R v Zeilaa - [2009] NSWSC 532

CITATION: R v Elie ZEILAA [2009] NSWSC 532

HEARING DATE(S): 20/03/2009, 29/05/2009

JUDGMENT DATE :
12 June 2009

JUDGMENT OF: Howie J at 1

DECISION: The offender is sentenced to a term of imprisonment made up of a non-parole period of 2 years 6 months and a balance of term of 2 years 4 months. The sentence is to commence on 11 February 2008 and the non-parole period expires on 10 August 2010.

CATCHWORDS: Criminal Law - Sentence - Manslaughter - substantial impairment due to the effects of dementia - stabbed wife to death - offender aged 76 - Plea of guilty after found fit to plead - effects of dementia on sentence - discount for plea in exceptional case.

CATEGORY: Sentence

CASES CITED: R v Borkowski [2009] NSWCCA 102
Tazelaar v R [2009] NSWCCA 119
R v Dib [2003] NSWCCA 117

PARTIES: Regina v Elie Zeilaa

FILE NUMBER(S): SC 2008/10106

COUNSEL: M Cunneen SC - Crown
P Winch - Offender

SOLICITORS: S Kavanagh - Crown
S O'Connor - Offender

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

HOWIE J

FRIDAY 12 JUNE 2009

2008/10106 REGINA v Elie ZEILAA
REMARKS ON SENTENCE

1 HIS HONOUR: The offender was charged that on 11 February 2008 he murdered his wife. He was committed for trial to this Court. However shortly thereafter a question arose as to his fitness to be tried. On 20 March 2009, after hearing evidence from a number of psychiatrists, I determined that he was fit to plead to an indictment charging him with murder although he might not have been fit to stand trial on that charge. As a result the offender was immediately re-arraigned on that date and pleaded guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment. The parties agree that the manslaughter offence is based upon the offender’s responsibility for the killing being substantially reduced by his mental disorder.

2 There was a statement of facts tendered. On 11 February 2008 an argument arose between the offender and the deceased, during which the deceased indicated that she was thinking of leaving him. The offender went to his bedroom and took up a hunting knife from a bedside drawer. He returned to the kitchen where he repeatedly stabbed the deceased. There were 19 wounds inflicted upon her.

3 The offender, while still holding the knife, walked outside his house and yelled, “I killed her, I killed her, I killed the bitch, call the police, call the police”. A neighbour dialled triple 0. When police arrived the offender was still standing outside with the knife. He put down the knife when told to do so. He said, “I think she’s dead. I want her dead. I wanted to kill her.” Later he told police, “I don’t (sic) want to do it, she made me. I want to die.” He was arrested and taken to a police station. During the journey he said, “I don't (sic) want…

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 Zeilaa

Details

AGLC: R v Zeilaa [2009] NSWSC 532
Case: [2009] NSWSC 532
Decision Date: 12 June 2009

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Zeilaa involved a 76-year-old man who pleaded guilty to the manslaughter of his wife, who was suffering from dementia. The court had to consider the defendant's age and mental health, particularly the impact of dementia on his culpability and sentencing. The primary legal issue was the extent to which the defendant's dementia should mitigate his sentence, and whether his plea of guilty warranted any additional discount.

The court examined the principles of sentencing in cases involving substantial cognitive impairment and the effect of dementia on the offender's capacity to form intent. It considered whether the defendant's dementia should lead to a substantial discount in the sentence, as well as whether the discount for a plea of guilty should be applied in light of the exceptional circumstances of the case. The court also had to weigh the seriousness of the offence against the mitigating factors presented.

After careful consideration, the court concluded that the defendant's dementia did substantially impair his capacity to form intent, warranting a significant discount in the sentence. The court further found that the plea of guilty, despite the defendant's cognitive impairments, was an exceptional circumstance that warranted an additional discount. The sentence was ultimately determined to reflect these mitigating factors, while still appropriately addressing the gravity of the offence.

The court ordered that the defendant be sentenced to a term of imprisonment, with the sentence being subject to a substantial discount due to the defendant's dementia and an additional discount for the plea of guilty in exceptional circumstances.

Orders