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R v Misiepo

R v Misiepo

Case [2016] NSWSC 565 19 February 2016

Sentencing

Excessive Self-Defence

Mens Rea & Intention

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Misiepo [2016] NSWSC 565
Hearing dates: 19/10/15-5/11/15; 5/2/16
Decision date: 19 February 2016
Jurisdiction: Common Law - Criminal
Before: Hall J
Decision:
Offender sentenced to a term of imprisonment of 12 years comprising:

(1) A non-parole period of 9 years commencing on 28 July 2014 and expiring on 27 July 2023.
(2) A balance of term of three years expiring on 27 July 2026.
Catchwords: SENTENCING – excessive self-defence manslaughter – evaluation of the degree to which the offender’s response exceeded that of what would be a reasonable response in the circumstances – offender armed himself with a knife believing the victim may have been a member of an outlaw motorcycle gang – victim was not armed – offender was the aggressor who stabbed the unarmed victim three times with a knife – response not a reasonable one as the offender perceived them – the response was an extreme one – intention to inflict grievous bodily harm – objective gravity of the offence of manslaughter by excessive self-defence was of a high order – offender had previous record of convictions for serious personal violence offences
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Markarian v R (2005) HCA 25; 228 CLR 357
Pitts v R [2014] NSWCCA 244
R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995, unreported)
R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145
R v Forbes [2005] NSWCCA 377
R v Lavender (2005) 222 CLR 67
R v MacDonell (NSWCCA, 8 December 1995, unreported)
R v Misiepo [2005] NSWCCA 405
R v Oinonen [1999] NSWCCA 310
R v Olbrich (1999) 199 CLR 270
R v Pennisi [2001] NSWCCA 326
R v Thomson; R v Houlton [2000] NSWCCA 309; 115 A Crim R 104
Smith v R [2015] NSWCCA 193
Category: Sentence
Parties: Regina (Crown)
Chad Frederick Misiepo (Offender)
Representation:
Counsel:
BG Campbell (Crown)
D Carroll (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Sydney Criminal & Traffic Lawyers (Offender)

File Number(s): 2014/5390

REMARKS ON SENTENCE

The offender, Chad Frederick Misiepo, stands for sentence in respect of his conviction for the offence of the manslaughter of Peter Martyn in the early hours of the morning of 1 January 2014 in Port Macquarie.
On 19 October 2015, the offender was arraigned on indictment with the murder of Mr Martyn. The trial commenced on that date in Coffs Harbour. On 5 November 2015, the jury returned verdicts of not guilty of murder and a verdict of guilty of manslaughter.
The defence case was conducted at trial upon the basis that the offender was not the person who inflicted the fatal wound upon the deceased but that it was done by another male person. In the defence closing address it was argued that Reece Barnes had been responsible for the stabbing 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 Misiepo

Details

AGLC: R v Misiepo [2016] NSWSC 565
Case: [2016] NSWSC 565
Decision Date: 19 February 2016

CaseChat Overview and Summary

In the matter of R v Misiepo, the offender was convicted of manslaughter by excessive self-defence. The defendant armed himself with a knife and attacked the victim, who was unarmed, resulting in the victim's death. The victim was not armed, and the defendant was the aggressor in the encounter. The High Court of Australia was tasked with evaluating the sentence for this offence, focusing on the degree to which the defendant's response exceeded a reasonable one in the given circumstances.

The legal issues before the court involved determining whether the defendant's response was a reasonable one and, if not, to what extent it exceeded what would be deemed reasonable. The court considered whether the defendant's perception of the threat was justified and whether the response was proportionate to the actual threat. Additionally, the court had to assess the objective gravity of the offence, given the defendant's previous convictions for serious personal violence offences.

The court held that the defendant's response was not a reasonable one, as he perceived it to be, and was instead extreme. The defendant armed himself with a knife and attacked the victim three times with the intention of inflicting grievous bodily harm. The court emphasised that the objective gravity of the offence was of a high order due to the defendant's previous convictions and the circumstances of the attack. The court ultimately determined the appropriate sentence, taking into account the excessive nature of the defendant's response and his criminal history.

The court ordered the defendant to serve a sentence reflecting the severity of the crime, considering both the excessive self-defence and the defendant's history of violence. The sentence was intended to reflect the gravity of the offence and provide appropriate deterrence and rehabilitation for the defendant.

Orders