Jessica Silva outside the Supreme Court after being sentenced for the manslaughter of her ex-partner James Polkinghorne. Photo: Peter RaeJessica Silva has joined the ranks of a small proportion of people who avoid jail despite being found guilty of killing another person.
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But she could have been another statistic. On average, one woman is killed every week in Australia by their current or former partner. And Silva’s estranged de-facto husband, James Polkinghorne, was becoming increasingly abusive as his drug-taking escalated.

In May 2012, the unemployed 28-year-old was smoking and dealing methylamphetamine, also known as ice, and it made him paranoid, delusional and aggressive.

He was suspected of the murder of a drug rival, Nikolas Argiropoulos, who was shot in the face and dumped at Ballast Point Park, Birchgrove, two months earlier. He had a gun, which he had shown Silva. And he was distressed that she had finally ended the relationship and moved out of the flat they shared and back in with her parents at Marrickville.

Silva, 22, was terrified of him but did not report the physically abusive or threatening behaviour to the police, telling her brother Miguel she thought there was little they could do.

In an interview with police hours after she stabbed Polkinghorne to death, Silva gave another insight as to why she put up with domestic violence for so long.

“I dealt with it for so long, I thought I could change him,” she told detectives in the early hours of May 14, 2012.

Silva was charged with murder and spent 29 weeks behind bars on remand before she was granted bail, on which she remained throughout her trial in November 2014.

The following month a NSW Supreme Court jury found her not guilty of murder but guilty of the lesser charge of manslaughter.

In sentencing Silva on Friday, Justice Clifton Hoeben found she did not intend to kill Polkinghorne when she stabbed him five times outside the Livingstone Road home.

When he arrived about 9pm in an ice-fuelled rage shouting “I’m going to f…ing kill her”, Silva and her brother tried to calm him down.

That afternoon and evening he had made multiple calls to Silva – fortuitously recorded by police investigating Mr Argiropoulos’s murder – saying “I’m gonna cave your f—ing head in”, “I’m coming to get you” and “I guarantee I’ll bash as many people as I can before they arrest me”.

Justice Hoeben said Silva would have become increasingly fearful as the taxi carrying Polkinghorne got closer to her house. Then when he arrived, he punched her in the face and ripped her pants before getting into a struggle with Miguel and her father Avalino Silva and she became “highly emotional and hysterical”. She went inside the house and retrieved a large kitchen knife before returning to the middle of the road where Polkinghorne was on top of Miguel. She stabbed him five times in the shoulder and neck.

Justice Hoeben concluded Silva intended to cause Polkinghorne grievous bodily harm but she acted partly in self-defence and partly to protect Miguel and Avalino.

“The death was committed under extreme circumstances in the agony of the moment,” Justice Hoeben said.

He said the jury’s verdict indicated that they found her action “was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence”.

He said offenders convicted of manslaughter could only avoid jail “in the most exceptional case” and Silva’s case fell into that category.

“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 which significantly ameliorate the seriousness of what occurred.”

He sentenced her to two years’ imprisonment wholly suspended and backdated to 11 August 2014.

Outside the court, Silva’s lawyer Adam Houda said, “There’s no winners in tragedy.”

“My client has had to endure the most extreme forms of physical, verbal and psychological abuse and, in that light, the sentence imposed today was the appropriate one, considering the extraordinary circumstances of this case,” he said.

“It’s now time to heal.”