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32
Court of Criminal Appeal 26 February 2020

Magro v R

[2020] NSWCCA 25

HomicideFirearms & weapons
CRIME APPEALS APPEAL AGAINST AGGREGATE SENTENCE MANSLAUGHTER USE FIREARM NEAR PUBLIC PLACE DEFENCE CRIME

Citation: Magro v R [2020] NSWCCA 25
Court: Court of Criminal Appeal, NSW
Date: 26 February 2020
Judges: Gleeson JA (with R A Hulme J and Button J agreeing)

Background

In November 2016, the applicant shot and killed a man during a confrontation outside his home in Baulkham Hills. The shooting arose from a sequence of retaliatory incidents between the applicant and the deceased's family. The applicant had first attacked the deceased's younger brother, the deceased then assaulted the applicant in retaliation, and the applicant subsequently went to the deceased's home and vandalised it. When the deceased came to the applicant's address that evening to confront him, the applicant descended from his verandah armed with a loaded firearm and ultimately shot the deceased once in the neck.

The applicant was charged with murder and a firearms offence (using a firearm near a public place). The jury acquitted him of murder but convicted him of manslaughter, the verdict reflecting a finding of excessive self-defence: the applicant believed he needed to act in self-defence, but his response was not a reasonable one in the circumstances as he perceived them. He was also convicted of the firearms offence.

The sentencing judge, Wilson J, imposed an aggregate sentence of 16 years' imprisonment with a non-parole period of 12 years. The applicant sought leave to appeal on three grounds: error in the assessment of the threat he faced, inadequacy of the guilty plea discount, and manifest excess.

  • Whether the sentencing judge erred in her factual findings about the nature and seriousness of the threat posed by the deceased, particularly in characterising the manslaughter as "very grave" in objective seriousness
  • Whether the sentencing judge erred in allowing only a 10% utilitarian discount, where the applicant had offered an early plea of guilty to manslaughter (which the prosecution rejected) but then ran a defence at trial that was inconsistent with the facts found on sentence
  • Whether the resulting aggregate sentence was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no appellable error in the sentencing judge's factual findings. The evidence established that the applicant armed himself, descended from a position of safety on his verandah, aggressively pursued the deceased who had begun to walk away, and then shot him. The sentencing judge's rejection of the applicant's self-serving accounts in his police interviews was well supported by the independent evidence, including video footage of the shooting.

On the second ground, the Court found that the sentencing judge had erred in the assessment of the utilitarian discount. While the prosecution had rejected an early offer to plead guilty to manslaughter on grounds of excessive self-defence, the applicant's conduct of his trial was inconsistent with the facts ultimately found at sentence. However, the Court accepted that there remained genuine utilitarian value in the early plea offer because it would have avoided the entire trial. The appropriate discount was 20%, not the 10% allowed by the sentencing judge. This ground was upheld.

The Court did not separately address manifest excess in detail, given that the discount error required resentencing. Applying the 20% discount to the manslaughter offence, and maintaining the same indicative sentence for the firearms offence, the Court substituted an aggregate sentence of 13 years and 4 months with a non-parole period of 10 years.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • The aggregate sentence imposed in the Supreme Court on 29 March 2019 was quashed
  • In lieu thereof, the applicant was sentenced to an aggregate term of imprisonment of 13 years and 4 months, comprising a non-parole period of 10 years commencing 12 November 2016 (expiring 11 November 2026), with the balance of term expiring 11 March 2030
  • Indicative sentences: Count 1 (firearms offence), 4 years and 6 months; Count 2 (manslaughter), 12 years and 7 months
  • The applicant was advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him

Key Takeaways

  • Where a prosecution rejects an early guilty plea offer and the matter proceeds to trial, a utilitarian discount remains available at sentence, but its size may be reduced where the defence run at trial is inconsistent with the facts ultimately found by the sentencing court.
  • The Court of Criminal Appeal confirmed that a 20% discount was appropriate in these circumstances, reflecting the genuine utilitarian value of an early plea that would have avoided the whole trial, even though the applicant's trial conduct complicated the assessment.
  • Under the excessive self-defence provisions of the Crimes Act 1900 (NSW), a sentencing court is required to make independent findings of fact about the circumstances of the offending, particularly where the jury returns a manslaughter verdict on this basis without expressly identifying its reasoning.
  • Factual findings on sentence will not be disturbed on appeal merely because the applicant contested them: the Court declined to interfere with Wilson J's rejection of the applicant's accounts where that rejection was well supported by independent evidence and video footage.
  • In resentencing, the Court applied the same indicative term for the firearms offence and adjusted the manslaughter term downward solely to correct the discount error, resulting in an aggregate reduction of nearly three years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 24, 93G, 421, 439
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 25E, 53A(2), Div 1A of Pt 3
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 143
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), Sch 2, Pt 30

Key Cases:
- House v The King (1936) 55 CLR 499 (the threshold for appellate intervention in sentencing discretions)
- Kentwell v The Queen (2014) 252 CLR 651 (guilty plea discounts)
- R v Borkowski [2009] NSWCCA 102 (sentencing for manslaughter)
- R v Cardoso [2003] NSWCCA 15 (utilitarian discount where prosecution rejects plea offer)
- R v Cicekdag [2004] NSWCCA 357 (firearms offences near public places)
- R v Magro [2019] NSWSC 343 (the sentencing decision under appeal)
- Baines v R [2016] NSWCCA 132
- Merrick v R [2017] NSWCCA 264
- Mulato v R [2006] NSWCCA 282