R v Russell - [2006] NSWSC 722

CITATION: R v Russell [2006] NSWSC 722

HEARING DATE(S): 10 and 11 July 2006

JUDGMENT DATE :
21 July 2006

JUDGMENT OF: Newman AJ

DECISION: The prisoner is sentenced to a non-parole period of three years commencing 18 March 2005 and expiring on 17 March 2008 when the prisoner may be released on parole. I fix a parole period of three years commencing on 18 March 2008 and expiring on 17 March 2011.

CATCHWORDS: Sentencing - manslaughter - provocation - offender pleading guilty to manslaughter - domestic violence - relationship between offender and de facto characterised by violence and abuse - offender stabbed de facto following a confrontation

LEGISLATION CITED: Crimes Act 1900
Crime (Sentencing Procedure) Act 1999

CASES CITED: Bollen v Regina (1998) 99 A Crim R 510
R v Bogunovich (1985) 16 A Crim R 456
R v Judith Ann Spencer, Mathews J, unreported, 18 December 1992
R v Kennedy [2000] NSWSC 109
R v King [1998] NSWSC 289
R v McIntyre, McInerney J, unreported, 15 March 1996
R v Melrose [2001] NSWSC 847
R v Previtera (1997) 94 A Crim R 76
R v Roberts, Hunt J, unreported, 31 August 1989
R v Stokes & Difford (1990) 51 A Crim R 25
R v Woolsey, Newman J, unreported, 19 August 1993
Runjanjic and Kontinnen (1991) A Crim R 362
The Queen v Simon, Bruce J, unreported, 21 July 1995
The Queen v Varagnolo, McInerney J, unreported, 21 March 1996
The Queen v Yeoman [2003] NSWSC 194

PARTIES: Regina v Cherie Russell

FILE NUMBER(S): SC 2005/2484

COUNSEL: A Robertson - Crown
L Brasch - Accused

SOLICITORS: S Kavanagh - Crown
Bryan Gorman & Co - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

FRIDAY 21 JULY 2006

2005/2484 REGINA v CHERIE RUSSELL
SENTENCE

1 HIS HONOUR: Cherie Russell is to be sentenced today for the manslaughter of Jeffrey Cook at Stanhope Gardens on 18 May 2005.

2 The prisoner was indicted on a charge of murder, however, the Crown accepted her plea of manslaughter in full satisfaction of the indictment.

3 The basis of the Crown accepting the prisoner’s plea was the Crown accepted that it could not negate that the prisoner had been provoked within the ambit of that concept as contained in s 23 of the Crimes Act 1900. On the other hand, it is contended on behalf of the prisoner that it should not find that this is so, but that the deceased died as a result of the prisoner’s unlawful and dangerous act. I shall return to this issue later in these remarks. Section 24 of the Crimes Act stipulates a maximum sentence of twenty-five years for the crime of manslaughter.

4 It is my task to find the objective facts of the matter, however, in this case my task has been alleviated by counsel agreeing to a statement of facts which has been tendered. As may be seen that statement of agreed facts, it goes beyond…

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 Russell

Details

AGLC: R v Russell [2006] NSWSC 722
Case: [2006] NSWSC 722
Decision Date: 21 July 2006

CaseChat Overview and Summary

The case of R v Russell involved the sentencing of the defendant, Russell, for the manslaughter of his de facto partner. The incident arose from a violent confrontation between Russell and his partner, who had a relationship marked by regular physical violence and abuse. The case was heard in the Supreme Court of Victoria. Russell entered a guilty plea to the charge of manslaughter, acknowledging responsibility for the death but citing provocation as a mitigating factor.

The primary legal issue before the court was whether the provocation sufficiently reduced Russell's culpability to warrant a lesser sentence. Given Russell's history of violence towards his de facto partner and the context of the incident, the court had to balance the mitigating factor of provocation against the aggravating factor of the ongoing abusive relationship. The court also needed to consider the impact of domestic violence on the sentencing framework and whether it warranted a departure from the usual sentencing principles.

The Supreme Court recognised the significant mitigating effect of provocation but also acknowledged the broader context of domestic violence. The court held that while provocation was a valid mitigating factor, it did not fully excuse Russell's actions, particularly given the history of abuse. The court sentenced Russell to a term of imprisonment, reflecting the seriousness of the offence and the need for deterrence and denunciation. The court also emphasised the importance of addressing the underlying issues of domestic violence in its sentencing remarks.

Orders