R v McGuiness [2016] NSWSC 1806

Supreme Court New South Wales

Medium Neutral Citation: R v McGuiness [2016] NSWSC 1806 Hearing dates: 9 December 2016 Decision date: 15 December 2016 Before: R A Hulme J Decision: Imprisonment for 8 years 6 months with a non-parole period of 6 years 4 months Catchwords: CRIMINAL LAW – sentence – manslaughter – excessive self-defence – where offender produced and used a knife while being assaulted – where the deceased initiated and gained the upper hand in the assault – intention to inflict really serious harm – offence of moderate objective seriousness – guilty plea on first day of trial – remorse shown – criminal history confined to one offence of violence committed shortly before index offence – reasonable prospects of rehabilitation – general and specific deterrence important considerations Legislation Cited: Crimes Act 1900 (NSW) ss 18, 24 Crimes (Sentencing Procedure) Act 1999 (NSW) s 59 Category: Sentence Parties: Regina Stephen McGuiness Representation: Counsel: Mr T Thorpe (Crown) Mr M Ierace SC (Offender)

Solicitors: Solicitor for Public Prosecutions Birchgrove Legal File Number(s): 2015/63116

Judgment 1. HIS HONOUR: Stephen McGuiness ("the offender") was to be tried on a charge of murder but on what was to be the first day of the trial the Crown presented a new indictment charging an offence of manslaughter. A plea of guilty was entered and the matter was stood over for the hearing of evidence and submissions on sentence on 9 December 2016.

Facts 1. On the afternoon of 28 February 2015, David Campbell ("the deceased"), aged 26, drove with two friends, Scott Wilson, aged 25, and Jordon Morris, to Macquarie Park, Windsor. Macquarie Park is alongside the Hawkesbury River with a beach surrounded by parkland. All three men had previously been drinking beer, vodka and bourbon at Mr Wilson's home nearby. They were in a Commodore station wagon owned by Mr Wilson and being driven by the deceased. 2. While at the river the three men drank more alcohol. They proceeded to leave Macquarie Park at about 6.50pm, intending to return to Mr Wilson's home. They were in the Commodore and the deceased was driving. In order to exit the car park, he slowed down to negotiate a speed hump. As he did so, the offender was in the front passenger seat of a Nissan Skyline which was entering Macquarie Park. 3. The Skyline was being driven by Jack Denaija, aged 19. Aden Temlett, aged 19 and David Ahearne, aged 20, were in the back seat. They had arranged to meet friends in other vehicles at Macquarie Park. Two had already arrived in a Suzuki Sierra, and were waiting in the car park; Andrew Thompson and Matthew Smith, both aged 19. 4. As the vehicles approached and slowed for the speed hump, there was an incident. According to Mr Wilson, the occupants of the Skyline gave them a "death stare", with nothing being said by the occupants of either vehicle. Mr Wilson told the deceased, "Let's just go", but the deceased instead did a U-turn and followed the Skyline back into the carpark. 5. According to the occupants of the Skyline, the occupants of the Commodore were staring at them. Mr Temlett said the driver of the Commodore, that is the deceased, said: "What the fuck are you looking at". No-one in the Skyline responded and the Skyline continued into the carpark, pulling up near the Sierra. 6. The deceased pulled up in the Commodore nearby. According to Mr Wilson, he (Mr Wilson) got out and walked towards Mr Denaija with his fists up, ready to fight. He started swinging and trying to punch Mr Denaija. Mr Wilson could not recall if he said something first. According to Mr Temlett, immediately before trying to punch Mr Denaija, Mr Wilson said, "What's your fucken problem?" and Mr Denaija replied, "There is no problem". 7. At about this time the deceased approached the offender, who had alighted from the passenger side of the Skyline. The deceased had his shirt off and according to an independent witness said, "Come on, fight me," as he pushed at the offender's chest. The offender was seen to back away with his hands up in front of him, his open palms facing the deceased, stating that he did not want to fight. The deceased then punched the offender to the head, causing him to fall to the ground. The offender got to his feet and punched the deceased, who fell to the ground. The offender said to the deceased, "Stay down." However, the deceased got back up and continued punching the offender. 8. Independent witnesses described the deceased gaining the upper hand in the ensuing fist fight. At one point the deceased pulled the offender's shirt over his head and was seen to then deliver four uppercut punches to the offender's head, while the offender continued to move backwards. 9. At this point the offender used a knife to stab the deceased once to the neck. The deceased stumbled back and said words to the effect of "He stabbed me". It was clarified at the sentence hearing that the offender's shirt was still over his head at the time of the stabbing. Thus, it cannot be said that he particularly aimed to stab the deceased in the neck. All that can be said is that he directed the knife towards the deceased's upper body. 10. Mr Denaija and the offender ran to the Skyline and they drove away from the scene. 11. The deceased had collapsed. A number of witnesses to the incident went to assist. An emergency call to triple 0 was made. However, the deceased died shortly after. 12. Not long after leaving the carpark the Skyline crashed into a fence in St Marys Road, Llandilo. The offender fled the scene whilst Mr Denaija remained and was arrested by Police. 13. An investigation was commenced and police took a number of statements from witnesses. As a result of information received, police arrested the offender at his home in the early hours of the following morning, being 1 March 2015. Police observed a number of injuries to his nose and right eye which had swelling. 14. In an interview with police the offender said that he received the injuries as a result of hitting his face on a bed head earlier on the morning of 28 February 2015. He also claimed to have received bruising from picking up furniture. He said he did not travel to Windsor that day, and denied fighting with anyone. He denied being at the car park area. He also denied being in a motor vehicle accident at Llandilo after the incident. He denied stabbing anyone. 15. An autopsy examination of the body of the deceased was carried out. Bruising and abrasions to the body were noted. The cause of death was found to be a stab wound to the right front side of the neck which extended through muscle, a vein and an artery down into the lung cavity. Subsequent blood analysis tests disclosed that the blood alcohol content of the deceased was 0.138g/100ml.