Magro v R [2020] NSWCCA 25

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Magro v R [2020] NSWCCA 25 Hearing dates: 29 November 2019 Decision date: 26 February 2020 Before: Gleeson JA at [1] R A Hulme J at [83] Button J at [84] Decision: (1) Grant the applicant leave to appeal against sentence.

(2) Appeal allowed.

(3) The aggregate sentence imposed on the applicant in the Supreme Court on 29 March 2019 is quashed.

(4) In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 13 years and 4 months comprised of a non-parole period of 10 years commencing on 12 November 2016 and which will expire on 11 November 2026 with the balance of term expiring on 11 March 2030. The earliest possible release date is 11November 2026.

(5) The sentences that would have been imposed had separate sentences been fixed are:

(a) For count 1, a term of imprisonment for 4 years and 6 months (b) For count 2, a term of imprisonment for 12 years and 7 months.

(6) The applicant is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him. Catchwords: CRIME – appeals – appeal against aggregate sentence – manslaughter – use firearm near public place – where sentencing judge found objective seriousness of manslaughter offence "very grave" – whether sentencing judge erred in fact finding on excessive self-defence

CRIME – appeals – appeal against sentence – jury verdict of not guilty of murder but guilty of manslaughter – utilitarian discount – where early offered plea of guilty of manslaughter on grounds of excessive self-defence rejected by prosecutor – where applicant's defence case at trial inconsistent with sentencing judge's findings as to circumstances of the offending – whether House v The King error in assessment of 10% discount – applicant re-sentenced – 20 % discount allowed for early guilty plea Legislation Cited: Crimes Act 1900 (NSW), ss 18, 24, 93G, 421, 439 Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 25E, Div 1A of Pt 3, 53A(2) Criminal Appeal Act 1912 (NSW), s 6(3) Criminal Procedure Act 1986 (NSW), s 143 Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), Sch 2, Pt 30 Cases Cited: Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 Baines v R [2016] NSWCCA 132 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 651; [2014] HCA 37 Merrick v R [2017] NSWCCA 264 Mulato v R [2006] NSWCCA 282 O'Neil-Shaw v The Queen [2010] NSWCCA 42 R v AB [2011] NSWCA 229 R v Ahmad [2005] NSWSC 991 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 R v Cicekdag [2004] NSWCCA 357; (2004) A Crim R 299 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R R v Hamzy [2016] NSWSC 1512 R v Johnson [2003] NSWCCA 129 R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 R v Magro [2019] NSWSC 343 R v Oinonen [1999] NSWCCA 310 R v O'Neill [1979] 2 NSWLR 582 R v Pennisi [2001] NSWCCA 326 R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Trevenna [2004] NSWCCA 43; [2004] 149 A Crim R 505 R v Wood [2014] NSWCCA 184 Category: Principal judgment Parties: Joshua Magro (Appellant) Crown (Respondent) Representation: Counsel: J Stratton SC / L Gallagher (Appellant) M Cinque SC (Crown)