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Supreme Court 12 November 2004

Regina v John Kiseljev

[2004] NSWSC 1030

Homicide
CRIMINAL LAW SENTENCING MURDER GUILTY PLEA PRISONER AGED 64

Citation: Regina v John Kiseljev [2004] NSWSC 1030
Court: Supreme Court of New South Wales
Date: 12 November 2004
Judge(s): Dunford J

Background

The prisoner, a 64-year-old Croatian-born man, pleaded guilty on arraignment to the murder of his wife, a 22-year-old Russian woman, at their home in Mount Druitt on 29 November 2002. The couple had married in September 2002, with the deceased's stated purpose being to obtain permanent Australian residency. The prisoner's children were not told of the marriage, as he knew they would not approve.

Following the wedding, the relationship deteriorated significantly. The prisoner described the deceased becoming verbally aggressive and demanding, keeping him awake, accusing him of theft, opening a bank account in her sole name with money he had obtained from his children, forging his signature on bank documents, and reselling their wedding rings. Police were called to the premises on two occasions before the fatal night.

In the early hours of 29 November 2002, the deceased returned home after midnight and banged on the door. After letting her in, the prisoner returned to his locked bedroom. The deceased yelled and kicked at his door for approximately 40 minutes. He then opened the door, a physical altercation ensued, and he struck her repeatedly and held a cloth over her mouth to stop her screaming. He then realised she had died. He informed his daughter and son-in-law and telephoned police, waiting at the house until they arrived.

  • What sentence was appropriate for a guilty plea to murder, having regard to the relevant aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999?
  • What discount, if any, was warranted for the guilty plea entered on arraignment?
  • Whether special circumstances existed justifying a variation in the standard ratio between the non-parole period and the head sentence under s 44 of the Act?
  • What weight should be given to the prisoner's age, prior good character, low risk of reoffending, and the degree of provocative conduct by the deceased?

Decision

Dunford J noted that the offence was committed before 1 February 2003, meaning that the amended provisions of s 44 did not apply, but s 21A as amended in 2002 did. The offence was a violent crime resulting in the loss of a human life, which the court treated as an aggravating feature. However, the court identified several mitigating factors. Although provocation was not formally raised as a partial defence, Dunford J was satisfied that the deceased's conduct amounted to a degree of provocative behaviour. The offence was not planned or premeditated, but rather an angry reaction to the events of that night.

The prisoner had no prior convictions and was assessed as a person of otherwise good character who was unlikely to reoffend. A forensic psychiatrist found no evidence of antisocial personality disorder and assessed the risk of reoffending as low to negligible, though recommending ongoing psychiatric care. The prisoner had shown genuine remorse, evidenced both by the guilty plea and by statements made to police and to the forensic psychiatrist.

Dunford J applied a 20 percent discount for the guilty plea, acknowledging both its utilitarian value and its indication of remorse and contrition. The plea was entered on arraignment on 5 March 2004, before the matter was set down for trial, which the court considered sufficient to warrant that discount.

The court found that the prisoner's age, prior good character, and low likelihood of reoffending together constituted special circumstances, justifying a variation in the ratio between the non-parole period and the head sentence as contemplated by s 44.

Orders Made

  • The prisoner was sentenced to imprisonment for 16 years, deemed to have commenced on 28 February 2003.
  • A non-parole period of 11 years was fixed.
  • The earliest eligible parole date was set at 27 February 2014.

Key Takeaways

  • Dunford J confirmed that provocative conduct by a victim can be recognised as a mitigating factor at sentencing for murder even where the partial defence of provocation was not formally raised at trial.
  • A guilty plea entered on arraignment, before the matter is set down for trial, can attract a 20 percent discount reflecting both utilitarian value and the expression of genuine remorse.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (in its pre-February 2003 form), a combination of advanced age, prior good character, and a low assessed risk of reoffending may together constitute special circumstances justifying a non-parole period that represents a lesser proportion of the head sentence than the statutory standard.
  • The absence of any prior criminal history, combined with a lifetime of stable employment and family responsibility, was accorded significant weight in mitigation alongside the guilty plea.
  • The court applied the version of ss 21A and 44 in force at the time of the offence, illustrating that the applicable sentencing framework turns on the date of the offending rather than the date of sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases cited: None cited in the provided text.