R v McCann - [2012] NSWSC 1462

Supreme Court

New South Wales

Medium Neutral Citation: R v McCann [2012] NSWSC 1462
Hearing dates: 5 November 2012 - 19 November 2012; 27 November 2012
Decision date: 29 November 2012
Jurisdiction: Common Law
Before: Barr AJ
Decision:
For the manslaughter of Craig Alan Morgan, John Charles McCann is sentenced to imprisonment. A non-parole period of 3 years and 6 months is set which will be taken to have commenced on 13 March 2011 and which will expire on 12 September 2014. The balance of the term of the sentence will be 3 years and 6 months expiring on 12 March 2018. The first day on which the offender will become eligible for release to parole will be 12 September 2014.

Catchwords: CRIMINAL LAW - Sentencing - Manslaughter - Excessive self-defence
Category: Sentence
Parties: Regina - Crown
John Charles McCann - Offender
Representation: P. Barrett
S. Hanley SC
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s): 2011/81162

REMARKS ON SENTENCE

The offender, John Charles McCann, has been found guilty by the jury of the manslaughter of Craig Alan Morgan and is to be sentenced.

On 12 March 2011 the offender was living in a house in Springwood. Originally it was his family house but unfortunately the family had ceased living together in circumstances of which I will say something later in these remarks. The offender had no regular substantial source of income and his financial affairs were being managed by another as authorised by the Guardianship Tribunal. He used to take in lodgers to help him make ends meet. One of the lodgers was the deceased, Craig Alan Morgan. He had resided at the house previously, most recently early in 2011. Also lodging there were Michael Vickers and Tara Hain. They both knew the deceased and were friends with him.

The deceased had family and connections in the Northern Territory and had lived and worked there. Early in 2011 he left the house and returned to the Northern Territory to work. Shortly before 8 March 2011 he telephoned Mr Vickers and said that he was returning to Springwood, where he would call in before continuing to the Central Coast of New South Wales to take up a job caring for a person there. Mr Vickers told the offender.

On or about 8 March 2011 the deceased arrived at the offender's house and the offender agreed that he could stay the night. The deceased did so. He continued to stay and was still resident there on 12 March 2011. On that day he and Mr Vickers were seated on the verandah at the front of the offender's house. They were drinking. The deceased was an alcoholic. The offender resented the deceased's presence and wanted him out of the house. A number of things about the deceased were irritating him, not least that he had been smoking in his room, which was a fire hazard, and that he had overstayed his welcome.

I shall say more about the mental condition of…

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 McCann

Details

AGLC: R v McCann [2012] NSWSC 1462
Case: [2012] NSWSC 1462
Decision Date: 29 November 2012

CaseChat Overview and Summary

The case of R v McCann involved the accused, McCann, who was charged with manslaughter in relation to the death of an individual during an altercation. The dispute centred on whether McCann's actions constituted excessive self-defence, warranting a manslaughter conviction instead of a more severe charge such as murder. The matter was heard in the Supreme Court of Victoria. McCann argued that his response was proportionate to the threat he perceived, while the prosecution maintained that his actions were disproportionate and amounted to murder.

The central legal issue the court had to resolve was whether McCann's response to the perceived threat was proportionate and thus justifiable under the principles of self-defence. The court needed to assess the objective reasonableness of McCann's perception of the threat, the proportionality of his response, and whether the principles of excessive self-defence applied. Additionally, the court had to consider whether there were any mitigating factors that might reduce the severity of the charge.

The court examined the circumstances leading up to the incident, the nature of the threat McCann believed he was facing, and the extent of his response. It concluded that McCann's perception of the threat was not unreasonable given the context, but his response was disproportionate to the level of danger he faced. The court found that McCann's actions were not justified under the principles of self-defence and instead amounted to manslaughter due to excessive force. The court emphasised the importance of proportionality in self-defence claims and highlighted that the use of lethal force should be a last resort.

The final orders of the court were that McCann was found guilty of manslaughter. The sentencing phase will determine the appropriate penalty for this conviction, taking into account the mitigating factors and the nature of the offence.

Orders