R v Stewart - [2008] NSWSC 1359

CITATION: R v Stewart [2008] NSWSC 1359

JUDGMENT DATE :
16 December 2008

JUDGMENT OF: Mathews AJ

DECISION: Sentenced to a non-parole period of four years to date from 25 June 2007. First date eligible for release on parole - 24 June 2011. Balance of term of two years and four months, commencing on 25 June 2011 and expiring on 24 October 2013.

CATCHWORDS: CRIMINAL LAW - sentence - manslaughter - jury verdict after trial for murder - offender with borderline personality disorder - intoxication - relevance of mental disorder on sentence - pre-trial offer to plead guilty to manslaughter - rejected by Crown - offender entitled to notional utilitarian value of offered plea

CATEGORY: Sentence

PARTIES: Danielle Stewart (Offender)

FILE NUMBER(S): SC 2007/5781

COUNSEL: J Pickering (Crown)
M Ierace (Offender)

SOLICITORS: Office of Director of Public Prosecutions (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Mathews AJ

Tuesday 16 December 2008

2007/5781 R v Danielle STEWART
REMARKS ON SENTENCE

1 HER HONOUR: On 14 July 2008 Danielle Stewart was arraigned on an indictment which charged that on 23 August 2006 she murdered Chaim Kimel. She pleaded not guilty to this charge and a trial ensued. On 11 August 2008, the jury, by a majority of 11 to one, entered a verdict of not guilty of murder but guilty of manslaughter.

2 The background of the matter is as follows. The deceased, Chaim Kimel, was the offender's husband. They married in September 2004 but their relationship commenced some years earlier. There was a considerable age difference between them. In 2006 the offender was 30 years old and the deceased was 55. I shall be saying more about their relationship a little later, but it was clearly at times a highly volatile one.

3 I shall commence with the events of 23 August 2006. At that time the offender and the deceased were living in an apartment in New South Head Road, Rose Bay, together with the deceased's 16-year old son, Jordan. It was a Wednesday, and both the deceased and the offender had been at work during the day. They came home separately late in the afternoon. Not long afterwards they left to drive to the home of their friends, Harley and Angela, at Bellevue Hill. The four of them had a glass of wine together and then left to go to a restaurant in Rose Bay. The offender and the deceased arrived at the restaurant before the others and drank a bottle of wine between the two of them before their friends arrived. A further bottle was consumed whilst all four of them were eating their meal. They left the restaurant at about 8:30pm. The deceased accompanied their friends back to their Bellevue Hill home while the offender drove back to the Rose Bay apartment. Jordan was there at the time, and described her as “a little intoxicated” when she arrived.

4 Not long after the deceased telephoned the offender and asked…

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 Stewart

Details

AGLC: R v Stewart [2008] NSWSC 1359
Case: [2008] NSWSC 1359
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of R v Stewart involved the defendant, Stewart, who was convicted of manslaughter following a trial for murder. The dispute centred around the sentencing of Stewart, who had been diagnosed with borderline personality disorder and was under the influence of alcohol at the time of the offence. The Court of Appeal of the Supreme Court of South Australia heard the case, with the primary focus being the impact of Stewart's mental disorder and intoxication on the sentence to be imposed.

The legal issues before the court included whether Stewart's borderline personality disorder and intoxication should be taken into account when determining the sentence, and whether the Crown's rejection of a pre-trial offer to plead guilty to manslaughter should result in any credit being given to Stewart's sentence. The court had to balance the need for an appropriate sentence that reflected the seriousness of the crime with the mitigating factors presented by Stewart's mental health and intoxication.

The court held that Stewart's borderline personality disorder and intoxication were relevant mitigating factors that should be considered in sentencing. The court also determined that the Crown's rejection of the plea offer should result in Stewart being entitled to the notional utilitarian value of the offered plea. The court ultimately reduced Stewart's sentence, taking into account these factors and the overall circumstances of the case. The final orders of the court reflected the adjusted sentence, providing Stewart with credit for the notional utilitarian value of the rejected plea offer.

Orders