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7
Supreme Court 29 March 2019

R v Magro

[2019] NSWSC 343

HomicideFirearms & weapons
CRIMINAL LAW TRIAL FOR MURDER EXCESSIVE SELF DEFENCE USE OF FIREARM DURING VERBAL ARGUMENT SINGLE SHOT TO CHEST OF DECEASED

Citation: R v Magro [2019] NSWSC 343
Court: Supreme Court of New South Wales
Date: 29 March 2019
Judge: Wilson J

Background

The offender was tried for the murder of a 20-year-old man, shot once in the neck and killed on Remembrance Day, 11 November 2016. The jury returned a verdict of not guilty of murder but guilty of manslaughter, on the basis of excessive self-defence. The offender was also convicted of firing a firearm near a public place.

The events arose from a dispute that escalated over two consecutive days. The day before the shooting, the offender had chased the deceased's younger brother in the street. In retaliation, the deceased and his brother attacked and kicked the offender that same evening, causing visible injuries. The following day, the offender and associates vandalised the deceased's family home. When the deceased learned of the damage, he gathered friends and walked toward the offender's home.

The offender discharged a single shot that killed the deceased. The court found that the offender deliberately fired the gun and believed he needed to act in self-defence, but that the force used vastly exceeded any genuine or perceived threat. The offender initially gave police a false account denying any knowledge of a firearm, then gave a second account claiming self-defence, which the court largely rejected as self-serving.

  • What facts could be established consistently with the jury's verdict of manslaughter by excessive self-defence?
  • What weight should be given to the offender's credibility, given two significantly inconsistent accounts to police?
  • What aggregate sentence was appropriate for the manslaughter and the firearms offence, having regard to the maximum penalties, objective seriousness, and relevant mitigating and aggravating factors?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) so as to justify a non-parole period below the standard one-third ratio.

Decision

Wilson J rejected the offender's second account to police as largely inconsistent with independent evidence and characterised both versions as self-serving lies. Her Honour accepted only that the offender deliberately fired the weapon and, at the time, believed it was necessary to act in self-defence. The court preferred the evidence of independent witnesses and footage of the shooting over the accounts of the offender and his mother, whose evidence was set aside entirely as neither truthful nor accurate.

The court conducted a careful sentencing exercise within the framework established by Gilson v The Queen, Markarian v The Queen, and Elias v The Queen, treating the statutory maximum penalties as a yardstick. Her Honour noted the significant objective seriousness of the offence: a lethal firearm was used during what was essentially a verbal confrontation, and the force employed vastly exceeded any perceived threat.

On the question of special circumstances, the court acknowledged that the offender's chronic pain condition and history of drug abuse could in principle support a finding. However, Wilson J concluded that the length of the sentence itself would allow for a sufficient parole period to support reintegration, without reducing the non-parole period below the ordinary ratio.

The court also acknowledged, with evident care, the devastating impact of the offending on the deceased's family. Wilson J directly addressed the likelihood that any sentence would feel inadequate to those who loved the deceased, observing that no term of imprisonment could measure the value of a human life.

Orders Made

  • The offender was convicted of firing a firearm near a public place (s 93G(1)(b) of the Crimes Act 1900 (NSW)).
  • The offender was convicted of the manslaughter of the deceased (s 18(1)(b) of the Crimes Act 1900 (NSW)).
  • An aggregate sentence of 16 years imprisonment was imposed, commencing 12 November 2016 and expiring 11 November 2032.
  • A non-parole period of 12 years was fixed, expiring 11 November 2028, with the earliest possible release date being 11 November 2028.
  • Had separate sentences been imposed: 4 years and 6 months for the firearms offence; 15 years and 3 months for the manslaughter.
  • The offender was advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.

Key Takeaways

  • A jury verdict of manslaughter by excessive self-defence requires the sentencing court to make its own factual findings consistent with that verdict, with adverse facts proved beyond reasonable doubt and mitigating matters proved on the balance of probabilities, applying Olbrich and Weininger.
  • Where an offender provides two materially inconsistent and largely false accounts to police, the sentencing court may reject both in their substance and rely instead on independent witnesses and objective evidence.
  • Discharging a lethal firearm during what amounted to a verbal confrontation, where the force used vastly exceeded any perceived threat, was treated as reflecting significant objective seriousness for sentencing purposes.
  • Special circumstances justifying a reduced non-parole period under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were not found where the total length of sentence already allowed adequate time for parole and reintegration support.
  • The Supreme Court explicitly acknowledged the limits of the criminal justice system in responding to the grief of a victim's family, noting that no sentence of imprisonment can reflect the value of a human life or the depth of loss caused by unlawful killing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 93G(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Evidence Act 1995 (NSW), s 38

Cases
- Elias v The Queen (2013) 248 CLR 483
- Gilson v The Queen (1991) 172 CLR 353
- Imbornone v R [2017] NSWCCA 144
- Markarian v The Queen (2005) 228 CLR 357
- Merrick v R [2017] NSWCCA 264
- R v Oinonen [1999] NSWCCA 310
- R v Quatami [2001] NSWCCA 353
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- Weininger v The Queen [2003] HCA 14; 212 CLR 629