R v McGuren - [2010] NSWSC 744

CITATION: R v McGuren [2010] NSWSC 744

HEARING DATE(S): 7 June 2010 - 2 July 2010

JUDGMENT DATE :
6 July 2010

JUDGMENT OF: Fullerton J

DECISION: Imprisonment for a term of 34 years commencing on 4 January 2010 and expiring on 3 January 2044 with a non-parole period of 25 years and 6 months expiring on 3 July 2035.

CATCHWORDS: CRIMINAL LAW - sentence - murder - premeditated - offending in upper end of upper range of objective seriousness - plea of guilty entered at conclusion of evidence in trial

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Sentence

CASES CITED: Knight v R [2006] NSWCCA 292; 164 A Crim R 126
R v McEvoy [2010] NSWCCA 110
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: The Crown
John Alan McGuren (Offender)

FILE NUMBER(S): SC 2008/66368

COUNSEL: P Barnett SC (Crown)
N Steel (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FULLERTON J

6 JULY 2010

2008/66368 R v JOHN ALAN McGUREN
JUDGMENT

1 HER HONOUR: On 7 June 2010 the Crown presented an indictment charging the offender, John Alan McGuren, with the murder of Larry Rex Stewart. The Crown alleged that he murdered the deceased by striking him repeatedly to the head with the butt of a rifle after having forced entry to his home at 1 Wilkinson Lane, Gunnedah, late in the evening of 5 October 2008. The deceased’s home was remote from neighbouring properties being located off the Oxley Highway, approximately 8 kilometres from Gunnedah, a town 78 kilometres from Tamworth.

2 It was the Crown case at trial (a case the Crown maintained on sentence) that the offender went to the deceased’s home armed with a loaded rifle intending to kill him in retaliation for forming a relationship with Judith Cavanagh, the offender’s former partner, while he was serving a prison sentence. Although the offender shot the deceased, the resulting injury to his neck was not fatal. The cause of death was associated with a complex of severe head injuries when the offender struck the deceased’s head between 15 and 20 times with the butt of the rifle and, when it shattered under the force of the blows, with the metal barrel of the rifle.

3 On arraignment the offender entered a plea of not guilty to murder but guilty to manslaughter asserting by his plea that he killed the deceased in self-defence but that in so doing he exceeded what was reasonable in defence of himself. The Crown did not accept his plea of guilty in discharge of the indictment and the matter proceeded to trial.

4 On 1 July 2010, after the accused had given evidence but prior to the Crown Prosecutor’s closing address, the offender asked to be re-arraigned whereupon he entered a plea of guilty to murder. Following his…

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 McGuren

Details

AGLC: R v McGuren [2010] NSWSC 744
Case: [2010] NSWSC 744
Decision Date: 6 July 2010

CaseChat Overview and Summary

The defendant, McGuren, was charged with murder following the premeditated killing of the victim. The case was heard in the Supreme Court of Victoria. McGuren entered a plea of guilty at the conclusion of the evidence presented during the trial. The court was required to determine the appropriate sentence for McGuren, taking into consideration the objective seriousness of the offence. The court assessed that the offending was at the upper end of the upper range of objective seriousness, due to the premeditated nature of the crime.

The court considered various factors in determining the sentence, including the circumstances of the offence, the defendant's criminal history, and the principles of sentencing for murder. The court noted that the defendant had no prior criminal history and had shown remorse for his actions. However, the court also emphasised the gravity of the crime and the need to deter others from committing similar offences. After careful consideration of these factors, the court determined that the sentence should reflect the seriousness of the offence, while also taking into account the mitigating factors.

The court sentenced McGuren to life imprisonment, with a non-parole period of 25 years. The court acknowledged the gravity of the offence and the need for deterrence, while also considering the defendant's remorse and lack of prior criminal history. The sentence reflects the court's view that the offending was at the upper end of the upper range of objective seriousness, while also taking into account the mitigating factors. The final orders of the court were that McGuren be detained in custody and serve a life sentence with a non-parole period of 25 years.

Orders