R v SJK and GAS - [2002] VSC 94

Griffin

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1433 of 2001

THE QUEEN

SJK AND
GAS

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2001, 25 February and 8 March 2002
DATE OF SENTENCE:	3 April 2002
CASE MAY BE CITED AS:	R v SJK and GAS
MEDIUM NEUTRAL CITATION:	[2002] VSC 94

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Criminal law – Sentencing – Manslaughter – Court unable to determine role of each of 2 accused – Sentenced as aiders and abettors of each other – Youthful offenders – Youth training inappropriate – Special arrangements for gaol sentence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser	Office of Public Prosecutions
For the Accused (SJK)	Mr. D. Drake	Victoria Legal Aid
For the Accused (GAS)	Mr. A. Shwartz	Dowling & Jones

HIS HONOUR:

Shortly after 9.00 am on Monday 16 October 2000 the body of an elderly woman was found in the bedroom of her home in the bayside suburb of Seaford. The woman was Marie Zidan, 73, who lived with her 47 year old son Peter Greening. Peter Greening was intellectually disabled as a result of brain damage suffered in a near drowning incident in 1981.

At the time of her death Marie Zidan was a frail invalid pensioner. She suffered from diabetes. She had osteo-arthritis of the hip and knee. Her mobility was restricted and she walked with the assistance of a walking frame. She and her son relied upon outside attendant carers to help look after them and the house in which they lived. A number of victim impact statements filed by members of Mrs Zidan’s family attest to the regard in which she was held by her friends and family and the devastating loss which has been suffered by them as a result of her death.

It was one of the carers who looked after Mrs Zidan and her son who found her body in her ransacked bedroom. When she was found she was lying on her right side, on the floor at the side of her bed. Her face was bloodied and it was obvious that she had been beaten around the head. She was wearing a petticoat, short sleeved top and a windcheater. The windcheater had been pulled over her head. Her arms were still in the sleeves. She was partly covered with a doona. Small household items covered the deceased and a large number of items were scattered around the bedroom floor. Her mattress had been upturned. A blood stained cushion was located at the foot of the bed.

Subsequent autopsy revealed that Mrs Zidan had died as a result of asphyxia caused by manual neck compression or choking and that she had multiple areas of blunt trauma to her head, chest, back and pubic region. The pathologist who conducted the autopsy could not rule out that she was smothered. An open jar of a medicinal preparation called Magnaplasm was found on top of her pubic…

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: [2002] VSC 94
Decision Date: 3 April 2002

CaseChat Overview and Summary

In the case of R v SJK and GAS, the accused were before the court following their conviction for manslaughter. The dispute centred on the appropriate sentencing to be imposed on the two individuals, given the circumstances of the crime and the difficulty in ascertaining the precise role each played in the incident. The case was heard in the Supreme Court of the relevant jurisdiction.

The primary legal issues the court had to address were the determination of the correct sentencing principles applicable to the case, particularly given the uncertainty around the specific contributions of each accused to the manslaughter. The court needed to consider whether the accused should be sentenced as principal offenders or as aiders and abettors, and how this uncertainty should influence the severity of the sentences imposed. Additionally, the court had to consider the age of the accused, the appropriateness of a youth training order, and the suitability of special arrangements for a gaol sentence.

The court found that due to the inability to ascertain the exact role of each accused, it was appropriate to sentence them as aiders and abettors of each other. Given their youthful age, the court ruled that a youth training order was not suitable for either offender. Instead, the court determined that special arrangements for a gaol sentence would be the most appropriate form of punishment. The court emphasised the need for a sentence that balanced the gravity of the offence with the offenders' age and potential for rehabilitation.

The court ordered that the accused be sentenced to a term of imprisonment with specific conditions to ensure their rehabilitation and reintegration into society, reflecting the special considerations required for youthful offenders in such circumstances.

Orders