R v Russell [2019] NSWSC 459

Supreme Court New South Wales

Medium Neutral Citation: R v Russell [2019] NSWSC 459 Hearing dates: 14-17 August, 20-23 August, 27-31 August, 3 September, 5-7 September, 10-14 September, 17 and 18 September 20185 April 2019 Date of orders: 26 April 2019 Decision date: 26 April 2019 Jurisdiction: Common Law Before: Hidden AJ Decision: Aggregate sentence of 14 years, NPP 10 ½ years from 22 March 2016 Catchwords: CRIMINAL LAW – sentence – manslaughter by excessive self-defence, defence of others – late plea of guilty – offender found guilty at trial of two related offences of discharge firearm with intent to cause GBH – incident involving discharge of pistol in a public street Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Category: Sentence Parties: Regina (Crown) Matthew Glen Russell (Accused) Representation: Counsel: Mr G Tabuteau (Crown) Mr A Webb (Accused)

Solicitors: Office of the Director of Public Prosecutions (Crown) Andrew Scali Solicitors (Accused) File Number(s): 2016/89392 Publication restriction: None

Judgment 1. HIS HONOUR: Between August and September 2018, the offender, Matthew Glen Russell, stood trial before me on an indictment charging the murder of Qusay Al Mahanawi (count 1) and charges of discharging a pistol with intent to cause grievous bodily harm to Latu Vakauta and Tyson Parker (counts 2 and 3 respectively). Both offences carry a maximum sentence of imprisonment for 25 years, and a standard non-parole period of 9 years is specified for the offence of discharging a pistol with intent. In the trial, Mr Vakauta and Mr Parker were referred to by their first names, Latu and Tyson, and I shall do so in these reasons. 2. The charges arose from a confrontation between the offender and Latu and Tyson in Matthew Avenue, Heckenberg on 18 March 2016. It was the Crown case that during the incident the offender fired a pistol at both those men. The shots missed both of them but, by tragic misadventure, a shot fired at Tyson fatally wounded Mr Al Mahanawi, who was in the vicinity but was unknown to the three men and was not involved at all in the confrontation. 3. The murder count was left to the jury on the basis that the offender caused the death of Mr Al Mahanawi by a shot fired at another person, Tyson, with the requisite intent. After a lengthy retirement the jury found the offender guilty of each of the counts of discharging a pistol with intent to cause grievous bodily harm, but could not agree upon a verdict on the murder count. That count was stood over for retrial. 4. On 7 December 2018, the offender was rearraigned on the murder count and he pleaded not guilty to murder but guilty of manslaughter. The Crown accepted that plea in full discharge of the count, it being agreed between the parties that it was entered on the basis of excessive self-defence and defence of others. 5. The offender now stands for sentence for the manslaughter and the two counts of discharging a pistol with intent.