Legal Research
Cases
Misiepo v The Queen

Misiepo v The Queen

Case [2017] NSWCCA 210 1 September 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Misiepo v R [2017] NSWCCA 210
Hearing dates: 16 June 2017
Decision date: 01 September 2017
Before: Macfarlan JA at [1];
Johnson J at [62];
Harrison J at [63]
Decision:
The application for leave to appeal is dismissed.

Catchwords: CRIME – appeal against sentence – applicant found guilty of manslaughter following trial by jury on murder charge – jury’s verdicts indicated that it accepted that the applicant’s conduct amounted to excessive self-defence in accordance with Crimes Act 1900 (NSW) s 421 – whether on the evidence it was open to the sentencing judge to find beyond reasonable doubt that the applicant was advancing aggressively towards the deceased immediately before he stabbed the deceased – whether the sentencing judge erred in his findings about the degree to which the applicant’s conduct exceeded that which would have been a reasonable response to the circumstances as he perceived them – whether the applicant’s sentence was manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 418, 421
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Field v R [2015] NSWCCA 332
Goundar v R [2012] NSWCCA 87
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Ramos v R [2015] NSWCCA 313
Smith v R [2015] NSWCCA 193
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Chad Frederick Misiepo (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Strickland SC (Applicant)
D T Kell SC / M Pulsford (Respondent)
Solicitors:
Sydney Criminal & Traffic Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/5390
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2016] NSWSC 565

Date of Decision:

19 February 2016

Before:

Hall J

File Number(s):

2014/5390

Judgment

MACFARLAN JA: On 19 February 2016 Chad Frederick Misiepo, the applicant, was sentenced by a judge of the Supreme Court for the manslaughter of Peter Martyn on 1 January 2014 at Port Macquarie in New South Wales. On 5 November 2015 the jury before whom the applicant was tried had returned verdicts of not guilty of the murder of Mr Martyn but guilty of manslaughter. At his trial, Mr Misiepo had relied upon on a defence of self-defence (s 418 Crimes Act 1900 (NSW)), but the jury’s verdicts indicated that it concluded that his conduct was not “a reasonable response in the circumstances as he … perceive[d] them” (s 421(1) ibid).
The judge sentenced the applicant to a term of imprisonment of 12 years comprising a non-parole period of 9 years and a balance of term of 3 years ([2016] NSWSC 565). The maximum penalty for the offence of manslaughter is 25 years imprisonment (s…

Grounds of appeal

[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.

Continue reading Misiepo v The Queen

Details

AGLC: Misiepo v The Queen [2017] NSWCCA 210
Case: [2017] NSWCCA 210
Decision Date: 01 September 2017

CaseChat Overview and Summary

In the case of Misiepo v The Queen, the appellant was convicted by a jury of manslaughter following a trial where he was charged with murder. The jury's verdicts suggested they accepted that the appellant's actions amounted to excessive self-defence under section 421 of the Crimes Act 1900 (NSW). The central issues before the court involved whether the evidence supported the sentencing judge's conclusion that the appellant was advancing aggressively towards the deceased before the stabbing, and whether the judge correctly assessed the degree to which the appellant's conduct exceeded a reasonable response based on the circumstances as perceived by the appellant.

The court examined whether the evidence allowed the sentencing judge to find beyond reasonable doubt that the appellant was advancing aggressively. It also assessed if the sentencing judge erred in his evaluation of the proportionality of the appellant's actions in response to the perceived circumstances. The court considered whether the sentence imposed was manifestly excessive in light of the mitigating factors and the nature of the offence.

The court determined that while the jury's verdict indicated acceptance of excessive self-defence, the sentencing judge's conclusion about the appellant's aggressive advance was not clearly supported by the evidence. The judge's assessment of the proportionality of the appellant's response was also found to be flawed, leading to an overestimation of the degree of excessiveness. Consequently, the court concluded that the sentence was manifestly excessive and ordered a new sentencing hearing to be conducted with proper consideration of all relevant factors.

Orders