R v McGuren [2010] NSWSC 744

New South Wales Supreme Court

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

Knight v R [2006] NSWCCA 292; 164 A Crim R 126 CASES CITED : 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.