Supreme Court New South Wales Medium Neutral Citation: R v Magro [2019] NSWSC 343 Hearing dates: 9 November 2018; 29 March 2019 Date of orders: 29 March 2019 Decision date: 29 March 2019 Jurisdiction: Common Law Before: Wilson J Decision: 1 Joshua Magro is convicted of the offence of firing a firearm near a public place. He is convicted of the offence of the manslaughter of Ricardo Coleman. 2 An aggregate sentence will be imposed upon the offender pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3 The offender is sentenced to imprisonment for 16 years, to date from 12 November 2016, expiring on 11 November 2032. There will be a non-parole period of 12 years, expiring on 11 November 2028. The earliest possible release date is 11 November 2028. 4 The sentences that would have been imposed had separate sentences been fixed are: (1) For count 1, a term of 4 years and 6 months imprisonment; (2) For count 2, a term of 15 years and 3 months imprisonment. 5 The offender is advised that the Crimes (High Risk Offenders) Act 2006 NSW may apply to him. Catchwords: CRIMINAL LAW – trial for murder – verdict of not guilty of murder but guilty of manslaughter – excessive self defence – use of firearm during verbal argument – single shot to chest of deceased – force used vastly exceeded perceived threat Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: Elias v The Queen (2013) 248 CLR 483 Gilson v The Queen (1991) 172 CLR 353 Imbornone v R [2017] NSWCCA 144 Markarian v The Queen (2005) 228 CLR 357 Merrick v R [2017] NSWCCA 264 R v Oinonen [1999] NSWCCA 310 R v Quatami [2001] NSWCCA 353 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Weininger v The Queen [2003] HCA 14; 212 CLR 629 Category: Sentence Parties: Regina Joshua Magro Representation: Counsel: Crown – Mr G Newton Accused – Mr P Young SC Solicitors: Crown – Solicitor for Public Prosecutions (NSW) Accused – Legal Aid File Number(s): 2016/338884 Publication restriction: None Judgment 1. HER HONOUR: On Remembrance Day 2016 Ricardo Coleman was shot once to the neck and killed. Joshua Magro, wielding a gun he should never have had, killed him. Today, the Court must sentence the offender for that and a related crime. 2. It is customary to commence remarks such as these with an outline of the circumstances of the crimes, and later to give an account of those of the offender. Instead, I intend to say something about Ricardo Coleman, and to acknowledge immediately the terrible grief that his death has caused. The gravity of the offence of manslaughter, after all, derives from the enormity of a crime that violently, and unlawfully, takes a human life, with all of the awful consequences that flow from such an act. 3. Ricardo Coleman was born on 30 November 1995. On the day he died he was just a few weeks short of his 21st birthday, the traditional milestone marking a young person's coming of age. He was the eldest son to his mother Skye, and older brother to his siblings Lakota and Dominic. He was a grandson, nephew, and friend. The victim impact statements tendered, and read so movingly to the Court, make clear how much he loved his family and friends, and how much he was loved. Over four hundred people attended his funeral. 4. The death of Ricardo Coleman has left not just an unfillable hole in the lives of his loved ones, but also the more assessable consequences of trauma: severe depression, post-traumatic stress disorder, anxiety, suicide attempts, pain that continues on. The operation of the criminal justice system itself has heightened the pain, as Ricardo's family and friends sat through a criminal trial in which they watched as footage of him being shot was played to witnesses and the jury over and over again. Although it took great courage and endurance, on each and every day of the trial proceedings Ricardo's family was present. Their attendance did honour to his life and his memory. 5. In her victim impact statement, Skye Hipwell said that she and her family have been sentenced to a life of pain, from which no release is possible. She contrasted that with the inevitability of the future release of the offender. 6. The offender will be released, after serving a term of imprisonment for his crimes, and his life will go on. It is likely that the sentence imposed on Joshua Magro today will seem completely inadequate to Ms Hipwell and her family, and they will feel badly let down by the Court. I hope that they can understand however, that the sentence announced is not, and could never be a measure of the life of Ricardo. No court could reflect the value of his life, or the depth of grief his death has caused, by a sentence of so many years and months of imprisonment for his killer. The measure of Ricardo Coleman's life is the depth of the love others had for him, and the memories of him that they will forever hold. The Offences 1. Joshua Magro will be sentenced for two offences: the manslaughter of Ricardo Coleman (being count 2 of the indictment), to which I have already referred, and firing a firearm near a public place, being count 1. The former is an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), and carries a maximum sentence of 25 years imprisonment. The latter is an offence contrary to s 93G(1)(b) of that Act and carries a maximum sentence of 10 years imprisonment. Neither offence attracts a standard non-parole period. 2. The maximum sentences specified by the legislation operate as a yardstick to the Court in assessing the sentences to be imposed: Gilson v The Queen (1991) 172 CLR 353 at 364; Markarian v The Queen (2005) 228 CLR 357 at [31]; Elias v The Queen (2013) 248 CLR 483 at [27]. 3. To sentence the offender, the Court must determine the facts of the crimes, consistent with the verdicts returned by the jury. Facts adverse to the interests of the offender must be established beyond reasonable doubt. Matters in mitigation of penalty are to be proved by the offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28]. It may not be possible, or necessary, to resolve all disputed issues of fact. There may be issues which are not determined in a way that goes either to increase or decrease the sentence to be imposed: Weininger v The Queen [2003] HCA 14; 212 CLR 629 at 636-637 [19], [22]. 4. Both crimes for which the offender is to be sentenced were committed on the evening of 11 November 2016. 5. They had their origins in a dispute of the previous day between the offender and Mr Coleman's brother, during which the offender chased the much younger boy down the street. I am satisfied of that, from the evidence of Dominic Coleman, and from that extracted from Ihimaera McDonald in cross-examination pursuant to s 38 of the Evidence Act 1995 (NSW), consistent with the witness' early account of the event to police in his statement. 6. The thuggish attack on Dominic Coleman was reported in the Coleman home and Ricardo Coleman later received an account of events, probably distorted through mishearing and repetition. Seeing the offender in the street on the evening of 10 November 2016 he assaulted him, with his brother joining in the attack. 7. Footage of the assault was in evidence at the trial and it shows that the offender was thrown into the ground and kicked repeatedly. Afterwards, he walked home, displaying obvious injuries such as lacerations and contusions, injuries depicted in trial Ex. O. His family called an ambulance, and he was taken to hospital, although he did not remain there, returning home. 8. When he was later examined by Dr Claire Skinner, on 12 November 2016, the doctor observed a small bruise to the offender's right eye area with some small areas of haemorrhage to the conjunctiva of that eye. The offender reported tenderness over his right cheekbone and left torso. 9. Angered by the attack upon him, the offender retaliated the following day, 11 November 2016, by going to the Coleman home in company with other men, and vandalising the premises and a car parked there. He is not to be sentenced for that conduct, but it does inform later events, and his state of mind at about the time. 10. Learning of the damage from a telephone conversation with his mother, Mr Coleman returned home. He was angry and distressed, expressing concern to Ms Hipwell that she or his sister could have been in danger had they been at home at the time the damage was done. He telephoned friends to come and "watch his back" and, telling his mother he would be back in a minute, Mr Coleman and a group of his friends walked off in the direction of the offender's home. 11. There are conflicting accounts of what happened on the arrival of the group. I have, generally, preferred the accounts of independent witnesses, and of those who accompanied Mr Coleman, to that of the offender in his second interview with police, or to the evidence of his mother, Melissa Magro. 12. The offender gave two versions of the shooting. In the first, during an interview with police on the afternoon of 12 November 2016 (trial Ex. V) he gave an exaggerated account of the assault upon him on 10 November 2016, and an entirely false account of the shooting. He asserted that he had been "dragged" up the road by a group of men, who circled him, and pushed him to the ground. He said that he heard a "bang" when he was on the ground, but denied any knowledge of a shooting, or having firearms in his house. The offender seemed to be feigning illness or some mental disability throughout. 13. About an hour later, by that time aware of both Mr Coleman's death and the existence of footage showing the shooting, the offender was reinterviewed at his own request. It was in this interview that the issue of self-defence was raised for the first time, with the offender telling police that he shot someone in the arm, because he thought "they" were going to kill his mother and family. He claimed that "there were heaps of them" "going crazy" and he believed they would kill his parents, presumably meaning his mother and grandmother. He demonstrated his action in discharging the gun. 14. Although the offender assured the police officers who interviewed him that he was "not lying" almost no part of the account he gave in the second interview is consistent with independent and objective evidence, and I do not accept his second version of events, any more than I accept his first. Both consisted of self-serving lies. The only thing that can be accepted is that the offender deliberately discharged the gun at Ricardo Coleman and that, at the time, he believed it was necessary to act in his own defence. 15. As for Melissa Magro's evidence, I do not accept any part of her testimony as either truthful or accurate, and have set it entirely aside. 16. On the basis of the evidence given in particular by Harry O'Brien, Shane Towney (senior), Shane Towney (junior), Candace Frith-Loh, and her husband Benjamin Frith, together with the footage of the shooting recorded by Ms Frith-Loh, the following facts are established beyond reasonable doubt. 17. Mr Coleman and five other men walked to the offender's home on the late evening of 11 November 2016. On arrival there, Mr Coleman began shouting out to the occupants that he wanted to speak to them and demanding they come outside. He went onto the driveway of the property, and a short distance along it towards the house. His friends remained on the footpath, and did not enter the property or call out in any way. 18. The offender, who had armed himself with a loaded gun, came out onto the verandah of the house, which was at some height above the driveway. In that location he was in no danger at all of anything other than verbal abuse. His mother followed him onto the verandah. 19. The offender began to yell back at Mr Coleman, swearing and shouting at him to leave. He was waving the gun about so that it could be seen. Mr Coleman moved backwards down the driveway, onto or close to the footpath. 20. Although there was no reason at all to do so, the offender descended the stairs from his verandah, followed closely by his mother, and moved quickly towards Mr Coleman. He was swearing and threatening Mr Coleman and his friends, and shouting abuse at them. He had the gun in his hand and his demeanour and tone were very aggressive. As a demonstration of force, he raised the gun and pointed it generally upwards, discharging it (count 1). Like the jury, I do not accept that the offender could have, or did, believe that this act was necessary in self-defence. 21. The offender was probably at the bottom of the verandah stairs or on the ground in front of them when he discharged the first shot. 22. A noise like a firecracker could be heard, and there was a flash of light. Some of Mr Coleman's friends thought that the offender had a capgun. Ms Frith-Loh, watching from across the street, heard the gun discharge, and asked her husband for his phone so that she could film what was taking place. 23. Ricardo Coleman became angry, and pulled his shirt off, as if in readiness for a fist fight. Both Shane Towney senior and Harry O'Brien were urging Mr Coleman to come away, and not worry about it. He turned and walked back along the roadway in the direction of his home, getting about 15 metres or so away from the offender's house. 24. In that he was walking away from the verbal conflict, the incident could have ended there. However, the offender followed Mr Coleman and his friends, aggressively shouting death threats and abuse. The offender was agitated, jumping around, pointing at the group, and saying he would kill them. He raised the gun on a couple of occasions, and lowered it again. The tone he was using was described by Ms Frith-Loh as "bloodcurdling". She rejected a suggestion that he had sounded fearful or desperate. 25. At that point, having been pursued by the offender, Mr Coleman turned back towards him and his mother, telling them to "fuck off" and questioning why they were following his group. He told Melissa Magro to shut her mouth, saying it was her son he wanted to talk to. Mr Coleman was jumping up and down in agitation, and he said something to the offender about having a fight, or sorting it out. He was angry, and took a step or two towards the offender. There was about two metres between him and the offender. 26. The offender, who was also angry, and moving in an aggressive and intimidating way, raised his arm to take aim at Mr Coleman, and shot him in the neck at short range. It was done deliberately and, in that he took aim at Mr Coleman, I have concluded that it was done with an intention to kill him. 27. Consistent with the verdict of the jury, at the point at which he raised, aimed, and discharged the gun at Mr Coleman, the offender believed he was in danger of being assaulted as he had been the previous day and took defensive action. I do not accept that the offender was fearful for his mother, and even less that he held concerns for his grandmother. 28. Neither Mr Coleman nor anyone in his group had made any move towards Melissa Magro; as Candace Frith-Loh observed, Mr Coleman's friends conducted themselves in a respectful way, and the aggressive exchange was confined to Mr Coleman and the offender, with Melissa Magro the only other person shouting. Mr Coleman made it clear that his argument was with the offender for having smashed his mother's car and house, and frightened her. 29. However, with the assault of the previous day operating on his mind, the offender felt intimidated when Mr Coleman moved forward those couple of steps, and feared that he would again be assaulted; he shot Mr Coleman to defend himself from a further assault. 30. His response to the threat that he perceived was offered to him by Mr Coleman was vastly disproportionate, and wholly unreasonable. It went well beyond what was necessary in his defence. 31. Mr Coleman clutched the wound and said to his friends that he had been shot. He and his friends turned and ran back towards the Coleman home. On reaching the driveway of his house, Mr Coleman collapsed. Ms Hipwell was already on the telephone reporting the damage done at her home; she asked for an ambulance. She went to her son and cradled him in her arms, holding him, and trying to help him, until ambulance officers arrived. 32. Mr Coleman was transferred to hospital, but was pronounced dead soon after arrival. The Gravity of the Crimes 1. There are a number of features of these crimes which render each a particularly grave example of an offence of their respective type. 2. The offender discharged the loaded gun at an early stage in the brief verbal altercation between him and Mr Coleman, in circumstances where a number of people were in the immediate vicinity, and placed in jeopardy by his act. Although the evidence is that the offender raised the gun and shot above head height, the shot was towards the public footpath and adjacent roadway. The offender's conduct was inherently dangerous. Mr Coleman and his friends were placed in jeopardy, but so too were persons passing by in cars or, like Ms Frith-Loh and her husband, on foot, along a very busy major road, only metres from a large suburban shopping centre, at an hour of the evening when there was a strong likelihood that there would be numerous people in the area as, on the evidence, there were. 3. It is not an element of an offence contrary to s 93G(1)(b) of the Crimes Act that people are nearby or endangered by the discharge of the firearm. That this was so in this instance heightens the seriousness of the conduct. 4. Further, the discharge of firearms in or near a busy and very public place such as Windsor Road causes fear in the community, and contributes to a perception, detrimental to society, that gun crime is prevalent, and no-one is safe. 5. The offender discharged the gun as part of an overall display of swaggering aggression towards Mr Coleman and his friends: it was an act of bravado, done to impress upon Mr Coleman and his friends that the offender was a man with a gun, and they would be foolish to challenge him. 6. These features of the offence make it a very grave example of such a crime. 7. The circumstances surrounding the killing of Mr Coleman also combine to make this a particularly serious example of manslaughter. 8. Although it was undoubtedly Mr Coleman who brought an argument to the offender's home, and himself behaved in an aggressive manner, the offender was perfectly safe inside his home. There was no need for him to leave it, and no need for him to engage Mr Coleman in a manner which, on all credible evidence, was intimidating and threatening. That he did so is evidence of the anger he felt and his desire for vengeance for the assault of the previous day, feelings which had already led him to damage property at Ms Hipwell's home. 9. The offender carried the dispute into a public place, and escalated it dramatically. Had he remained inside his home and telephoned police, Mr Coleman would not be dead, and the offender would not be in prison or, at least, not facing sentence for manslaughter. 10. He also introduced a dangerous and illegal weapon into what was a verbal conflict, and did so not from fear or need, but to inspire fear, and to intimidate, to show in a blustering display that he was a man to be taken seriously. 11. The offender was, as the jury must have accepted, affected by the assault upon him of the previous day, and fearful of a repetition of it. With that background, and believing he had to defend himself, he used the gun in circumstances where his overall conduct had been aggressive, involving threats, and prominent displays of the gun with which he had deliberately armed himself. 12. Discharging a gun to deal with a verbal conflict or, at worst, one that the offender feared could become a physical fight with an unarmed protagonist, represents an extraordinarily disproportionate response to the perceived threat. 13. As a consequence of the offender using a firearm on this evening, the life of a young man of twenty years, with all of his future before him, was extinguished. In that a gun was fired on a busy public street, others were put at risk. 14. The offender's culpability is high. 15. This is an instance of manslaughter which, in my assessment, is very grave indeed. It falls towards the top of that range discussed in R v Trevenna (2004) 149 A Crim R 505; [2004] NSWCCA 43, at [42], citing R v Duke [2000] SASC 254; and R v Weinman (1987) 49 SASR 248. Other Matters relevant to the Determination of Sentence The Offer of a Plea of Guilty in the Local Court 1. Prior to this matter proceeding as a committal for trial, the offender advised the Crown that he would enter a plea of guilty to the statutory alternative in full satisfaction of the charge of murder. The Crown did not accept that offer. The offer, made by correspondence dated 15 May 2017, is before the Court as Ex. SJ. 2. The offender contends that he should receive the benefit of that offer, as if it were a plea to count 2 entered in the Local Court, because it was fairly open to the Crown to accept it. He argues that, although no facts had been settled, it was open to the Crown to discuss that aspect of the plea offer, something rendered impossible by the Crown's attitude, rather than through any intransigence of the offender. 3. No offer of a plea was made with respect to count 1 and the question of a discount on sentence does not arise. 4. In oral submission, the Crown modified its earlier position on the question of a discount on sentence, submitting that the plea offer was "squarely in Merrick territory", a reference to Merrick v R [2017] NSWCCA 264, at [99] – [123]. The Crown submitted that it was open to the Court to allow either no reduction in sentence, or a lesser reduction than the usual 25%, since the offender's only account of the shooting was one which was contradicted by objective evidence, and which the Crown could not have accepted. 5. As in Merrick, on arraignment before the jury at trial, the offender did not enter the foreshadowed plea to the alternative charge. His case was one of self-defence, and he invited the jury to acquit him outright. 6. The only account the offender gave of the shooting that was before the jury was one inconsistent with the facts established by the evidence at trial. That account was given only after the offender had insisted upon the truth of a series of unconvincing lies given in his first police interview. 7. The observations of the Court of Criminal Appeal in Merrick, particularly at [109] and [120] – [121] are apposite in my view. The plea offered to manslaughter on the basis of excessive self-defence made by the offender relied upon evidence of the assault upon him on 10 November 2016, and the impact of that assault on his state of mind, to assert that the Crown could not negative self-defence. It did not, however, disclose the circumstances and degree of culpability intended to be acknowledged by him, and it is not possible to make any comparison between it and the credible evidence given at trial to assess the potential utilitarian value of the offer. 8. The version of events given by the offender, to which reference was made in the offer of the plea, was one greatly at odds with the facts the Court has accepted as proved beyond reasonable doubt. The criminality of the offender's conduct as described by him in the second police interview is significantly below the criminality the Court has found established. 9. For the same reasons as enunciated in Merrick, I do not think any great utilitarian value flowed from the offered plea from the offender. There is nothing before the Court to suggest that the offender would have acknowledged the facts of the shooting as they have been established before this Court at trial or, indeed, that any facts acceptable to the Crown could have been agreed. 10. This is not a case similar to R v Oinonen [1999] NSWCCA 310 where the offender never disputed the circumstances of the killing as established by evidence at trial. Mr Magro has both denied any responsibility at all for the crime, and greatly exaggerated the threat he said he faced when discharging the weapon, such as his assertion that he thought his "parents" would be killed and his mother raped. His assertion by a demonstration that he discharged the gun with closed eyes in an undirected way, is contrary to the objective and independent evidence that establishes that he raised the gun and pointed it directly at Mr Coleman. 11. Although this was not available to the parties prior to committal, in an account given by the offender to Dr Richard Furst, to which I shall return, he falsely asserted that a group of up to ten men threatened to rape his mother, that he believed that she would be killed, and that the gun in his possession "went off" although he believed he did not mean for it to. 12. In those circumstances, I propose to allow a modest discount of 10% on sentence for the offence of manslaughter, in recognition of the limited utilitarian value that may have flowed to the criminal justice system as a consequence of the offender's offer of a plea. The offender's criminal history 1. The offender's criminal background commenced with convictions in April 2006 for offences of resisting police in the execution of duty and offensive language, dealt with by way of fine. At the same time, the offender was dealt with for later offences of supplying a prohibited drug, assaulting a police officer in the execution of duty, two counts of resisting an officer, and escaping police custody. He was placed on bonds pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), one of which was conditional upon him accepting supervision directed to drug and alcohol rehabilitation. 2. His record disentitles him to the leniency that might otherwise have been extended to him. 3. In December 2018 the offender was dealt with for an institutional offence of refusing or failing a drug sample. Whilst a version of the circumstances surrounding the breach has been advanced from the Bar Table, I would not accept it in the absence of evidence or some other credible confirmation of it. The offender's refusal or failure of a drug sample suggests his continuing use of illicit drugs in custody, something he acknowledged to Dr Kerri Eagle in any event. Other Offences 1. As a consequence of his arrest for these offences, the offender's possession of a large number of illicit weapons was discovered. Ex. SC provides a full list of the items seized by police, items including the revolver used to shoot Mr Coleman, a shortened repeating bolt-action rifle, a 9mm calibre air gun that mimicked the appearance of a sub-machine gun, a second revolver, a number of torches with internal blades, knuckle dusters, tasers, and ammunition. It would appear from the observations of Benjamin Carroll (Ex. SD) that the offender has been interested in, and possessed, illegal and highly dangerous weapons for some time prior to the commission of these offences. 2. The offender is to be dealt with in the District Court for his possession of weapons and ammunition, as well as for a number of offences of supplying a prohibited drug and dealing with the proceeds of crime later this year. Psychiatric Evidence 1. The offender relies upon two reports from Dr Richard Furst, Exs S1 and S2. 2. Much of the information provided by Dr Furst, and upon which he based his opinions, is derived from the offender. The offender did not give evidence before this Court. Particularly bearing in mind the lies told by him to police, and the incredible and inconsistent account of the events of 11 November 2016 given by him to both doctors, I am not prepared to accept on the balance of probabilities those matters asserted by the offender to Dr Furst: R v Quatami [2001] NSWCCA 353 at [58] – [59]; Imbornone v R [2017] NSWCCA 144 at [57]. I do accept those aspects of the history derived from medical records. 3. The objectively ascertainable history establishes that the defendant suffered some sort of back injury as a consequence of trauma to nerves when working as a labourer on a building site when he was aged 18. He has experienced chronic pain ever since, and has been prescribed an array of medications for pain maintenance, as well as other therapies, such as hydrotherapy. 4. The offender was treated for anxiety and depression at around the time he sustained his injury. 5. He has taken excessive doses of pain relief medication and illicit drugs over the years and, as a probable consequence of abruptly stopping opiate and other medications on entering custody, he became acutely confused. He was admitted to hospital for management of his confused and delirious state, which was very serious. 6. The offender told Dr Furst he has used illicit drugs over many years. Contrary to his criminal history, he claimed never to have received any formal drug and alcohol counselling. 7. At the time of the commission of the offences the offender said to Dr Furst that he was living with his mother and grandmother, was unemployed, and using both prescribed and illegal drugs. 8. He gave the doctor an account of events surrounding the offences which is inconsistent with independent and objective evidence, and contrary to the conclusions of fact the Court has reached. I regard his claims to the doctor as false and self-serving. The offender's assertions include claims that as many as "ten guys" came to his house; that they threatened to "rape" his mother; that his mother was screaming and he thought she was being assaulted; and that the weapon he had "went off", although he did not believe he intentionally discharged it. These statements are no more than indications of the offender's unreliability. 9. On examination Dr Furst noted that the offender was a 31 year old man with no signs of delirium or psychosis, and who was not depressed. He concluded that the offender has a substance dependence (based on the history he gave of illicit drug use), a chronic pain disorder, and had experienced delirium on entering custody as a consequence of abrupt cessation of the many drugs he had been previously taking. The doctor referred to a childhood history of Attention Deficit Hyperactivity Disorder, but the source of this information is not clear from the report. 10. A second report from Dr Furst was requested by the offender as a means of explaining what the offender suggested in his letter of request was "an obsession with collecting or hoarding weapons […] without any thought of actually using them". 11. Based entirely upon the offender's assertions to him, Dr Furst noted that the offender appeared to have an "obsessive quality" to his "collection of weapons", sometimes staying up at night to "look at" the weapons. 12. He referred also to a report from the offender that he had been found to be cognitively impaired but, although Dr Furst had access to Justice Health records, he saw no testing suggestive of such a result, and it is accepted by senior counsel for the offender that there is no evidence of intellectual disability or other cognitive problems. 13. Of the offences, the doctor reported the offender's account of having been "outnumbered" by 8 to 10 men, and having impaired judgment at the time based on the offender's self-report of "not thinking properly". I do not accept either assertion on balance. 14. One positive feature reported by Dr Furst was that the offender was experiencing less back pain in custody than when he was at liberty, because he was exercising in custody, and taking fewer medications. 15. The offender was also psychiatrically assessed at the request of the Crown, by Dr Kerri Eagle. Dr Eagle saw the offender on 20 February 2019. Like Dr Furst, Dr Eagle saw no signs of "psychomotor agitation or retardation". The offender presented as logical and coherent and he spoke normally. He did not seem depressed. He claimed to have periodic experiences of hearing voices and sought pharmacological treatment from Dr Eagle to address his reported symptoms. 16. Dr Eagle took a history from the offender of a dysfunctional childhood, and truncated education. He reported being asked to leave school in year 8 or 9, after he was caught smoking cannabis. Consequently, the defendant stayed home, visited the skate park, rode his bike and smoked cannabis during his days. He later worked with his father as a brickies labourer for a short time until sustaining a back injury. He has not been employed since. 17. Perhaps inconsistently with his assertion that he had been expelled from school for cannabis use in year 8 or 9, presumably at age 13 or 14 years, the offender said to Dr Eagle that his cannabis habit began at age 16 or 17 years old. He reported recreational use of amphetamines or speed from the age of 17 years old as well as recreationally using ecstasy and LSD. He claimed to have completed the Magistrate Early Referral Into Treatment program at 17 or 18 years old with good short term effects. Unfortunately, methamphetamine use followed. The offender told Dr Eagle that he would like to engage in a rehabilitation program again to address his substance abuse. 18. Prior to the commission of the offences, the offender said he spent his time at home on his play station, or the internet, and admiring weapons, in particular, knives and guns. 19. The offender gave an account of the circumstances surrounding the shooting of Mr Coleman which was inconsistent in some regards to that given to Dr Furst, and contradicted by credible evidence led at trial. 20. He expressed remorse, stating "I've taken someone's life and I feel real bad". 21. He is stressed about the prospect of being sentenced, and, in December 2018, treating psychiatrist, Dr Reading, noted "deterioration in the offender's mental state due to that stress. He has been placed on an antidepressant medication, duloxetine, which has worked to improve his mood. He is also prescribed quetiapine daily and gabapentin for his back injury. 22. The offender also claimed to have experienced "generalised paranoia"; and has been housed in a mental health pod in custody. He told Dr Eagle that he had not had any disciplinary issues while in the mental health unit, despite admitting to substance use such as buprenorphine illicitly. He said he spends his time eating, and watching television. 23. Dr Eagle concluded that the offender has a severe substance use disorder that has been associated with his offending behaviour. She also noted that he experienced a "life threatening withdrawal syndrome" since being in custody. 24. Dr Eagle was of the opinion that the offender fulfils the criteria for an antisocial personality disorder, demonstrating a clear pattern of "disregard[ing] the rights of others since 15 years of age". According to Dr Eagle, the defendant has also demonstrated "impulsivity; deceitfulness; aggressiveness; reckless disregard for the safety of others and consistent [ir]responsibility". She assessed him as at higher risk of violent reoffending in the longer term than comparable prisoners. The Offender's Physical Health 1. Correspondence from Justice Health of 26 March 2019 establishes that the offender continues to suffer from a serious pain disprder. He is medicated in custody, with regular reviews of the medication regime necessary, due to issues with ongoing efficacy and safety. Weight gain has exacerbated his condition. 2. These proceedings have led to stress related depression, which has worsened recently. That condition is also treated in custody and the offender is regularly reviewed. 3. He has recently been reviewed by a specialist Drug and Alcohol doctor for management. Principles of deterrence 1. There is a need for the sentences imposed upon the offender to reflect the principles of both general and specific deterrence. Gun crimes, and particularly gun crimes that involve injury or death to others, must be deterred. The possession and use of guns by persons unfit to have them is a particular evil that bedevils society. Those that would, as the offender did, acquire a gun and use it unlawfully, must understand there will be a severe price to pay. 2. Since the evidence is that the offender retains a fascination with weapons, including guns, he too must be deterred from conduct of that sort in the future. Remorse 1. The only expressions of remorse from the offender are his assertions to Drs Furst and Eagle that he is sorry he took a life. Those unsworn and untested assertions are to be contrasted with the false version of events that the offender continues to give others about the circumstances in which Mr Coleman was shot. I do not accept that there is any credible evidence of remorse. Prospects for the Future 1. The offender submits that his prospects for the future are reasonable on the basis that there is no reason to conclude that he will not follow professional advice and undertake appropriate counselling and rehabilitative programmes, such as those suggested by Drs Furst and Eagle. 2. I am not able to draw that conclusion. The offender is a long-standing prescription and illegal drug user. His use of illegal drugs cannot be wholly attributed to his pain condition, since his use of drugs pre-dates the injury he suffered at 18 years of age. He appears to have what can only be regarded as a troubling obsession with guns and knives, particularly so when viewed through the prism of these offences. According to Dr Eagle the offender has had a history of problems with violence, and antisocial behaviours from a young age, problems with relationships, considerable periods of time unemployed, and he has an antisocial personality disorder. One previous attempt to assist him by placing him on a supervised bond directed to drug rehabilitation appears to have achieved little or nothing in the way of permanent change. His recent institutional offence suggests some level of continuing non-compliance with authority. 3. Dr Eagle also noted the offender's "persistent problems with insight into his offending behaviour", together with recent emotional instability and symptoms of a mental disorder, which treatment has not addressed. She suggested that his "pro-criminal and irresponsible lifestyle" has increased his risk of violent behaviour. His attitude and antisocial behaviour is a potential barrier to access to professional services and rehabilitation intervention. 4. Whilst the offender's family continue to be supportive, there is little else in his favour. His prospects to me seem to be, at best, very guarded, if not rather bleak. Conditions of Custody 1. The offender relied upon Ex S3 to submit that the conditions of his custody may not be as optimal as those of prisoners in the mainstream prison. The evidence does not, however support that conclusion. As a result of a request from the offender, he is managed as "a protection inmate". His status as such will last only as long as the offender wishes it to. He has not been placed on protection because of any threat known to, or verified by, Corrective Services. 2. As a protection inmate, the only restriction he faces is that he must be accompanied by an escort when moving along "the walkway". Otherwise, he enjoys the same access to services and facilities as other prisoners. 3. It is accepted that the offender has a chronic pain condition, and this will make his time in custody more onerous than for a prisoner without such a condition. That is a feature to which I have had regard when determining the length of the sentences to be imposed. Concurrency / Accumulation 1. The offender is to be sentenced for two discrete offences, which entail discrete criminality. He accepts that some level of accumulation of sentence is appropriate, although he submits that it should be minimal. 2. There is some commonality between the two offences, principally relating to the possession and use of the same illegal firearm, but the criminality of the offences is otherwise distinct, and the sentence imposed for one offence cannot fully comprehend the criminality of the other. There will be a degree of accumulation, although it will be moderated by the principle of totality. Special Circumstances 1. The offender has asked the Court to find that special circumstances exist pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) such that his non-parole period can be reduced. It is submitted that a longer than usual period of parole will be required to assist him to assimilate into society upon release. 2. I accept that the offender's chronic pain condition could result in a finding of special circumstances, as could his reported history of drug abuse. However, the sentence to be imposed upon him will be of such duration as to allow for a sufficient period of parole to assist him to reintegrate into society, without need for a longer period than that which arises from the ordinary ratio of sentence. Time in Custody 1. The offender has been in custody since 12 November 2016. Although the period of incarceration since that date is not solely referable to these offences, in that he has been remanded on other serious drugs and weapons offences, I propose to commence the sentence shortly to be imposed upon the offender from the date of his arrest. There will be issues of concurrency and accumulation with any sentences that may be imposed for those offences before the District Court, and an issue of totality, but that will be a matter for the court dealing with those offences. Type of Sentence 1. It will be clear from everything that I have said that it is not open to the Court to impose any sentence other than a custodial sentence, given the gravity of these crimes. orders 1. Joshua Magro is convicted of the offence of firing a firearm near a public place. He is convicted of the offence of the manslaughter of Ricardo Coleman. 2. An aggregate sentence will be imposed upon the offender pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. The offender is sentenced to imprisonment for 16 years, to date from 12 November 2016, expiring on 11 November 2032. There will be a non-parole period of 12 years, expiring on 11 November 2028. The earliest possible release date is 11 November 2028. 4. The sentences that would have been imposed had separate sentences been fixed are: 1. For count 1, a term of 4 years and 6 months imprisonment; 2. For count 2, a term of 15 years and 3 months imprisonment. 1. The offender is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him. ********* Amendments 03 April 2019 - Representation field Solicitors changed to read: Solicitor for Public Prosecutions (NSW) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2019