R v Gale - [2020] NSWSC 808

Supreme Court

New South Wales

Medium Neutral Citation: R v Gale [2020] NSWSC 808
Hearing dates: 14 April 2020
Decision date: 26 June 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
The offender is sentenced to a term of imprisonment comprising a non-parole period of 8 years, and a balance of term of 4 years. The total sentence is 12 years, commencing from 8 May 2018 and expiring on 7 May 2030. The offender will become eligible for possible release on parole when the non-parole period expires on 7 May 2026.

Catchwords:
CRIMINAL LAW – sentence – where offender originally charged with murder – where offender pleaded guilty to manslaughter on the basis of excessive self-defence – where minimal evidence of remorse – where prospects of rehabilitation poor – where actions were without provocation – where offender had a troubled upbringing

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Summary Offences Act 1988 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184
Smith v R [2015] NSWCCA 193
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Regina
Michael Graham Gale (Offender)
Representation:
Counsel:
M G Fox (Crown)
P D Young SC; S Fraser (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Morrisons Law Group (Offender)

File Number(s): 2018/140832

Judgment

HIS HONOUR: The offender, Michael Gale, was arrested and charged on 8 May 2018 with the murder of the deceased, Steve Edwards, on 4 May 2018 at Wollongong.
During the committal, the offender made a formal offer to plead guilty to a charge of manslaughter by reason of excessive self-defence pursuant to s 421 of the Crimes Act 1900 (NSW). The offer was rejected and the offender was committed to this Court for trial. He was arraigned on 2 August 2019 and the trial was set down to commence on Monday 3 February 2020, with an estimate of three weeks. Following further discussions between the parties, on that date, the Crown presented a fresh indictment which included an alternative count for manslaughter to which the offender pleaded guilty and which the Crown accepted in full satisfaction of the indictment.

Background to the offence and plea

An agreed statement of facts (“the agreed facts”) was tendered by the Crown on the sentencing hearing, which is to the following effect.
At the time of the offence, the offender and the deceased were aged 52 and 39 respectively. They had a history of animosity towards each other that dated back to January 2017, when the deceased had assaulted an elderly woman. He had been charged, and was convicted and sentenced for the assault at Wollongong Local Court on 15 August 2017.
On the day of the offence for which the offender is being sentenced,…

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 R v Gale

Details

AGLC: R v Gale [2020] NSWSC 808
Case: [2020] NSWSC 808
Decision Date: 26 June 2020

CaseChat Overview and Summary

The case of R v Gale involved the offender, Gale, who was originally charged with murder. The court was tasked with determining an appropriate sentence after Gale pleaded guilty to manslaughter based on the defence of excessive self-defence. The legal issues before the court included the appropriate sentence for manslaughter, the mitigating factor of excessive self-defence, and the lack of remorse demonstrated by Gale. The court also had to consider Gale's troubled upbringing and poor prospects for rehabilitation.

The court began by acknowledging the serious nature of the crime and the original charge of murder. Despite Gale's guilty plea to manslaughter, the court emphasised the importance of a proper sentence that reflects the gravity of the offence and the need for public protection. The mitigating factor of excessive self-defence was considered but was not deemed sufficient to significantly reduce the sentence. The court noted the minimal evidence of remorse and the fact that Gale's actions were unprovoked. The troubled upbringing and poor prospects for rehabilitation were also factored into the sentencing decision.

In arriving at the sentence, the court balanced the need for deterrence and retribution against the mitigating factors. The court ultimately determined that a custodial sentence was necessary to adequately address the seriousness of the offence and to protect the public. The sentence imposed was reflective of the court's consideration of all relevant factors, including the nature of the offence, the mitigating circumstances, and the offender's background. The final orders of the court were that Gale be sentenced to a term of imprisonment, with specific details regarding the length and conditions of the sentence provided in the judgment.

Orders