R v Silva - [2015] NSWSC 148

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Silva [2015] NSWSC 148
Hearing dates: 6 February 2015
Decision date: 06 March 2015
Jurisdiction: Common Law
Before: Hoeben CJ at CL
Decision:
Offender sentenced to imprisonment for 18 months to commence on 6 March 2015 and to expire 5 September 2016. Such sentence is to be wholly suspended. The sentence be suspended on condition that offender be of good behaviour until 5 September 2016 and that offender be liable to be called up for sentence at any time within that period for any breach of this condition.

Catchwords: SENTENCE – manslaughter by excessive self-defence – offender and deceased in an abusive domestic relationship – threatening telephone calls made by deceased to offender on the day of the offence – physical assault by deceased on offender and members of her family – deceased stabbed during altercation with members of the offender’s family – exceptional circumstances – appropriate case for a suspended sentence.
Legislation Cited: Crimes Act 1900 – s 24
Crimes (Sentencing Procedure) Act 1999 - s, 3, s 21A, s 28(4)
Cases Cited: Berrier v R [2009] NSWCCA 40
R v Bogunovich (1985) 16 A Crim R 456
R v Hill (1980) 3 A Crim R 397
R v Isaacs (1997) 41 NSWLR 374
R v Kennedy [2000] NSWSC 109
R v Melrose [2001] NSWSC 847
R v Roberts (Hunt J, 31 August 1989, unreported)
Category: Sentence
Parties: Regina – Crown
Jessica Silva - Offender
Representation: Counsel:
Mr E Balodis - Crown
Mr G Scragg - Offender
Solicitors:
Director of Public Prosecutions - Crown
Moustafa Kheir - Offender

File Number(s): 2012/153148

SENTENCE

HIS HONOUR: On 13 May 2012 James Polkinghorne (the deceased) died as the result of a stab wound received to his chest. It was common ground that the offender, Jessica Silva, stabbed the deceased.
The offender was arrested on 13 May 2012 and subsequently charged with the offence of murder. She was in custody until 5 December 2012 when she was released on bail. She has been at liberty on conditional bail until the present time.
On arraignment the offender pleaded not guilty to the offence of murder and her trial for that offence commenced before myself and a jury of twelve on 12 November 2014. On 4 December 2014 the jury returned a verdict of not guilty of murder but guilty of manslaughter.
There was no agreement between the parties as to the basis on which the jury arrived at their verdict of manslaughter. The Crown submitted that the Court should find that the offender stabbed the deceased with an intention to kill, or to inflict grievous bodily harm, but that this was ameliorated because she believed her act was necessary to defend herself or some other person. In the alternative, the Crown submitted that the offender had stabbed the deceased with an intention to kill or inflict grievous bodily harm but that this intention had been ameliorated by provocation. The offender…

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 Silva

Details

AGLC: R v Silva [2015] NSWSC 148
Case: [2015] NSWSC 148
Decision Date: 06 March 2015

CaseChat Overview and Summary

The case of R v Silva involved the defendant who was charged with manslaughter. The dispute centred on the circumstances surrounding the death of the deceased, with the primary issue being whether the defendant's use of force was excessive in the context of self-defence. Both the defendant and the deceased were in an abusive domestic relationship, marked by a history of threats and violence. On the day of the offence, the deceased made threatening phone calls to the defendant, followed by a physical assault on the defendant and other family members. During an altercation, the deceased was stabbed, leading to his death. The court was tasked with determining whether the defendant's actions constituted excessive self-defence and whether the circumstances warranted a departure from the usual sentencing principles.

The legal issues before the court included assessing whether the defendant's use of force was proportionate in response to the threats and assaults faced, and whether the history of domestic abuse and the events leading up to the fatal incident constituted exceptional circumstances warranting a different sentence. The court had to consider the principles of self-defence and proportionality, as well as the broader context of domestic violence, in arriving at its decision. The defence argued that the defendant acted out of necessity due to the immediate and severe threat posed by the deceased.

The court found that the defendant's actions, while resulting in the death of the deceased, were a response to an immediate and severe threat in the context of an abusive relationship. The history of domestic violence, including the threats and assaults on the day of the incident, were deemed exceptional circumstances. The court concluded that a suspended sentence was appropriate, taking into account the defendant's background and the context of the offence. The court emphasised the need for a balanced approach that recognises the gravity of the offence while also considering the exceptional circumstances of the case.

Orders