Sydney abuse killing exceptional: judge

Jessica Silva was in the “agony of the moment” when, after years of abuse, she took the drastic step of stabbing her former partner five times.

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The case is so “exceptional” that despite manslaughter carrying a maximum of 25 years in prison, Justice Clifton Hoeben decided not to send her to jail.

James Polkinghorne died on Mother’s Day 2012 after Silva stabbed him in his back and head outside her parents’ Marrickville home in Sydney’s inner west.

The 25-year-old pleaded not guilty to his murder on the basis of self-defence but was found guilty of the lesser charge of manslaughter last year.

Throughout her trial the voice of her former partner filled the court room with haunting regularity.

Fortuitously, Silva’s phone was being tapped by police who were investigating Mr Polkinghorne over the shooting death of his associate Nikolas Argiropoulos months earlier.

What the recordings revealed was an angry young man increasingly fuelled by the drug “ice”.

Mr Polkinghorne had been abusive from an early point in their four-year relationship.

“While the incidents of physical abuse in the early years … appear to be sporadic, there was a significant escalation, particularly in physical abuse, towards the end of 2011 and during 2012,” Justice Hoeben said.

As Silva herself put it, “I dealt with it for so long, I thought I could change him”.

By the afternoon of his death the verbal abuse was coming in thick and fast.

“I’m going to cave your f***ing head in,” he spurted, adding an hour later, “I’m gonna break your f***ing jaw ‘cos you’re a dog.”

Silva, meanwhile, was highly emotional and increasingly fearful of what he might do when he got to her home.

Although Justice Hoeben was not satisfied Silva believed Mr Polkinghorne was going to kill her, he found she wanted to protect herself and her family from further violence.

As Mr Polkinghorne struggled with her brother and father outside, Silva went back inside the house and grabbed a knife from the kitchen.

She remembered stabbing him once, “maybe twice”.

“This act of violence was the outcome of her disturbed state of mind at the time and the particular events of the day,” Justice Hoeben said.

There was no doubt Silva, who broke down frequently during the trial and her sentence, was remorseful, he added.

She was not anti-social or violent, unlikely to reoffend, and the offence involved elements of self-defence and provocation, the court heard.

“Despite the offence involving the felonious taking of a human life, and the repugnance with which society views such an occurrence, there are in this case exceptional circumstances,” Justice Hoeben remarked.

“The offending was committed under extreme circumstances in the agony of the moment.”

He sentenced Silva to two years’ imprisonment from August 2014 but suspended it on the condition she be of good behaviour.

Silva held her head in her hands and wept after the sentence was handed down.

Outside court her family hugged and thanked her barrister Gregory Scragg.

“It’s now time to heal,” her lawyer Adam Houda told reporters.