Regina v John Kiseljev - [2004] NSWSC 1030

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v John Kiseljev [2004] NSWSC 1030

CURRENT JURISDICTION:

FILE NUMBER(S): 70113/03

HEARING DATE{S): 21 May 2004

JUDGMENT DATE: 12/11/2004

PARTIES:
Regina v John Kiseljev

JUDGMENT OF: Dunford J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
W L Robinson QC - Crown
P J O'Donnell - Prisoner

SOLICITORS:
S Kavanagh - Crown
Beilby Wager, Solicitors - Prisoner

CATCHWORDS:
Criminal Law - Sentencing - murder - guilty plea - some degree of provocative conduct by victim - prisoner aged 64

ACTS CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
Sentenced to imprisonment for 16 years with a non-parole period of 11 years

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
FRIDAY 12 NOVEMBER 2004
70113/03 REGINA v JOHN KISELJEV
SENTENCE

HIS HONOUR: The prisoner has pleaded guilty on arraignment to the murder of his wife, Nadejda Zassoukhina on 29 November 2002.
It appears that following the death of his first wife from cancer in 1987, the prisoner met and befriended the deceased, who was a young Russian woman in this country on a student visa. They went out socially a few times and had sexual intercourse once before the deceased moved in with the prisoner to his house at Mount Druitt on 8 August 2002. Subsequently, she told him that her visa was due to expire and she suggested they marry so that she could obtain permanent residency and ultimately become an Australian citizen, the suggestion being that they would live together as husband and wife for two years to satisfy the Immigration Department. That such was her intention is confirmed by statements contained in the Brief of Evidence made by the deceased to her friend, Min Yuan, to Lucy Ivacheff, the welfare officer at the Russian Ethnic Community Centre, and to Constable Allen on 24 October 2002 and by the prisoner to Chief Inspector Ross on 26 October 2002.
They were married on 23 September 2002 in the presence of the prisoner’s sister and brother-in-law, but his own children were not told of the marriage because he knew they would not approve. He was at the time 64 years old and the deceased was 22 years old. I note that the deceased complained to Ms Ivacheff about the prisoner on 10 and 16 September, prior to their wedding.
According to the prisoner (and the deceased is not here to tell her side of the story), after the wedding everything changed, sexual intercourse ceased and they occupied separate bedrooms. She became very demanding as to her domestic requirements, forced him to drive her to and from her place of employment and accused him of stealing her papers. He in turn accused her of stealing his mail and removing other items from his bedroom. She said she needed to be able show that she had the resources to finance her proposed university studies so the prisoner obtained…

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 Regina v John Kiseljev

Details

AGLC: Regina v John Kiseljev [2004] NSWSC 1030
Case: [2004] NSWSC 1030
Decision Date: 12 November 2004

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of Regina v John Kiseljev involved the sentencing of the accused for the murder of his partner. The accused, who had pleaded guilty to the charge, was 64 years old at the time of sentencing. The court was required to consider various factors, including the presence of provocative conduct by the victim, in determining the appropriate sentence.

The primary legal issue before the court was to determine the appropriate punishment for the accused, taking into account the nature of the crime and the mitigating factors present. Specifically, the court had to assess the degree of provocation by the victim, if any, and its impact on the severity of the sentence. Additionally, the court needed to consider the age and health of the accused, as well as the principles of deterrence and rehabilitation in the sentencing process.

In delivering the judgment, the court acknowledged the significant mitigating factors, including the age of the accused and the presence of some degree of provocative conduct by the victim. However, the court emphasised the gravity of the offence and the need to maintain public confidence in the justice system. After weighing these considerations, the court determined that the appropriate sentence was imprisonment, with a non-parole period of 17 years. This decision reflects a balanced approach, recognising both the mitigating circumstances and the serious nature of the crime.

Orders