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District Court 7 August 2015

R v Brian Michael Magus

[2015] NSWDC 149

Assault & violence

Citation: R v Brian Michael Magus [2015] NSWDC 149
Court: District Court of New South Wales
Date: 7 August 2015
Judge: Mahony SC DCJ

Background

The offender, a young man in his early twenties living in the Fingal Bay area, pleaded guilty to wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900. The offence arose from a violent group attack on 2 August 2014 at residential premises in Fingal Bay.

The offender drove past the premises on two occasions and exchanged threats with two men he knew. On his second return visit, he came back with three other males, two of whom wore balaclavas and all of whom were armed with baseball bats or pieces of wood. The group forced entry into the premises, chased the victims into the front yard, and assaulted them. The older victim suffered serious injuries, including blows to his back, shoulder, head, and ankles from a metal bar and a lump of wood.

The offender also asked the court to take into account, by way of a Form 1 (a mechanism by which related offences are acknowledged and factored into the overall sentence without a separate conviction), a charge of specially aggravated break and enter with intent to commit grievous bodily harm.

Legal Issues

  • What was the appropriate sentence, having regard to the objective seriousness of the offending?
  • Did the offending involve relevant aggravating factors, including planning, use of a weapon, and commission of the offence in the victim's home?
  • What weight should be given to the offender's personal circumstances, including his traumatic background, psychological condition, and prospects of rehabilitation?
  • Was the offender entitled to a 25% utilitarian discount for his early guilty plea?
  • Did special circumstances exist under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify varying the standard ratio between the head sentence and the non-parole period?
  • Was an Intensive Corrections Order an appropriate alternative to full-time custody?

Decision

Objective seriousness of the offending

The court assessed the objective seriousness of the offending as approaching but below the mid-range for an offence under s 33(1)(a) of the Crimes Act 1900, describing it as a "brutal attack" led by the offender (at [28]). The court identified several aggravating factors under s 21A(2): planning, use of weapons, and commission of the offence at the victims' home (at [23]). While the offender's counsel characterised the threatening words used earlier as youthful bravado, the court accepted that characterisation only in part. The court noted the offender had ample opportunity to disengage but instead returned to the property twice, the second time with armed accomplices, reflecting deliberate, if briefly planned, conduct (at [30]).

Personal circumstances and mitigating factors

The court accepted that the offender had experienced significant personal hardship, including witnessing his mother's death from an asthma attack at age 13 and subsequent abuse from his father (at [12]). A psychologist reported clinically significant anxiety and depression, along with a recommendation for cognitive behavioural therapy focused on anger management (at [14]-[15]). However, the court noted that the account the offender gave to the psychologist of the offending did not accord with the Agreed Statement of Facts, reducing its value to the sentencing exercise (at [25]). The testimonials tendered on behalf of the offender did not demonstrate a clear understanding by their authors of the criminal conduct in question (at [16]).

Discount and special circumstances

Both parties agreed the offender was entitled to a 25% utilitarian discount for his early guilty plea (at [33]). The court found that special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 because the offender would require intervention in the form of anger management, justifying a variation of the usual ratio between the head sentence and the non-parole period (at [37]).

Intensive Corrections Order

The court declined to order an assessment for an Intensive Corrections Order. Under s 7 of the Crimes (Sentencing Procedure) Act 1999, such an order is not available where the period of imprisonment is likely to exceed two years. The court was satisfied the sentence would exceed that threshold and found full-time custody was the only appropriate sentencing response (at [35]).

Orders Made

  • The offender was convicted of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900.
  • A non-parole period of 15 months was imposed, commencing 22 May 2015 and terminating 21 August 2016.
  • A further period of imprisonment of 12 months was imposed, commencing 22 August 2016 and terminating 21 August 2017.
  • The offender is eligible for parole on 21 August 2016.
  • The court certified that the Form 1 offence (specially aggravated break and enter with intent to commit grievous bodily harm) was taken into account.

Key Takeaways

  • The District Court confirmed that returning to premises on multiple occasions with armed co-offenders, even over a short timeframe, can constitute sufficient planning to support an aggravating finding under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (at [30]).

  • A psychological report that contains an account of offending inconsistent with the agreed facts will carry reduced weight at sentence, particularly when the Crown argues the account minimises the offender's involvement (at [25]).

  • Special circumstances justifying a variation of the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be established where a sentencing court identifies a specific rehabilitative need, such as structured anger management intervention (at [37]).

  • Under s 7 of the Crimes (Sentencing Procedure) Act 1999, an Intensive Corrections Order is unavailable where the court assesses that the appropriate term of imprisonment is likely to exceed two years, regardless of other favourable factors such as work history or rehabilitation prospects (at [35]).

  • Where character testimonials do not demonstrate the author's awareness of the offender's criminal conduct, their mitigating weight is diminished (at [16]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Cahadi v R (2007) 168 ACrimR 41
- Pearce v R (1998) 194 CLR 610
- Veen v R No. 2 (1998) 164 CLR 465