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 64Category: Principal judgment Parties: Chad Frederick Misiepo (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
P Strickland SC (Applicant)
D T Kell SC / M Pulsford (Respondent)
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
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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).
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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…
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- AGLC
- Misiepo v The Queen [2017] NSWCCA 210
- Case
- [2017] NSWCCA 210
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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