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Supreme Court 3 March 2000

R v Rita Rose Kirkwood

[2000] NSWSC 184

Homicide
CRIMINAL LAW AND PROCEDURE SENTENCING MANSLAUGHTER IMPULSIVE

Citation: R v Rita Rose Kirkwood [2000] NSWSC 184
Court: Supreme Court of New South Wales
Date: 3 March 2000
Judge(s): Bell J

Background

The prisoner, a 63-year-old part-Aboriginal woman, was charged with the murder of her long-term partner following an incident at her home in Rutherford on 29 June 1998. The pair had maintained a volatile relationship marked by heavy alcohol use and episodes of mutual physical violence. The deceased had previously given the prisoner two black eyes and had at some point been subject to a court order restricting him from approaching her home.

On the evening in question, an argument erupted after the prisoner returned home with her son and sister. The deceased became verbally abusive, threw a metal stool at the prisoner, and then retrieved a large kitchen knife. The prisoner took the knife from the deceased by gripping the blade, and in the confrontation that followed she poked the knife at his chest, inflicting a single fatal stab wound 15 centimetres deep.

The prisoner pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full discharge of the indictment.

  • What sentence was appropriate for an impulsive manslaughter committed in the context of a volatile, alcohol-fuelled relationship and significant provocation by the deceased?
  • Whether the circumstances warranted the exceptional step of imposing a non-custodial sentence for manslaughter.
  • Whether special circumstances existed under s 5(2) of the Sentencing Act 1989 to justify extending the additional term beyond the standard ratio.

Decision

Bell J found that the stabbing was an impulsive act in response to a stressful and threatening situation created by the deceased. The prisoner had not wielded the knife aggressively at the outset; she had taken it from the deceased to neutralise his threat. The subsequent stabbing occurred in circumstances that, while fatal, reflected a spontaneous rather than deliberate act of violence.

Her Honour considered a range of strong subjective factors in the prisoner's favour. These included her age (63 years, a first-time custodial sentence), her part-Aboriginal background and the relevance of principles from R v Fernando, a difficult personal history marked by multiple bereavements, her son Gary's dependence on her care, significant health issues, intellectual limitations, and genuine remorse.

Despite those mitigating factors, Bell J concluded that a non-custodial sentence was not appropriate. Drawing on the Court of Criminal Appeal's observations in R v MacDonald, her Honour noted that manslaughter involves the felonious taking of human life and that the denunciatory and protective functions of sentencing must be observed even in cases of considerable personal sympathy. A custodial term was required.

Bell J found special circumstances under s 5(2) of the Sentencing Act 1989, citing the prisoner's intellectual and health difficulties alongside her age and the fact that this was her first custodial sentence. This justified an additional term exceeding one-third of the minimum term.

Orders Made

  • Minimum term of 12 months imprisonment, commencing 3 March 2000 and expiring 2 March 2001.
  • Additional term of 18 months, commencing 3 March 2001 and expiring 2 September 2002.

Key Takeaways

  • Even where an offender reacts impulsively to provocation created by the deceased, and strong mitigating circumstances exist, manslaughter ordinarily demands a custodial sentence given the denunciatory and protective functions of criminal sentencing.
  • A non-custodial sentence for manslaughter remains available only in exceptional cases; strong subjective factors, including age, personal hardship, and genuine remorse, did not alone bring this case within that exceptional class.
  • Under s 5(2) of the Sentencing Act 1989, special circumstances may be established where an offender faces a first custodial sentence at an advanced age and presents with intellectual limitations and significant health issues.
  • The principles articulated in R v Fernando regarding the sentencing of Aboriginal offenders were applicable and considered, though they did not displace the requirement for a custodial term.
  • Where a deceased's provocative and threatening conduct initiates a fatal confrontation, that fact operates as a significant mitigating consideration going to the length of the sentence rather than its nature.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 5

Cases:
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Wright (unreported, NSWCCA, 28 February 1997)
- R v Vachalec (1981) 1 NSWLR 351
- R v Edwards (1996) 90 A Crim R 510
- R v Fernando (1992) 76 A Crim R 58
- R v MacDonald (unreported, NSWCCA, 12 December 1995)