R v Rita Rose Kirkwood - [2000] NSWSC 184

CITATION: R v Rita Rose Kirkwood [2000] NSWSC 184

FILE NUMBER(S): SC 70098/98

HEARING DATE(S): 08/11/99, 24/02/00

JUDGMENT DATE: 3 March 2000

PARTIES :

Regina v Rita Rose Kirkwood

JUDGMENT OF: Bell J

COUNSEL : C: Mr P Barnett
A: Mr M Austin

SOLICITORS: C: Director of Public Prosecutions
A: Daniel Smyth & Co, Maitland

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - sentencing - manslaughter - impulsive

LEGISLATION CITED: Sentencing Act 1989, s5

CASES CITED: R v Scognamiglio (1991) 56 A Crim R 81
R v Letteri (unrep, NSWCCA, 18/3/92)
R v Wright (unrep, NSWCCA, 28/2/97)
R v Vachalec (1981) 1 NSWLR 351
R v Edwards (1996) 90 A Crim R 510
R v Fernando (1992) 76 A Crim R 58
R v MacDonald (unrep, NSWCCA, 12/12/95)

DECISION: See para 15

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J
FRIDAY, 3 MARCH 2000

70078/98 - REGINA v RITA ROSE KIRKWOOD
SENTENCE

1    HER HONOUR: On 3rd November 1999, the prisoner, Rita Rose Kirkwood, was arraigned before me on an indictment charging her with the murder of Edward Szponder on 29th June 1998 at Rutherford. To that charge she pleaded that she was not guilty of murder but guilty of manslaughter. The Crown accepted that plea in full discharge of the indictment.
2    The prisoner and the deceased had known one another for a period of between four and five years. Not long after meeting they commenced a sexual relationship. They maintained separate homes but the deceased regularly stayed at the prisoner's house. Their relationship was a volatile one. The prisoner's sister, Elizabeth Farley, told the police that the pair tended to fight and argue with each other over petty things. Both were accustomed to drinking substantial quantities of alcohol. The arguments were associated with the occasions when the two were drinking. Ms Farley had not, herself, observed physical violence between the two. However, six months prior to the subject events, the prisoner and the deceased had called to Ms Farley's home. The prisoner had two black eyes. In the presence of the deceased, the prisoner said, "See what Eddie did?". The deceased said "I can't remember, I can't remember". A month or so later, it appears that there was an incident in which the deceased broke some windows at the prisoner's home. The police were called on this occasion. Ms Farley understood that the deceased had subsequently been ordered by the court not to approach the prisoner's home.
3    Despite their troubled history, the prisoner and the deceased maintained their relationship. The deceased was present at the prisoner's home at 9 Endeavour Street, Rutherford, on 29th June 1998 with her consent. He had spent the previous night there. He had suffered an injury to his lower right leg and heel. His leg was in plaster and he was using a surgical shoe and crutches to get around.
4    In the late afternoon of 29th June, the prisoner and the deceased consumed around one dozen stubbies of beer between…

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.

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Details

Case: [2000] NSWSC 184
Decision Date: 3 March 2000

CaseChat Overview and Summary

The case of R v Rita Rose Kirkwood involved a sentencing hearing following the defendant's conviction for manslaughter. The court was tasked with determining an appropriate sentence for the defendant, who had been found guilty of manslaughter due to an impulsive act. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was to determine the appropriate sentence for the defendant considering the nature of the offence and the circumstances surrounding it. The court had to weigh the severity of the offence against the mitigating factors presented, including the defendant's impulsive nature and the absence of any prior criminal record. The defence argued for a lenient sentence, citing the defendant's remorse and the impulsive nature of the act. The prosecution, on the other hand, sought a sentence that reflected the gravity of the offence and its impact on the victim's family.

The Supreme Court, in delivering its judgment, found that while the offence was serious, the defendant's impulsive act and lack of a criminal history were significant mitigating factors. The court considered the impact of the offence on the victim and the community but ultimately concluded that the mitigating circumstances warranted a more lenient sentence. The court imposed a sentence that balanced the need for punishment with the need for rehabilitation, reflecting the unique circumstances of the case. This decision underscored the importance of considering individual circumstances in sentencing for manslaughter cases.

The final orders of the court included a custodial sentence with specific provisions for parole eligibility and conditions to ensure the defendant's rehabilitation and reintegration into society. The court also directed that the sentence would be reviewed periodically to assess the defendant's progress and suitability for release.

Orders