time of the collision.

53 Mr Game submitted that the joint report of the pathologists showed that the injuries were not life threatening. What the experts agreed was that death probably resulted from an injury received in the collision and that the evidence did not establish that the injuries not attributable to the collision were a substantial cause of death. The latter answer was given in the knowledge of the time and cause of death. The experts were not asked to say what the results of the prior injuries might have been if there had been no collision. They were not asked to comment on blood loss or what might have resulted from the deceased’s head injuries if the collision had not happened. The supervening collision and its consequences have more or less masked the prior condition and likely prognosis of the deceased.

54 All that can be confidently said, I think, is that the injuries deliberately inflicted by the offender did not substantially contribute to her death. It is possible to surmise that their effects would have become more serious as time went by if the deceased had survived and had been left untreated, but to take the matter further would be speculative. Neither could one speculate on the effect of the injuries on the mind of the deceased if she had lived.

55 In my opinion the injuries, which were mainly to the head, were very serious.

56 The injuries were inflicted when a strong man took up a hard, blunt instrument – only the offender knows what – and beat a woman many times about the head from a number of different angles. By any standard the attack was vicious and merciless. The efforts of the deceased to defend herself were ineffectual.

57 The offender’s criminality was aggravated by his use of the weapon.

58 But for the offender’s plea of guilty and his expressed willingness to facilitate the administration of justice, I would have regarded his offence as falling a little above the mid-range of seriousness of offences of its type. As it is, I shall impose a non-parole period a little below the standard non-parole period of seven years.

59 The collision of the car with the tree was caused by the gross criminal negligence of the offender. The deceased died of injuries she received in the collision, by far the most serious of which was the fracture of the base of the skull. Her injuries were received when the deceased, unrestrained by any seat belt, was thrown forward when the car suddenly stopped. The offender demonstrated a high degree of negligence and a disregard for the safety of the deceased in that he failed to exercise his duty of care over the deceased by taking her to a hospital following the assault so that she could receive prompt medical attention, kept her in the car for a period of hours while she was in a vulnerable state and suffering from grievous bodily harm and drove in a negligent manner, which included driving a distressed and injured passenger, failing to ensure that the deceased was wearing a seat belt and paying inadequate attention to the road conditions so as to cause the collision with the tree.

60 The negligent driving of the car immediately before the collision was not of a particularly high order. There was no excessive speed and no evidence of other misbehaviour. It is not to be assumed that the collision with the tree was deliberate. However, the negligent manner of driving at the time was aggravated by the offender’s failure to ensure that his passenger was wearing a seat belt. And when one adds the other failures by the offender to exercise his duty of care towards the deceased that I have described above his offence must be seen as a serious one of its kind.

Concurrency

61 The offender and the victim are the same in each of these offences. The events all happened within a period of hours. Except for the offender’s negligence in failing to control the car immediately before it collided with the tree and in failing to ensure that the deceased was wearing a seat belt, all his actions were deliberate and committed with the same motive. There needs therefore to be a substantial degree of concurrency in the sentences.

62 Apart from that general need, the Court must recognise that aspects of the offender’s negligence in manslaughter contemplate acts committed during the three and one-half hours during which the offender detained the deceased. The deceased’s state of distress and vulnerability resulted from the infliction of injury, predominantly the injury referable to the offence of the malicious infliction of grievous bodily harm, but also in a minor way to the actual bodily harm inflicted at the commencement of the taking and detaining. The offender was able to maintain the detention because of the incapacity of the deceased, resulting from the grievous bodily harm from which she was suffering.

The Period Available for Parole

63 I propose partially to accumulate the sentences, and that will produce the need to vary the prima facie relationship between non-parole and parole periods for one of them. It was submitted that in addition there were other features personal to the offender which constituted special circumstances so as to justify a period of availability for parole which exceeded one-third of the total effective non-parole period. They were that the offender has no prior history of offending and that this will be his first time in custody, that he was in an extreme emotional state at the time, that he has good prospects of rehabilitation and that he has on remand behaved himself and has been kept in high security in view of the nature of the charge of murder which was until recently outstanding against him.

64 In my opinion these features do not individually or in combination justify any further adjustment of the relationship between non-parole and parole periods. The absence of a prior criminal history, the fact that these will be the first sentences the offender will serve and his emotional state at the time of the events giving rise to the charges are all matters which I shall take into account in fixing head sentences, and the offender should not have the benefit of them a second time in any further reduction of the non-parole period.

65 The offender seems now to be in good health and there is no suggestion that his service of his sentences will be any more difficult for him on account of his state of health. I would not without evidence conclude that the offender will serve his sentence in future under any particularly onerous conditions on account of the need for security.

Victim Impact Statements

66 The Court received Victim Impact Statements written by Mrs Pamela Nay, the deceased’s mother, Mr Robert Nay, her father, and by Mrs Kimberley Kritzinger, Mrs Tamara Hegedus and Mrs Tania Burke, her sisters. The deceased’s parents and sisters read those statements. In doing so they told the Court about the love they had for the deceased and about the effects upon them of her death. They have all suffered greatly now for a long time and will continue to suffer.

67 I know that they have been informed that the Court is not permitted to take into account in imposing sentence any effect that the death of their daughter and sister has had upon them. What the Court can do, however, and what it does do, is extend its sympathy to Mr and Mrs Nay, Mrs Kritzinger, Mrs Hegedus and Mrs Burke in their loss. The Court acknowledges their suffering and hopes that when these proceedings are done with they may find some peace of mind.

The Sentence

68 My intention is to impose sentences which individually comprehend the offender’s criminality for each offence and which in totality comprehend the totality of his criminality. The overall sentence is intended to incorporate a non-parole period which comprises three-quarters of its term. The first sentence will be taken to have commenced on 24 April 2008, the day of the offender’s arrest.

69 Clayton John Iskov, for the malicious infliction of grievous bodily harm upon Kylie Petrina Iskov with intent to do so I sentence you to imprisonment. I set a non-parole period of 6 years, which will be taken to have commenced on 24 April 2008 and which will expire on 23 April 2014. The balance of the term of the sentence will be two years and will expire on 23 April 2016.

70 For the aggravated taking and detaining of Kylie Petrina Iskov with intent to obtain an advantage I sentence you to imprisonment. I set a non-parole period of 7 years and 6 months, which will commence on 24 April 2011 and expire on 23 October 2018. The balance of the term of the sentence will be two years and six months and will expire on 23 April 2021.

71 For the manslaughter of Kylie Petrina Iskov I sentence you to imprisonment. I set a non-parole period of 7 years and 6 months, which will commence on 24 April 2014 and will expire on 23 October 2021. The balance of the term of the sentence will be 4 years and 6 months and will expire on 23 April 2026.

72 The first day on which you will become eligible for release to parole will be 23 October 2021.

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