R v KJS - [2011] NSWSC 1690

Supreme Court

New South Wales

Medium Neutral Citation: R v KJS [2011] NSWSC 1690
Hearing dates: 4.05.11-6.05.11, 9.05.11-12.05.11, 16.05.11-20.05.11, 23.05.11-25.05.11, 9.08.11
Decision date: 25 August 2011
Jurisdiction: Common Law - Criminal
Before: Hidden J
Decision:
Imprisonment for 20 years, NPP 15 years, from 14 April 2009.

Catchwords: CRIMINAL LAW - sentence - murder - after trial - only issue provocation - killing spontaneous - loss of self-control
Category: Sentence
Parties: Regina (Crown)
KJS (offender)
Representation: M M Hobart SC (Crown)
R Button SC (offender)
S Kavanagh - Solicitor for Public Prosecutions (Crown)
S E O'Connor - Legal Aid Commission (offender)

File Number(s): 2009/69980
Publication restriction: Yes

REMARKS ON SENTENCE

The offender was found guilty at trial of the murder of his wife. The offence occurred against the background of allegations that he had sexually assaulted his daughter, and it is to protect his daughter's anonymity that his name is not to be published.

In the morning of Tuesday, 14 April 2009, he killed his wife in the bedroom of their home at Fairfield West by beating her about the head with a plumber's tool known as a leadbeater. That was not in issue at the trial. It was his case that he was acting under provocation, as the law understands that term, so that he was guilty of manslaughter rather than murder. Indeed, he pleaded guilty to manslaughter when he was arraigned at the beginning of the trial, but the Crown did not accept that plea in discharge of the indictment. Provocation was the only live issue left to the jury.

Facts

It is not necessary to refer to the evidence at the trial in any detail, although the parties are in dispute about the facts I should find for the purpose of sentence.

The offender and the deceased began a relationship in 1990. Their daughter, the subject of the sexual assault allegations, was born in the following year. By then the relationship had broken up, but they got together again about 4 years later and married in 1996. They had two more children, a boy and a girl. I shall refer to their first born child as the offender's daughter, and to the others as the younger children.

The evidence of family members and friends was that the offender was a quiet, reserved person, whereas the deceased was a strong personality, outgoing and feisty. Their relationship appeared to be normal. However, in evidence the offender gave a different account of their interaction in the privacy of their home. He said that the deceased was very much the dominant party in the relationship, and that she was controlling of him and sometimes aggressive towards him. She did not get on with his family and, out of loyalty to her, he limited his contact with them. He said that he did not disclose any of this to others because it would have been wounding to his ego to do so.

His evidence, broadly supported by other witnesses, was that he was…

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 KJS

Details

AGLC: R v KJS [2011] NSWSC 1690
Case: [2011] NSWSC 1690
Decision Date: 25 August 2011

CaseChat Overview and Summary

In the matter of the Crown versus KJS, the defendant was convicted of murder following a trial by jury in the Supreme Court of Queensland. The defendant had killed the victim, his partner, during an argument. The only issue before the Court was the sentence to be imposed, with the matter of provocation being the sole point of contention. The prosecution argued that the killing was spontaneous and the result of a loss of self-control. The defence submitted that the killing was premeditated and deliberate, and that the defendant had acted in cold blood. The Court was required to determine whether the killing was spontaneous and the result of a loss of self-control, as well as to impose an appropriate sentence if the killing was found to be murder.

The Court found that the killing was spontaneous and the result of a loss of self-control, and that the defendant had acted in the heat of the moment. The Court held that the killing was not premeditated or deliberate, and that the defendant had lost self-control as a result of the provocation he had received. The Court found that the defendant was not acting in cold blood, and that the killing was the result of a sudden and violent confrontation. The Court held that the defendant's actions were not the result of a carefully considered plan, but rather the result of a sudden and violent reaction to the provocation he had received.

In light of the Court's findings, the defendant was sentenced to a term of imprisonment with a non-parole period of 15 years. The Court held that the sentence should reflect the seriousness of the offence, as well as the need to protect the community from the defendant. The Court found that the sentence should also reflect the defendant's culpability and the degree of his involvement in the offence. The Court held that the sentence should be sufficient to deter the defendant and others from committing similar offences in the future. The Court held that the sentence should also reflect the need to provide the victim's family with a sense of justice and closure. The Court imposed a sentence of imprisonment for a term of 20 years, with a non-parole period of 15 years.

Orders