R v Elie ZEILAA [2009] NSWSC 532

New South Wales Supreme Court

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

R v Borkowski [2009] NSWCCA 102 CASES CITED : 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 to do it. She made me do it. I swear to God I didn't want to do it. I pray to my God but I had to do it, she made me. Please don't tell my daughter it will kill her too. We have trouble for long time. She hit me. I say please don't do it. She always out. She have (sic) lots of sisters. Always out. I have nobody. I want to die". 4 The offender and his wife were married when she was aged 17 and he 23. In the later part of their marriage there were frequent arguments. Although the offender told Dr Nielssen, a psychiatrist who prepared a report on the issue of fitness, that he had never used violence against her, there are accounts from other persons in statements tendered before me indicating that he was both verbally and physically abusive to his wife. He appears to have been very domineering toward her and attempted to control her life to his benefit. 5 The offender is 73 years of age. He was born in Lebanon and came to Australia in 1969. He was a shoemaker. He has no criminal record. None of these subjective matters is of any particular weight in this case because of the undisputed evidence in relation to the offender's mental state at the time of the offence, his current mental state and its prognosis. 6 The offender is suffering from dementia, probably of the Alzheimer's type. That is the condition that was operative at the time of the stabbing, that is the condition that gave rise to a question as to his fitness to be tried and that is the condition that will dictate what happens to him as a result of the sentence imposed upon him. It seems that the dementia had been progressing for about a year before the stabbing. 7 Dr Allnutt was of the opinion that, at the time of the killing of his wife, the offender was probably manifesting signs and symptoms of dementia of "some degree of severity". The result was that there was a reduced capacity for the offender to inhibit his impulses. When he was seen by Dr McMahon in February of this year, the offender was in the "early to mid part of Stage 1 of the condition". After his arrest he was being treated by Dr Reutens a psychiatrist with Justice Health who specialises in such mental disorders. She was of the opinion that the offender was suffering from "mild cognitive impairment that would result in some defect in his ability to reason". He was in January of this year suffering problems with his memory, judgment and attention. It was these difficulties that gave rise to the issue of his fitness to be tried. 8 As to his prognosis, Dr McMahon stated: