Magro v R

[2020] NSWCCA 25

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Magro v R [2020] NSWCCA 25

Hearing dates:

29 November 2019

Decision date:

26 February 2020

Before:

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.

(6) The applicant is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.

Catchwords:

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

Legislation Cited:

Crimes Act 1900 (NSW), ss 18, 24, 93G, 421, 439
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 25E, Div 1A of Pt 3, 53A(2)
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

Cases Cited:

Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
Baines v R [2016] NSWCCA 132
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 651; [2014] HCA 37
Merrick v R [2017] NSWCCA 264
Mulato v R [2006] NSWCCA 282
O’Neil-Shaw v The Queen [2010] NSWCCA 42
R v AB [2011] NSWCA 229
R v Ahmad [2005] NSWSC 991
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
R v Cicekdag [2004] NSWCCA 357; (2004) A Crim R 299
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R
R v Hamzy [2016] NSWSC 1512
R v Johnson [2003] NSWCCA 129
R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
R v Magro [2019] NSWSC 343
R v Oinonen [1999] NSWCCA 310
R v O’Neill [1979] 2 NSWLR 582
R v Pennisi [2001] NSWCCA 326
R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Trevenna [2004] NSWCCA 43; [2004] 149 A Crim R 505
R v Wood [2014] NSWCCA 184

Category:

Principal judgment

Parties:

Joshua Magro (Appellant)
Crown (Respondent)

Representation:

Counsel:
J Stratton SC / L Gallagher (Appellant)
M Cinque SC (Crown)

  Solicitors:
J Krajcik Solicitor (Appellant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2016/338884

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWSC 343

Date of Decision:

29 March 2019

Before:

Wilson J

File Number(s):

2016/338884

Judgment

1. GLEESON JA: On 11 November 2016 Riccardo Coleman was shot once in the neck and died shortly thereafter from his injuries. The offender was Joshua Magro. He was charged on indictment with two offences: using a firearm near a public place, contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW) (Count 1) and murder, contrary to s 18 of the Crimes Act (Count 2). At a trial conducted in August and September 2018 the jury found him guilty of the firearms offence, and not guilty of murder but guilty of manslaughter.

2. The essential issue at trial was self-defence. The jury by their verdict may be taken to have found manslaughter by reason of excessive self-defence; that is Mr Magro believed the conduct was necessary to defend himself from another person, but the conduct was not a reasonable response in the circumstances as he perceived them: Crimes Act, s 421(1).

3. The trial judge, Wilson J, sentenced Mr Magro on 29 March 2019 to an aggregate sentence of imprisonment for 16 years to commence on 12 November 2016 and expire on 11 November 2032, with a non-parole period of 12 years, expiring on 11 November 2028: R v Magro [2019] NSWSC 343. The indicative sentences given by her Honour for the purposes of s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were:

• Count 1 (firearms offence) – imprisonment for 4 years and 6 months

• Count 2 (manslaughter) – imprisonment for 15 years and 3 months.

4. Mr Magro seeks leave to appeal against his sentence on three grounds. First that her Honour erred in her assessment of the threat which Mr Magro faced from Mr Coleman. Second, Mr Magro complained that he received an inadequate discount for an offer to plead guilty to manslaughter. Third, that the sentence was manifestly excessive.

Facts found on sentence

5. It was necessary for the sentencing judge to make findings as to the basis of the convictions for the purpose of sentencing Mr Magro, particularly given that on count 2 the jury returned a verdict of not guilty of murder, but guilty of manslaughter. The evidence before the sentencing judge comprised Mr Magro’s criminal record, psychiatric reports from Dr Kerri Eagle and Dr Richard Furst, a witness statement from Benjamin Carroll, the transcript of Mr Magro’s ERISP, victim impact statements, a letter from Justice Health and an offer to plead dated 15 May 2017. Mr Magro did not give evidence on sentence. At the time of the offending he was aged 29 years.

6. The offences were committed at Baulkham Hills on the evening of 11 November 2016. They had their origin in an incident the previous day involving Mr Magro and Mr Coleman’s younger brother who was aged 15 years, during which Mr Magro chased the boy down the street. Her Honour described this incident as a “thuggish attack” on Mr Coleman’s brother: Judgment at [12].

7. Mr Coleman heard about the attack on his brother and later saw Mr Magro on the street and assaulted him. Mr Coleman’s younger brother joined in the attack. Mr Magro was kicked in the head and stomped on the chest and stomach. Some of that assault was filmed on a mobile phone. That footage showed Mr Magro was thrown to the ground and kicked repeatedly. He suffered lacerations and contusions. He walked to his home and his family called an ambulance. He was taken to hospital but did not remain there: Judgment at [13].

8. Angered by the attack upon him, Mr Magro retaliated the next day, 11 November 2016. He went to the Coleman home together with other men and vandalised the house and a car parked there.

9. Mr Coleman returned home after his mother informed him about the damage. He was angry and distressed and expressed concern to his mother that she or his sister could have been in danger had they been at home at the time the damage was done. He contacted some friends to come with him to the home of Mr Magro and “watch his back”. When they arrived, he told his mother he would be back in a minute and he walked with a group of his friends in the direction of Mr Magro’s house: Judgment at [16].

10. There were conflicting accounts of what happened next at Mr Magro’s house. Her Honour generally preferred the accounts of independent witnesses and of those who accompanied Mr Coleman to that of Mr Magro in his second police interview or the evidence of his mother, Melissa Magro: Judgment at [17]. As to Mr Magro’s account, her Honour found at Judgment [18]-[20]:

[18]   The offender gave two versions of the shooting. In the first, during an interview with police on the afternoon of 12 November 2016 (trial Ex. V) he gave an exaggerated account of the assault upon him on 10 November 2016, and an entirely false account of the shooting. He asserted that he had been “dragged” up the road by a group of men, who circled him, and pushed him to the ground. He said that he heard a “bang” when he was on the ground, but denied any knowledge of a shooting, or having firearms in his house. The offender seemed to be feigning illness or some mental disability throughout.

[19]   About an hour later, by that time aware of both Mr Coleman’s death and the existence of footage showing the shooting, the offender was reinterviewed at his own request. It was in this interview that the issue of self-defence was raised for the first time, with the offender telling police that he shot someone in the arm, because he thought “they” were going to kill his mother and family. He claimed that “there were heaps of them” “going crazy” and he believed they would kill his parents, presumably meaning his mother and grandmother. He demonstrated his action in discharging the gun.

[20]   Although the offender assured the police officers who interviewed him that he was “not lying” almost no part of the account he gave in the second interview is consistent with independent and objective evidence, and I do not accept his second version of events, any more than I accept his first. Both consisted of self-serving lies. The only thing that can be accepted is that the offender deliberately discharged the gun at Ricardo Coleman and that, at the time, he believed it was necessary to act in his own defence.

11. Her Honour found that the offending was established beyond reasonable doubt on the basis of evidence given in particular by Harry O’Brien, Shane Towney (junior), Candace Frith-Lo, and her husband Benjamin Frith, together with the footage of the shooting recorded by Ms Frith-Lo. It is convenient to reproduce in full the findings at Judgment [23]-[38]:

[23]   Mr Coleman and five other men walked to the offender’s home on the late evening of 11 November 2016. On arrival there, Mr Coleman began shouting out to the occupants that he wanted to speak to them and demanding they come outside. He went onto the driveway of the property, and a short distance along it towards the house. His friends remained on the footpath, and did not enter the property or call out in any way.

[24]   The offender, who had armed himself with a loaded gun, came out onto the verandah of the house, which was at some height above the driveway. In that location he was in no danger at all of anything other than verbal abuse. His mother followed him onto the verandah.

[25]   The offender began to yell back at Mr Coleman, swearing and shouting at him to leave. He was waving the gun about so that it could be seen. Mr Coleman moved backwards down the driveway, onto or close to the footpath.

[26]   Although there was no reason at all to do so, the offender descended the stairs from his verandah, followed closely by his mother, and moved quickly towards Mr Coleman. He was swearing and threatening Mr Coleman and his friends, and shouting abuse at them. He had the gun in his hand and his demeanour and tone were very aggressive. As a demonstration of force, he raised the gun and pointed it generally upwards, discharging it (count 1). Like the jury, I do not accept that the offender could have, or did, believe that this act was necessary in self-defence.

[27]   The offender was probably at the bottom of the verandah stairs or on the ground in front of them when he discharged the first shot.

[28]   A noise like a firecracker could be heard, and there was a flash of light. Some of Mr Coleman’s friends thought that the offender had a capgun. Ms Frith-Loh, watching from across the street, heard the gun discharge, and asked her husband for his phone so that she could film what was taking place.

[29]   Ricardo Coleman became angry, and pulled his shirt off, as if in readiness for a fist fight. Both Shane Towney senior and Harry O’Brien were urging Mr Coleman to come away, and not worry about it. He turned and walked back along the roadway in the direction of his home, getting about 15 metres or so away from the offender’s house.

[30]   In that he was walking away from the verbal conflict, the incident could have ended there. However, the offender followed Mr Coleman and his friends, aggressively shouting death threats and abuse. The offender was agitated, jumping around, pointing at the group, and saying he would kill them. He raised the gun on a couple of occasions, and lowered it again. The tone he was using was described by Ms Frith-Loh as “bloodcurdling”. She rejected a suggestion that he had sounded fearful or desperate.

[31]   At that point, having been pursued by the offender, Mr Coleman turned back towards him and his mother, telling them to “fuck off” and questioning why they were following his group. He told Melissa Magro to shut her mouth, saying it was her son he wanted to talk to. Mr Coleman was jumping up and down in agitation, and he said something to the offender about having a fight, or sorting it out. He was angry, and took a step or two towards the offender. There was about two metres between him and the offender.

[32]   The offender, who was also angry, and moving in an aggressive and intimidating way, raised his arm to take aim at Mr Coleman, and shot him in the neck at short range. It was done deliberately and, in that he took aim at Mr Coleman, I have concluded that it was done with an intention to kill him.

[33]   Consistent with the verdict of the jury, at the point at which he raised, aimed, and discharged the gun at Mr Coleman, the offender believed he was in danger of being assaulted as he had been the previous day and took defensive action. I do not accept that the offender was fearful for his mother, and even less that he held concerns for his grandmother.

[34]   Neither Mr Coleman nor anyone in his group had made any move towards Melissa Magro; as Candace Frith-Loh observed, Mr Coleman’s friends conducted themselves in a respectful way, and the aggressive exchange was confined to Mr Coleman and the offender, with Melissa Magro the only other person shouting. Mr Coleman made it clear that his argument was with the offender for having smashed his mother’s car and house, and frightened her.

[35]   However, with the assault of the previous day operating on his mind, the offender felt intimidated when Mr Coleman moved forward those couple of steps, and feared that he would again be assaulted; he shot Mr Coleman to defend himself from a further assault.

[36]   His response to the threat that he perceived was offered to him by Mr Coleman was vastly disproportionate, and wholly unreasonable. It went well beyond what was necessary in his defence.

[37]   Mr Coleman clutched the wound and said to his friends that he had been shot. He and his friends turned and ran back towards the Coleman home. On reaching the driveway of his house, Mr Coleman collapsed. Ms Hipwell was already on the telephone reporting the damage done at her home; she asked for an ambulance. She went to her son and cradled him in her arms, holding him, and trying to help him, until ambulance officers arrived.

[38]   Mr Coleman was transferred to hospital, but was pronounced dead soon after arrival.

12. Senior counsel for Mr Magro acknowledged that there was no challenge to her Honour’s narrative of the events with respect to the offending.

Objective seriousness

13. Her Honour found that both offences were a grave example of an offence of their respective type: Judgment at [39].

14. As to the firearm offence, her Honour found that Mr Magro discharged the firearm at an early stage in the brief verbal altercation between him and Mr Coleman. Although he shot the gun above head height, the shot was towards the footpath and the roadway, and Mr Coleman and his friends were put in jeopardy, as were persons in cars on the major roadway or on foot in the vicinity. The gun was discharged near a large suburban shopping centre at a time when there were numerous people in the area. That there were people nearby and endangered by the discharge of the firearm aggravated the seriousness of the offence: Judgment at [40]-[41].

15. Her Honour further found that Mr Magro discharged the firearm:

… as part of an overall display of swaggering aggression towards Mr Coleman and his friends: it was an act of bravado, done to impress upon Mr Coleman and his friends that the offender was a man with a gun, and they would be foolish to challenge him”: Judgment at [43].

16. As to the manslaughter offence, her Honour found that this offence was “very grave” indeed and fell towards the top of the range discussed in R v Trevenna [2004] NSWCCA 43; [2004] 149 A Crim R 505 at [42], taking into account the following circumstances: Judgment at [53]:

1. That while Mr Coleman brought the argument to Mr Magro’s home and behaved in an aggressive manner, Mr Magro was safe within his home and had no need to leave it. He had no need to engage Mr Coleman in a manner which, on the evidence, was intimidating and threatening. That Mr Magro did so was evidence of the anger he felt and his desire for vengeance for the assault of the previous day, feelings that had already led him to vandalise Mr Coleman’s mother’s car and a window at her home: Judgment at [46];

2. Mr Magro took the dispute into a public place and escalated it dramatically. He had not stayed inside his home and called police: Judgment at [47];

3. Mr Magro introduced a dangerous and illegal weapon into what was a verbal conflict and did not do so from fear or need, but to inspire fear and to intimidate: Judgment [48];

4. Mr Magro was, as the jury must have accepted, affected by the assault on him on the previous day and, fearful rather of a repetition and believing he had to defend himself, had used the gun in circumstances where his overall conduct had been aggressive, involving threats and prominent displays of the gun: Judgment at [49];

5. Discharging a gun to deal with a verbal conflict or, at worse, one that the offender feared could become a physical fight with an unarmed protagonist, represented an “extraordinarily disproportionate response to the perceived threated”: Judgment at [50];

6. Mr Magro not only took the life of the 20 year old man, but also put others at risk when he fired the gun on a busy public street: Judgment at [51];

7. Mr Magro’s moral culpability was high: Judgment at [52].

Offender’s subjective case

17. Her Honour considered Mr Magro’s subjective case in some detail, commencing with the circumstances of the offer to plead guilty to manslaughter prior to the matter proceeding in the Local Court. For the reasons referred to below when addressing ground 2, her Honour concluded that a “modest” discount of 10 per cent on sentence for the manslaughter offence was appropriate for what she considered to be the limited utilitarian value of the offer of the plea: Judgment at [65].

18. Her Honour found that Mr Magro’s record disentitled him to any leniency; he had criminal convictions commencing in April 2006 for offences of resisting arrest and offensive language which were dealt with by way of fine and subsequently offences of supply of a prohibited drug, assault police, two counts of resist arrest, and escape police custody: Judgment at [67]. Her Honour also noted that Mr Magro had one prison disciplinary offence for refusing to give a drug sample in December 2018: Judgment at [68].

19. When reviewing the psychiatric evidence, her Honour observed that Dr Furst had noted, based on Mr Magro’s assertions to him, that Mr Magro had appeared to have an “obsessive quality” in relation to his collection of weapons, sometimes staying up all night to look at them: Judgment at [81]. Further, Mr Magro told Dr Eagle that, prior to the offences, he spent his time at home playing on his Play Station, or on the internet and admiring weapons, particularly guns and knives: Judgment at [88].

17. Insofar as Mr Magro had expressed remorse to Dr Furst and Dr Eagle, her Honour did not accept that there was any credible evidence of remorse because the unsworn and untested assertions by Mr Magro were contradicted by the false version of events that he continued to give others about the circumstances in which Mr Coleman was shot: Judgment at [100].

18. Her Honour accepted, based on records from Justice Health, that Mr Magro continued to suffer from a serious pain disorder and that the proceedings had led to stress related depression which had worsened recently: Judgment at [95]-[96]. Her Honour also took into account that Mr Magro’s chronic pain condition will make his time in custody more onerous than for a prisoner without such a condition: Judgment at [107].

19. Her Honour referred to the need for deterrence both general and specific, given the nature of gun crimes and particularly they often involve injury or death to others: Judgment at [98].

20. Her Honour found that Mr Magro’s prospects for the future at best were very guarded, if not rather bleak, taking into account that he was a long standing prescription and illegal drug user and that Dr Eagle noted that Mr Magro had persistent problems with insight into his offending behaviour, together with recent emotional instability and symptoms of mental disorder, which treatment has not addressed: Judgment at [104].

21. Her Honour determined that there should be a degree of accumulation, although it would be moderated by the principle of totality, taking into account there is some commonality between the two offences, principally in relating to the possession and use of the same illegal firearm, but the criminality of the offences is otherwise distinct, and the sentence imposed for one offence cannot fully comprehend the criminality of the other: Judgment at [109].

22. No finding of special circumstances was made based on Mr Magro’s gross pain condition or reported history of drug abuse. Her Honour was of the view that the sentence imposed upon Mr Magro would be of such duration as to allow for sufficient period of parole to assist him to reintegrate into society, without need for a longer period of parole than that which arises from the ordinary ratio of sentence: Judgment at [111].

Ground 1: Assessment of the threat Mr Magro was faced from Mr Coleman

26. Ground 1 asserts error in her Honour’s factual finding that Mr Magro’s response in discharging the gun represented an “extraordinarily disproportionate” response to the perceived threat: see [16(5)] above. This ground is directed to challenging her Honour’s finding that the objective seriousness of the manslaughter offence was “very grave”.

Submissions

27. Senior counsel for Mr Magro submitted, in support of this factual challenge, that her Honour underestimated the danger which Mr Magro faced on 11 November 2016 and overestimated his culpability in the events which led to the killing of Mr Coleman.

28. Counsel acknowledged that this ground involved a complaint about the weight which her Honour gave to the payback incident on 10 November 2016, when Mr Magro was attacked by Mr Coleman and his younger brother. Whilst counsel accepted, as the jury found, that Mr Magro’s response was disproportionate, it was submitted that it could not be said that the reaction of Mr Magro was “extraordinarily disproportionate” to a situation where, according to the submission, he was with his mother confronted by a group of men, one of whom apparently intended to repeat the serious assault which he had inflicted on him the day before.

Consideration

29. The assessment of the objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing the inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This is an evaluative exercise that requires an assessment of a range of factors which may be susceptible of significantly differing views. It has been observed that those difficulties are at their height in circumstances where there has been a trial in which the sentencing judge has been able to assess the evidence the Crown witnesses who gave evidence in the witness box: Baines v R [2016] NSWCCA 132 at [15] (Basten JA).

30. In this case, her Honour had the benefit of assessing firsthand the evidence of the Crown witnesses and Mr Magro’s ERISP, and had seen the two video recordings that showed a portion of the assault on him on 10 November 2016 and a portion of the altercation on the street culminating in Mr Magro shooting Mr Coleman on 11 November 2016.

31. The question is whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to the judge: Mulato v R at [37], [46]-[47]. In order for this Court to interfere with the assessment made by the sentencing judge, error must be demonstrated in accordance with the principles in House v The King: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; see also Mulato v R at [46]; Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [67]. Here, the asserted error is that her Honour made a material error of fact in assessing the objective seriousness of the offending.

32. I do not agree with the submission that her Honour underestimated the danger which Mr Magro faced on 11 November 2016 when one has regard to the evidence of observers of the assault on 10 November 2016 describing Mr Magro being spear-tackled to the ground and stomped on the head.

33. First, it may be inferred that her Honour took that evidence into account, given her Honour’s observation that the footage of the assault on Mr Magro on 10 November 2016 showed Mr Magro being thrown into the ground and kicked repeatedly.

34. Second, her Honour’s detailed findings concerning the offending included that Mr Magro was affected by the assault upon him the previous day and fearful of a repetition of it and, with that background, and believing that he had to defend himself, he discharged the gun: see [16(4)] above. Plainly, her Honour did not underestimate the perceived threat to Mr Magro.

35. Nor did her Honour overestimate Mr Magro’s culpability in the events which led to the killing of Mr Coleman. In correctly finding that Mr Magro’s moral culpability was high, her Honour took into account her findings, which are not challenged on appeal:

• that Mr Magro had greatly exaggerated the threat he said that he faced when discharging the weapon, being a reference to his assertion that he thought his family would be killed and his mother raped;

• Mr Magro had followed Mr Coleman out into the street when he left the driveway of Mr Magro’s house;

• Mr Magro had deliberately armed himself and introduced a dangerous and illegal weapon into what was a verbal conflict; and

• Mr Magro did so, not from fear or need, but to inspire fear, and to intimidate.

36. It was well open to her Honour to find that discharging a gun to deal with verbal conflict, or, at worst, one in which Mr Magro feared could become a physical fight with an unarmed person, was an extraordinarily disproportionate response to the danger which he faced.

37. Ground 1 has not been made out.

Ground 2: Offer to plead guilty to manslaughter

38. Ground 2 asserts that her Honour erred in only allowing a 10 per cent discount on sentence for the manslaughter offence for Mr Magro’s offer, made in writing by his senior counsel to the Director of Public Prosecutions on 15 May 2017, to plead guilty to manslaughter by reason of excessive self-defence in relation to the charge of murder. The offer of a plea was put on the basis that the Crown would not be able to exclude as a reasonable possibility that Mr Magro honestly believed that what he did was necessary to defend himself and/or others, because of the earlier incident and the confrontation on the night.

39. The Director of Public Prosecutions rejected that offer on 31 July 2017 and the matter was committed for trial. On 3 November 2017 Mr Magro was arraigned in the Supreme Court and the matter listed for trial to commence on 13 August 2018. On 30 July 2018 the defence served a notice under s 143 of the Criminal Procedure Act 1986 (NSW) indicating that Mr Magro would rely upon self-defence. The trial commenced on 13 August 2018. As indicated, the jury returned a verdict of manslaughter on 11 September 2018.

40. At the sentencing hearing, senior counsel for Mr Magro submitted that the appropriate discount on sentence for the manslaughter offence was 25 per cent. The Crown initially conceded in its written submissions on sentence that 25 per cent was the appropriate discount. However, in oral argument, after her Honour had drawn to the Crown’s attention this Court’s decision in Merrick v R [2017] NSWCCA 264, the Crown altered its position and submitted that a lesser discount, as assessed by the judge, would be appropriate since the plea did not fully disclose the circumstances and degree of culpability intended to be acknowledged by the plea, and that it was made without any agreement as to the facts of the offending.

41. Senior counsel for Mr Magro responded that there was no practice of sending a draft set of facts, together with a plea offer, and that the offer in the letter of 31 July 2017 was just the start of a plea negotiation which went nowhere when the Crown refused to accept it.

42. Her Honour gave the following reasons for allowing what she described as a “modest” discount of 10 per cent:

1. that as in Merrick v R, on arraignment before the jury at trial, Mr Magro did not enter the foreshadowed plea to the alternative form of homicide; his case was one of self-defence, and he invited the jury to acquit him outright: Judgment at [58];

2. the plea offer did not disclose the circumstances and degree of culpability intended to be acknowledged by Mr Magro and that it was not possible to make any comparison between the offer and the credible evidence given at trial to assess the potential utilitarian value of the offer: Judgment at [60];

3. the version of events given by Mr Magro referred to in the plea offer was greatly at odds with the facts the court had found on sentence, and that the criminality of Mr Magro’s conduct as described by him in the second police interview was significantly below the criminality found established in the sentencing proceedings: Judgment at [61];

4. no great utilitarian benefit flowed from the offered plea, given that the plea offer was not accompanied by any suggested facts, there was nothing to suggest that Mr Magro would have acknowledged the facts of the shooting established at trial or that any facts suitable to the Crown could be agreed: Judgment at [62].

43. Her Honour distinguished R v Oinonen [1999] NSWCCA 310, which had been relied upon by Mr Magro, on the basis that in Oinonen, the offender never disputed the circumstances of the killing as established by evidence at trial, whereas Mr Magro had both denied any responsibility at all for the crime and had greatly exaggerated the threat he said he faced when discharging the weapon and his assertion that he discharged the gun with closed eyes in an undirected way was contrary to the objective and independent evidence that established that he raised the gun and pointed it directly at Mr Coleman: Judgment at [63].

Submissions

44. Counsel for Mr Magro challenged each of the four reasons given by the sentencing judge for not allowing a discount of 25 per cent. It was submitted that where the offender makes an early offer to plead guilty to manslaughter, which was rejected by the Crown and after a trial for murder, the jury returns a verdict of not guilty of murder, but guilty of manslaughter, the offender should be treated as if the offer had been accepted, with the consequence that a discount of 25 per cent is appropriate.

45. It was further submitted that the present case was not distinguishable from R v Oinonen and the cases which follow it. Reference was made to R v Pennisi [2001] NSWCCA 326; R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535; R v Johnson [2003] NSWCCA 129; Merrick v R; and R v Hamzy [2016] NSWSC 1512.

Relevant principles

46. It is common ground that the prescribed sentencing discounts for guilty pleas to indictable offences contained in Div 1A of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in particular s 25E, are not applicable in the present case, as these provisions only apply to proceedings commenced on or after 30 April 2018: Sch 2, Pt 30 of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW).

47. The relevant provision in the present case is s 22 of the Crimes (Sentencing Procedure) Act which requires a sentencing judge to take into account the fact of a plea of guilty and its timing and circumstances. The section allows that, upon those considerations, a lesser penalty may be imposed than would otherwise be the case. A discount on sentence under this section is allowed solely to reflect the utilitarian value of the plea in expediting and reducing the cost of the administration of the criminal law: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142.

48. In R v Thomson; R v Houlton, the guideline judgment given by this Court relating to the discount which should be given in respect of pleas of guilty, Spigelman CJ said at 419:

(iii)   The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. …

49. As events turned out, there was no utilitarian value in this case as the plea was not accepted. However, while technically Mr Magro did not plead guilty to manslaughter and he therefore does not fall within the precise terms of s 22 of the Crimes (Sentencing Procedure) Act, it is the potential utilitarian value of the offered plea which is significant. In R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32], Howie J (McClellan CJ at CL and Simpson J agreeing) summarised “a number of “principles of general application” when a sentence is discounted for a guilty plea, including:

…

10.   An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129.

…

50. In R v AB [2011] NSWCA 229 at [3] Bathurst CJ said courts should “… generally continue to follow the approach in R v Borkowski… but … the principles have to be applied by reference to the particular circumstances in any case”.

51. In Oinonen at [15], Grove J (Spigelman CJ and Sully agreeing) said in relation to s 439 of the Crimes Act 1900 (NSW), the predecessor provision to s 22 of the Crimes (Sentencing Procedure) Act:

There has been a long practice, however, in this Court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted.

52. As Hidden J explained in Cardoso at [21]:

If the submission of the Crown prosecutor in this Court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown’s attitude. That would be unacceptable.

53. The Crown did not dispute that the practice referred to in Oinonen remains of general application, as the cases referred to above at [45] demonstrate.

54. In Merrick v R, this Court emphasised that the rationale for a discount on sentence in respect of the unrealised utilitarian value of plea which is offered but not accepted, is that of fairness to the offender. The Court (Gleeson JA, Beech-Jones and Fagan JJ) observed at [104]-[105]:

[104]   Generally, where a plea of guilty has been withheld (including where this has occurred during a period and for a purpose related to negotiations with the Crown), no utilitarian value will be considered to have accrued and no discount will be allowed: R v Stambolis [2006] NSWCCA 56; 110 A Crim R 510 per Howie J at [11]. In that case Howie J made the following further observations which have relevance for the present case:

[12]   I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused’s plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15.

[105] As this passage recognises, the underlying consideration upon which a sentencing judge may allow a discount beyond the operation of s 22 of the Crimes (Sentencing Procedure) Act, in respect of the unrealised utilitarian value of plea which is offered but not accepted, is that of fairness to the offender. Further, it must be recognised that the refusal of a sentencing judge to afford any discount on account of an offer to plead guilty that was not accepted is an exercise of discretion that can only be interfered with on the basis stated in House v R (1936) 55 CLR 499.

55. Although the present case concerns the potential utilitarian value of an offered plea, the following observations by Johnson J (Hoeben J agreeing) in R v AB at [30]- [32] concerning the utilitarian value of a guilty plea should be noted:

[30] A person who pleads guilty to a criminal offence is, of course, entitled to dispute facts (beyond the elements of the offence) for the purpose of sentence. Where such a dispute occurs, any contested questions of fact adverse to an offender, must be established to the criminal standard of proof: O'Neil-Shaw v R[2010] NSWCCA 42. An offender is not to be penalised because he or she disputes certain facts on sentence and requires the Crown to prove those facts.

[31] The position is analogous to that of a person who goes to trial, who may not be penalised for the manner in which the defence at trial was conducted: Siganto v The Queen[1998] HCA 74; 194 CLR 656 at 666-667 [30]-[34]. However, as is made clear in Siganto v The Queen, a person who goes to trial is not entitled to mitigation for a plea of guilty.

[32] Likewise, a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing.

Consideration

56. Accepting that the exercise of the discretion to afford any discount on sentence can only be interfered with on the basis stated in House v The King, in my view, there are difficulties with some aspects of her Honour’s reasons for only allowing a discount of 10 per cent on sentence.

57. The first reason given by her Honour – that Mr Magro did not plead guilty to manslaughter in front of the jury – involved error. That the offer of the plea was not made in front of the jury did not distinguish this case from Oinonen or the subsequent cases where the approach in Oinonen was applied. In all those cases the offender did not plead guilty to manslaughter in front of the jury: Oinonen at [15]; Pennisi at [1]; Cardoso at [20]; Johnson at [2]; and Hamzy at [1].

58. The second reason given by her Honour – that the offered plea did not disclose the circumstances and degree of culpability intended to be acknowledged by Mr Magro – adopted the language of this Court in Merrick. That was an error because the present case is distinguishable from Merrick.

59. In Merrick, the offer to plead guilty to manslaughter was expressed to be conditional upon it being “subject to agreed facts”, and it was not clear from the offer whether the basis of the plea to manslaughter was an unlawful and dangerous act, provocation or excessive self-defence: Merrick at [117]. That was the context in which this Court observed that the offer to plead to manslaughter did not disclose the circumstances and degree of culpability intended to be acknowledged by the offender.

56. By contrast, Mr Magro’s offered plea was not made conditional upon agreement as to a statement of facts and although the offer did not propose any agreed facts, the offer indicated the particulars of criminal responsibility intended to be comprehended by the offer, namely manslaughter by reason of excessive self-defence. The offered plea, if accepted by the Crown, would have constituted an admission by Mr Magro of the essential elements of the offence of manslaughter by excessive self-defence: R v O’Neill [1979] 2 NSWLR 582 at 588, 596; O’Neil-Shaw v The Queen [2010] NSWCCA 42 at [43]. Those elements were that Mr Magro caused the death of Mr Coleman, the fact that his actions were voluntary and accompanied by a mental element of murder, and the concession that his actions were not a reasonable reaction to the threat that he faced. It would have remained for findings of fact to be made by the sentencing judge, by reference to evidence adduced by the parties at the sentencing hearing. Any dispute as to the facts on sentence would have been resolved in the manner referred to in R v AB at [30]-[32]: see above at [55].

57. This leads to the third and fourth reasons given by her Honour for distinguishing Oinonen, namely, the difference between the evidence in the Crown case and the defence at trial, and that there was nothing to suggest that Mr Magro would have acknowledged the facts of the shooting as they had been established at trial.

58. It was open to her Honour to take the view, having observed the conduct of the trial, that had the Crown accepted the offered plea, Mr Magro would not have acknowledged the facts of the shooting as they had been established at trial, and that dispute would have been resolved adversely to him given the difference between the evidence in the Crown case and the defence at trial. In those circumstances, Mr Magro would not have been entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require, and lose, such a contested hearing: R v AB at [32].

59. In my view, there was no error in her Honour proceeding on the basis that Mr Magro was not entitled to the same discount for an offered plea, on potential utilitarian grounds, as a person who makes such an offer and would not have required a contested hearing on sentence had the offer been accepted, and would not have lost the contest.

60. However, I respectfully disagree with her Honour’s assessment that there was “no great utilitarian value” from the offered plea. That failed to take into account that, notwithstanding the likelihood that Mr Magro would not have acknowledged the facts of the shooting as they had been established at trial, there was no contest at trial about the fact that Mr Magro fired the gun, that the second shot fired by Mr Magro killed Mr Coleman and that his actions amounted to excessive self-defence. For this reason, together with the errors identified above at [57] and [58], I respectfully consider that her Honour’s assessment of the potential utilitarian value as “modest” was an error.

61. As ground 2 has been made out, it is necessary to re-sentence Mr Magro.

Ground 3: Manifest Excess

66. Ground 3 asserts manifest excess. It is not necessary to address this ground since it is necessary for this Court to re-exercise the sentencing discretion in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 651; [2014] HCA 37.

Re-sentence

67. No evidence was relied upon by Mr Magro on re-sentence.

68. I have taken into account Mr Magro’s submissions based on the Judicial Commission statistics in relation to sentences for the offence of manslaughter and suggested comparable cases: R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R; R v Ahmad [2005] NSWSC 991; R v Hamzy.

69. The limitations upon relying on comparative cases are well known. In R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 (Bathurst CJ, R A Hulme and Johnson JJ) observed at [226] that there is no range of sentences for manslaughter which may be said to have a single common component relating to the mechanism of death, and continued at [227]:

The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of range of sentences, or a tariff, for a particular form of manslaughter. Gleeson CJ made this clear in R v Blacklidge … in a passage cited regularly in cases such as R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at 530 [40].

70. These remarks were cited with approval in R v Wood [2014] NSWCCA 184 at [55]. There the Court observed at [56] in relation to the use of sentencing statistics in manslaughter offences:

The limited assistance that may be derived from Judicial Commission sentencing statistics is diminished in the case of manslaughter because the offence covers such a wide variety of circumstances. The use of statistical information in manslaughter cases has been described as not illuminating in any decisive manner the decision to be reached: R v BW [2011] NSWCCA 176 at [61]; Goundar v R [2012] NSWCCA 87 at [44] - [45]. Reliance on such data has also been said in manslaughter cases to be "unhelpful and even dangerous": R v Vongsouvanh; R v Namalauulu [2004] NSWCCA 158 at [38].

71. The starting point on re-sentence is the guideposts provided by the maximum penalties for the firearms offence of imprisonment for 10 years and for manslaughter of imprisonment of 25 years. I would take the same approach to the assessment of objective seriousness of the offending as her Honour did, and also to the fact that Mr Magro’s record does not entitle him to any leniency.

72. I would allow a discount of 20 per cent on the manslaughter offence for the potential utilitarian benefit of the offer of the plea of guilty at an early stage of the proceeding. The reduction in the discount from the usual 25 per cent for the offer of an early guilty plea reflects the reduced potential utilitarian value of the offer in the circumstances of this case as explained above at [64].

73. I adopt her Honour’s findings that there is no credible evidence of remorse, and that Mr Magro’s chronic pain condition will make his time in custody more onerous than for a prisoner without such a condition.

74. In the present case the principle of deterrence, particularly general deterrence, is of considerable importance given, as her Honour observed, the nature of gun crimes and that they often involve injury or death to others.

75. There is also a need for specific deterrence. As her Honour noted, Mr Magro appears to have a troubling obsession with guns and knives and, according to Dr Eagle, Mr Magro has had a history of problems with violence, antisocial behaviour from a young age, problems with relationships, unemployment and he has an antisocial personality disorder. In addition, Dr Eagle noted Mr Magro’s “persistent problems with insight into his offending behaviour”.

76. I agree with her Honour’s remarks that Mr Magro’s prospects for the future are at best very guarded, if not rather bleak.

77. I would decline to make a finding of special circumstances for the same reasons as given by her Honour: the sentence to be imposed upon Mr Magro will be of such a duration as to allow for a sufficient period of parole to assist him to reintegrate into society, without the need for a longer period than that which arises from the ordinary ratio of sentence.

78. As to accumulation, I reject Mr Magro’s submission that the firearms offence added “very little” to the overall criminality in this case. As this Court observed in R v Cicekdag [2004] NSWCCA 357; (2004) A Crim R 299 at [35] (Hoeben J, Grove J and James J agreeing) in relation to s 93G(1)(b) which prohibits the discharge of a firearm in or near a public place:

The problem with a projectile weapon, such as a firearm, is that once the projectile has been released it will travel a considerable distance and the firer has no control over its ultimate destination. Death or injury can result. This is particularly so where the discharge is indiscriminate in a public place and as happened here, a number of shots are fired.

79. The aggregate sentence that I propose will include a degree of accumulation for the firearms offence. The starting date for the sentence will be that adopted by her Honour for the reasons given by her relating to Mr Magro’s time in custody since 12 November 2016, which it is not necessary to repeat.

80. Having regard to these findings and taking into account the maximum penalties for each offence, the aggregate sentence that I propose is 13 years and 4 months.

81. I would indicate for the purposes of s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that the sentences that I would have imposed had separate sentences been fixed are:

1. For count 1, a term of imprisonment for 4 years and 6 months

2. For count 2, a term of imprisonment for 12 years and 7 months (having applied the 20 per cent discount to a starting point of 15 years 9 months).

Orders

82. In all the circumstances, I propose the following orders:

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 11 November 2026.

5. The sentences that would have been imposed had separate sentences been fixed are:

1. For count 1, a term of imprisonment for 4 years and 6 months

2. For count 2, a term of imprisonment for 12 years and 7 months.

6. The applicant is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.

83. R A HULME J: I agree with Gleeson JA.

84. BUTTON J: I agree with Gleeson JA.

**********

Amendments

27 February 2020 - [61] - correct typographical error

Decision last updated: 27 February 2020