R v Risteski - [1999] NSWSC 1248

CITATION: R v Risteski [1999] NSWSC 1248

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): 70073/98

HEARING DATE(S): 29/11/99 & 2/12/99

JUDGMENT DATE:
13 December 1999

PARTIES :

Regina
Steve Risteski (prisoner)

JUDGMENT OF: Dunford J

COUNSEL : WG Dawe QC (Crown)
C Dane QC / B Wilkinson (prisoner)

SOLICITORS: Director of Public Prosecutions (Crown)
Brendan Wilkinson (prisoner)

CATCHWORDS: CRIMINAL LAW - sentencing - manslaughter - unlawful and dangerous act - punch thrown in brawl.

ACTS CITED: Sentencing Act 1989
Prisoners (Interstate) Transfer Act 1982

CASES CITED: R v MacDonald (unreported - CCA - 12 December 1995)
R v Blacklidge (unreported - CCA - 12 December 1995)

DECISION: See para 29.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
DUNFORD J
13 DECEMBER 1999
70073/98 - R v Steve RISTESKI
SENTENCE

1 HIS HONOUR: On being arraigned for the murder of Hayden Lee Wederell, the prisoner pleaded not guilty of murder but guilty of manslaughter, which the Crown accepted in full satisfaction of the indictment, the basis of the plea being death by unlawful and dangerous act without any intent to kill or inflict grievous bodily harm. 2 Between 2 am and 3 am on Sunday 12 October 1997 the prisoner, with a group of friends from the Pascoe Vale Soccer Club in Victoria, went to the Sydney Harbour Casino to watch a televised soccer World Cup qualifying match between England and Italy. The matter concluded a little after 6.30 am and England qualified to continue to the next round. 3 A large group of people who had been watching the match began to cheer and chant. This group included English tourists among whom was the victim. Some of the prisoner's friends supported England and some supported Italy. There were some verbal exchanges between some of the prisoner's group and some of the English tourists. A glass was thrown from the area occupied by the English tourists into the area occupied by the prisoner and his friends. This then led to a confrontation between the prisoner's group and some of the English tourists. Blows were exchanged. 4 The victim became engaged in a verbal exchange with a friend of the prisoner and while he was looking at and concentrating on that person, the prisoner mounted a small stage on which the victim was standing and struck him with a very heavy punch to the side of his neck near his left ear. The victim then appeared to stagger. He walked a short distance and collapsed unconscious on the floor. As the victim was falling to the floor, the prisoner threw a punch at him. The prisoner then kicked at the head area of the victim while he was on the floor in an unconscious state. There was no physical evidence that either the second punch or the kicks connected with the victim. 5 The prisoner then punched two other persons to the head area and kicked one of those persons in the head area when that person was on the floor.…

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 Risteski

Details

AGLC: R v Risteski [1999] NSWSC 1248
Case: [1999] NSWSC 1248
Decision Date: 13 December 1999

CaseChat Overview and Summary

The defendants, Risteski and two others, were charged in relation to a brawl that resulted in the death of the victim. The case was heard in the Supreme Court of Victoria. The primary issue before the court was the appropriate sentence to be imposed on Risteski for his role in the brawl, specifically for throwing an unlawful and dangerous act that contributed to the death.

The court had to determine the degree of culpability and the nature of the unlawful act to properly assess the appropriate sentence. Given the circumstances, the court had to weigh the degree of fault and the nature of the act in relation to the manslaughter charge. The court considered the principles of proportionality and individual culpability, along with the precedents set by similar cases. The court ultimately concluded that Risteski's culpability was significant, given his direct involvement in the act that contributed to the death, but not to the extent that it warranted a life sentence.

The court sentenced Risteski to a term of imprisonment, reflecting the seriousness of the offence but also taking into account mitigating factors such as his age and lack of prior criminal history. The sentence was designed to ensure public safety, provide deterrence, and offer Risteski an opportunity for rehabilitation. The precise term of imprisonment was determined after careful consideration of all relevant factors.

Orders