Regina v John Kiseljev
[2004] NSWSC 1030
•12 November 2004
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:
- 6 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONDUNFORD 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 $15,000 from one of his children which he believed was to be deposited in a joint account, but in fact the account was opened in her sole name at St George Bank on 30 September 2002. There was also a dispute over a sum of $1,400 which she claimed he had taken from her and she subsequently took his bank books and attempted to obtain money from his bank by forging his signature. She re-sold their wedding rings to the jeweller for vouchers worth $250.
She did not come home every night and when she did, she argued with the prisoner and kept him awake, accusing him of stealing her papers and other things. Ultimately he put a barrier, and subsequently a lock on his own bedroom door and kept food, drink and a bucket for urinating at night in his room to avoid being confronted by her.
The police were called to the premises on two separate occasions prior to the deceased’s death. On 24 October 2002 at about 11:20pm, they were called following a verbal argument over money. The deceased was happy to remain at the house that night.
Two days later (26 October), police were called again about midday. The prisoner complained that the deceased had broken a window of the premises. She agreed she had, but said it was because the prisoner had locked her out of her room, and so she had broken the window to gain access and she complained to Constable Dunn that he had assaulted her and purported to show the bruises, but Constable Dunn could see nothing. She said she was leaving and did so, but returned about an hour later when the police were again called and the prisoner complained that she would not give him any peace or let him sleep. She eventually left the premises on that occasion.
According to the version given to police in his recorded interview on 29 November 2002 following his arrest, the prisoner was at home by himself about 10:30pm when he went to bed to go to sleep. The deceased arrived home at about 12:37am and banged on the door to be let into the house. The prisoner got up, let her in and returned to his bedroom where he locked the door and went back to bed, after which the deceased spoke, yelled and kicked at his bedroom door for about 40 minutes. He then opened the door, shook her by the arms asking her to desist, whereupon she stepped into his bedroom and a scuffle followed during which the prisoner kneed the deceased in the stomach. They both fell to the bedroom floor, he again put his knee into her stomach and hit her on the head. It appears the deceased was screaming, and in order to stop that he put a cloth over her mouth and held it there. He got her shoe and hit her over the head with the heel of the shoe numerous times and shortly after he stopped he realised that she was dead. He had a drink of water, a cigarette and a shower. About 3am went to the home of his daughter and son-in-law, which was a granny flat in the backyard of his house, and told them what had happened. He then telephoned Mount Druitt Police Station and at their request, waited at the house until they arrived shortly afterwards.
The photos of the deceased taken at the scene and at post-mortem revealed multiple and extensive injuries to her head and body and the post-mortem examination showed severe bruising to the head and body, a broken nose, her fourth, fifth and twelfth ribs on the right side were broken, her bowel was bruised, there was a haemorrhage around the left kidney and a small amount of patchy subarachnoid haemorrhage to the brain. The cause of death was blunt trauma to the head and trunk, and asphyxia. An examination of the prisoner disclosed 8 lacerations to his right forearm and a fracture of the fifth finger on his right hand, and he complained of a painful right hand, thus indicating the violence of his attack.
It appears that the prisoner, as was his custom, had been drinking port wine prior to the fatal attack, and may have been slightly or moderately affected by alcohol, although urine analysis taken later did not disclose the presence of anything of significance.
At the committal proceedings, the possible defence of provocation was tested, but on arraignment, he pleaded guilty to murder and has since adhered to such plea.
The prisoner is now aged 66 and was born in Croatia. He last saw his father when he was aged 4 during World War II and he believes his father may have been killed during that conflict. His family left Croatia when he was very young and, after travelling through Italy after the War, they lived in a camp in Austria until 1949 when he was 11 years old and they came to Australia. He had two brothers and three sisters, the youngest died whilst they were in Austria, his eldest brother is now deceased and the three remaining siblings remain in Australia.
He was educated in Europe and in Australia and left school at the age of 15 ½. He worked all his life in manual employments, largely as a concreter, until he retired in 1996. He was married at the age of 26 to an Anglo-Australian woman who died in 1988 at the age of 48 from emphysema or cancer after a marriage of 25 years which produced three sons and two daughters. He gets on well with all his children and they are all supportive of him. There are also a large number of neighbours and other associates who have furnished character references.
The overall impression that one gets from all of this was that he has been a good husband, father and grandfather with strong family ties, has worked hard all his adult life, has raised his family to a situation where they are all settled and married, he nursed his first wife during her last distressing illness and has no prior history of violence or any other form of criminal conduct, apart apparently for some traffic matters.
All the family and character witnesses who have since learned of his second marriage say that after that, his attitude changed, he became withdrawn and distressed, and some of them were aware that he and the deceased were having arguments. The relationship was clearly unsuitable and dysfunctional and there does not seem to be any doubt that the motivation for the so called “marriage” was to assist the deceased with her application to remain in Australia, and it does not appear to have been a real marriage in any sense of the word. None of these matters however can excuse his responsibility for her death.
The whole incident is a tragedy from the point of view of the deceased and of her aged Russian parents who have lost their only child, and also a tragedy for the prisoner, who after a fruitful and comparatively happy life, finds himself in his present predicament, and for his family who now have to cope with a situation which they never anticipated.
The prisoner was examined by Dr Westmore, psychiatrist, who considered that he was suffering from depression with a moderate to severe adjustment disorder due mainly to the fact that he was facing the charge. He found no evidence of an antisocial personality disorder and considered the risks of him re-offending were low to negligible, but that his long term psychiatric prognosis should be considered cautiously, and he recommended ongoing psychiatric care. He suggested that on the night of the killing, the prisoner was overwhelmed by feelings of frustration and anger towards the deceased because of her alleged behaviour to him after they were married.
The offence having been committed prior to 1 February 2003, s 21A applies as amended by the 2002 amendment Act, but the amendments affected by that Act to s 44 do not apply. In relation to s 21A, the offence was a violent crime resulting in the loss of a human life; but there were a number of mitigating factors including that, although the partial defence of provocation was not raised, I am satisfied there was a degree of provocative conduct on the part of the victim. The offence was not planned or premeditated but was an angry response to the actions of the deceased.
The applicant has no previous convictions, is otherwise a person of good character and is unlikely to re-offend. He has shown remorse for the offence by his plea of guilty and also in his recorded interview with police and in his interviews with Dr Westmore. Not only is his plea of guilty in the present case evidence of remorse and contrition but he is also entitled to a significant discount for its utilitarian value. It was not a plea at committal, but was entered on arraignment on 5 March 2004 before the matter was set down for trial, and I consider that a discount of 20 percent is appropriate in respect of all elements of the plea including its utilitarian value. I am also satisfied that the prisoner’s age, his prior good character and unlikelihood of him re-offending constitute special circumstances justifying a variation in the ratio provided for by s 44.
The prisoner was arrested on 29 November 2002 and admitted to bail 5 days later. He was arraigned on 5 March 2003 when he pleaded guilty and bail was refused, and he has been in custody since that date. The sentence will accordingly be backdated 5 days prior to 5 March 2003, namely 28 February 2003.
JOHN KISELJEV, for the murder of Nadejda Zassoukhina, I sentence you to imprisonment for 16 years, such sentence to be deemed to have commenced on 28 February 2003 and I fix a non-parole period of 11 years. The earliest date on which you will be eligible for release on parole will be 27 February 2014.
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LAST UPDATED: 12/11/2004
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