Gleeson JA at [1] R A Hulme J at [83] Button J at [84]
Decision:
(1) Grant the applicant leave to appeal against sentence.
(2) Appeal allowed.
(3) The aggregate sentence imposed on the applicant in the Supreme Court on 29 March 2019 is quashed.
(4) In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 13 years and 4 months comprised of a non-parole period of 10 years commencing on 12 November 2016 and which will expire on 11 November 2026 with the balance of term expiring on 11 March 2030. The earliest possible release date is 11November 2026.
(5) The sentences that would have been imposed had separate sentences been fixed are:
(a) For count 1, a term of imprisonment for 4 years and 6 months (b) For count 2, a term of imprisonment for 12 years and 7 months.
CRIME – appeals – appeal against aggregate sentence – manslaughter – use firearm near public place – where sentencing judge found objective seriousness of manslaughter offence “very grave” – whether sentencing judge erred in fact finding on excessive self-defence
CRIME – appeals – appeal against sentence – jury verdict of not guilty of murder but guilty of manslaughter – utilitarian discount – where early offered plea of guilty of manslaughter on grounds of excessive self-defence rejected by prosecutor – where applicant's defence case at trial inconsistent with sentencing judge’s findings as to circumstances of the offending – whether House v The King error in assessment of 10% discount – applicant re-sentenced – 20 % discount allowed for early guilty plea
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Magro v R [2020] NSWCCA 25
Case
[2020] NSWCCA 25
Decision Date
CaseChat Overview and Summary
The appellant, Magro, was convicted of manslaughter by a jury and appealed against his sentence. The trial judge found the objective seriousness of the manslaughter offence to be "very grave" and imposed a sentence of imprisonment. Magro contended that the sentencing judge erred in finding that his use of a firearm in a public place was not in excessive self-defence. The Crown, on the other hand, argued that the sentence was appropriate given the gravity of the offence.
The central legal issues in the appeal revolved around whether the sentencing judge erred in concluding that Magro's use of a firearm in a public place was not in excessive self-defence, and whether the trial judge misapplied the principles for determining the appropriate discount for an early guilty plea. The appeal also questioned the appropriate level of discount for an early guilty plea, given that Magro had initially offered to plead guilty to manslaughter on the basis of excessive self-defence, which was rejected by the Crown.
The court found that the sentencing judge had not erred in determining that Magro's use of a firearm was not in excessive self-defence. The trial judge had considered all the relevant evidence and had made findings that were open on the evidence. The court also found that the trial judge had erred in assessing the appropriate discount for an early guilty plea. The court noted that the principles for determining the appropriate discount had been misapplied and that a 20% discount should have been applied instead of a 10% discount. Accordingly, the court allowed the appeal in part, re-sentenced Magro, and ordered that he be given a 20% discount for his early guilty plea.
Magro was re-sentenced to a term of imprisonment with a 20% discount for his early guilty plea. The court's decision highlights the importance of correctly applying the principles for determining the appropriate discount for an early guilty plea and the need for consistency between the defence case at trial and the sentencing judge's findings as to the circumstances of the offending.