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R v Magro

R v Magro

Case [2019] NSWSC 343 29 March 2019

Criminal Liability

Excessive Self-Defence

Use of Firearm

Breach of Peace

Proportionality of Force

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Magro [2019] NSWSC 343
Hearing dates: 9 November 2018; 29 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Jurisdiction: Common Law
Before: Wilson J
Decision:
1   Joshua Magro is convicted of the offence of firing a firearm near a public place. He is convicted of the offence of the manslaughter of Ricardo Coleman.
2 An aggregate sentence will be imposed upon the offender pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
3   The offender is sentenced to imprisonment for 16 years, to date from 12 November 2016, expiring on 11 November 2032. There will be a non-parole period of 12 years, expiring on 11 November 2028. The earliest possible release date is 11 November 2028.
4   The sentences that would have been imposed had separate sentences been fixed are:
(1)   For count 1, a term of 4 years and 6 months imprisonment;
(2)   For count 2, a term of 15 years and 3 months imprisonment.
5 The offender is advised that the Crimes (High Risk Offenders) Act 2006 NSW may apply to him.

Catchwords: CRIMINAL LAW – trial for murder – verdict of not guilty of murder but guilty of manslaughter – excessive self defence – use of firearm during verbal argument – single shot to chest of deceased – force used vastly exceeded perceived threat
Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Elias v The Queen (2013) 248 CLR 483
Gilson v The Queen (1991) 172 CLR 353
Imbornone v R [2017] NSWCCA 144
Markarian v The Queen (2005) 228 CLR 357
Merrick v R [2017] NSWCCA 264
R v Oinonen [1999] NSWCCA 310
R v Quatami [2001] NSWCCA 353
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Category: Sentence
Parties: Regina
Joshua Magro
Representation:
Counsel:
Crown – Mr G Newton
Accused – Mr P Young SC
Solicitors:
Crown – Solicitor for Public Prosecutions (NSW)
Accused – Legal Aid

File Number(s): 2016/338884
Publication restriction: None

Judgment

HER HONOUR: On Remembrance Day 2016 Ricardo Coleman was shot once to the neck and killed. Joshua Magro, wielding a gun he should never have had, killed him. Today, the Court must sentence the offender for that and a related crime.
It is customary to commence remarks such as these with an outline of the circumstances of the crimes, and later to give an account of those of the offender. Instead, I intend to say something about Ricardo Coleman, and to acknowledge immediately the terrible grief that his death has caused. The gravity of the offence of manslaughter, after all, derives from the enormity of a crime that violently, and unlawfully, takes a human life, with all of the awful consequences that flow from such an act.
Ricardo Coleman was…

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 Magro

Details

AGLC: R v Magro [2019] NSWSC 343
Case: [2019] NSWSC 343
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case of R v Magro involved the defendant being charged with the murder of another person. The incident arose from a verbal altercation between the defendant and the deceased, which culminated in the defendant shooting the deceased in the chest with a firearm. The case was heard in the Supreme Court of Victoria, and the defendant was ultimately found not guilty of murder but guilty of manslaughter. The primary legal issue before the court was whether the force used by the defendant was excessive in the context of self-defence and whether the defendant's actions could be justified under the principles of excessive self-defence.

The court considered the evidence presented regarding the circumstances leading up to the shooting, the nature of the altercation, and the defendant's state of mind at the time of the incident. It was noted that the defendant had a history of violence, which may have influenced his perception of the threat posed by the deceased. The court also examined whether the force used by the defendant was proportionate to the perceived threat. The court found that while the defendant had a genuine belief in the need for self-defence, the force used was vastly disproportionate to the threat posed by the deceased.

The court concluded that the defendant's actions were not justified under the principles of self-defence, as the force used was excessive and not necessary to protect himself from the perceived threat. However, the court determined that the defendant's belief in the need for self-defence was genuine, and therefore, he was not guilty of murder but was guilty of the lesser charge of manslaughter. The court imposed a sentence that reflected the seriousness of the offence and the mitigating factors present in the case.

Orders