R v Brian Michael Magus [2015] NSWDC 149

District Court New South Wales

Medium Neutral Citation: R v Brian Michael Magus [2015] NSWDC 149 Hearing dates: 29 July 2015 Decision date: 07 August 2015 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Custodial sentence imposed. For orders see [38] Catchwords: Wounding with intent to cause grievous bodily harm Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cahadi v R (2007) 168 ACrimR 41 Pearce v R (1998) 194 CLR 610 Veen v R No. 2 (1998) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (Crown) Brian Michael Magus (Offender) Representation: Counsel: K Mulley (Crown) M Carr (Offender)

Solicitors: File Number(s): 14/229413 Publication restriction: Nil

REMARKS ON SENTENCE 1. The offender has entered a plea of guilty to an offence of wound with intent to cause grievous bodily harm pursuant to s 33(1)(a) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years imprisonment. 2. The offender has asked that an offence of specially aggravated break and enter with intent to commit grievous bodily harm pursuant to s 113(3) of the Crimes Act 1900 be taken into account by way of a Form 1. That offence carries a maximum penalty of 20 years imprisonment. 3. The offences occurred on 2 August 2014 and the offender was arrested on 4 August 2014. He spent 77 days in custody before being released to bail.

The Circumstances of the Offending 1. The Agreed Facts (exhibit A) record that on 2 August 2014 the offender drove past premises at Fingal Bay where he observed two male persons known to him at the front of the property. The offender stopped his car and proceeded to have an argument with one of those men, in which threats were made. The facts record that the offender said to one of the men "I'm prepared to go to gaol to see you dead", and he then drove off. 2. About five to 10 minutes later, the offender again drove past the premises with an unknown male in his car. Again, he stopped the vehicle, and another argument took place in which the parties threatened each other. After five minutes the offender drove off. 3. Sometime later on that same morning, the offender returned to the property with three males, one of whom was the co-offender, Ryan West. Two of the males wore balaclavas. When they exited the offender's vehicle, all four males were armed with either baseball bats or pieces of wood. 4. The males forced entry into the premises by ripping the mesh from the front security door and opening the closed front door. By this time, the victims had exited from the back door of the premises and ran to the front yard. The offender and the three males then chased the victims to the front yard and surrounded them. The offender threw a scooter at the older male, which hit his chest. The older male was then felled by a strike with a metal bar across his back and shoulder. When he tried to get up, the offender hit him around the head and ankles with a lump of wood, whilst another male was hitting him with a metal bar. That person was wearing a stretch balaclava and was identified as a person known as "Pola". 5. At the same time, another co-offender was using a small blue metal bat to hit the younger male. After a short time, the four men left the premises. 6. As a result of the assault, the older male received the following injuries: 1. 1cm wound to the left eyebrow which required two sutures 2. Two large wounds to his head over the scalp, each approximately 8cm in length. One required 11 staples and the other 7. 3. Large boggy swelling and bruising to the right scalp parietal region, approximately 8cm in length. 4. Moderate bruising and swelling to the left elbow with an epidermal wound and a fracture. The fracture required operative repair and fixation. There was injury to the nerves in the left arm, the prognosis of which is guarded. 5. Bruising and abrasions to the left upper abdomen and tenderness and bruising to the left chest wall 6. Bruising and swelling to the left lower leg 7. Bruising and pain on movement of left mid foot region 8. Mild bruising over the left wrist 1. Following his arrest, the offender participated in a police interview in which he denied any involvement in the offence. Later that day he underwent a second interview when he made a number of admissions in respect of the matter.