Mariam v The Queen; R v Mariam - [2013] NSWCCA 338

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mariam v R; R v Mariam [2013] NSWCCA 338
Hearing dates: 2 August 2013
Decision date: 20 December 2013
Before: Simpson J at [1]; Price J at [67]; R A Hulme J at [68]
Decision:
Mariam v R
(i) Leave to appeal against sentence granted;
(ii) Appeal dismissed.
R v Mariam
(i) Director's appeal against sentence allowed;
(ii) Each sentence set aside and in lieu thereof Mahmoud Mariam sentenced as follows:
 with respect to the conviction for affray, Mahmoud Mariam is sentenced to imprisonment for a fixed term of 4 years, commencing on 24 April 2010, and expiring on 23 April 2014;
 with respect to the conviction for manslaughter, Mahmoud Mariam is sentenced to imprisonment comprising a non-parole period of 8 years 9 months commencing on 24 April 2011 with a balance of the term of the sentence of 3 years 3 months expiring on 23 April 2023. The earliest date the offender will be eligible for release on parole will be on the expiration of the non-parole period on 23 January 2020.

Catchwords: CRIMINAL LAW - appeal - offender on trial for murder and affray - acquittal on murder charge - guilty of alternative count of manslaughter - application for leave to appeal against sentence - severity - whether sentencing judge erred in determining facts - no error found - leave to appeal granted - appeal dismissed
CRIMINAL LAW - Crown appeal - s 5D Criminal Appeal Act 1912 - whether sentencing judge erred by failing to accumulate the sentences sufficiently - accumulation failed adequately to reflect criminality - whether sentencing judge erred by finding specific deterrence had limited significance - error found - whether sentences manifestly inadequate - error found - appeal allowed - each sentence set aside - offender re-sentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Collier v R [2012] NSWCCA 213
House v The King [1936] HCA 40; 55 CLR 499
R v Edwards [1996] 90 A Crim R 510
R v Previtera [1997] 94 A Crim R 76
TDP v R; R v TDP [2013] NSWCCA 303
The Queen v Pemble [1971] HCA 20; 124 CLR 107
Category: Principal judgment
Parties: Mahmoud Mariam (Applicant/Respondent)
Regina (Respondent/Applicant)
Representation: Counsel:
S Odgers SC (Applicant/Respondent)
J Pickering SC (Respondent/Applicant)
Solicitors:
Matouk Joyner Lawyers (Applicant/Respondent)
S Kavanagh - Solicitor for Public Prosecutions (Respondent/Applicant)

File Number(s): 2010/97926
Decision under appeal

Citation:

R v Mariam [2012] NSWSC 1023

Date of Decision:

2012-08-30 00:00:00

Before:

Latham J

File Number(s):

2010/97926

Judgment

SIMPSON J: On 28 February 2012 Mahmoud Mariam was arraigned, jointly with two others (a juvenile known as HEK, and Adel Elkobaili), in the Supreme Court on an indictment that charged one count of murder, and one count of affray. HEK was also charged with one count of arson. All accused entered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCCA 338
Decision Date: 20 December 2013

CaseChat Overview and Summary

The case of Mariam v The Queen; R v Mariam involved an offender who was on trial for charges of murder and affray. The offender was acquitted of the murder charge but found guilty of the alternative count of manslaughter. Following the verdict, the offender applied for leave to appeal against the sentence imposed. The appeal centred on the severity of the sentence, specifically whether the sentencing judge erred in determining the facts relevant to the sentencing. The offender argued that the sentence was excessive and that the sentencing judge had made errors in the accumulation of the sentences and in assessing the significance of specific deterrence.

The court was required to determine whether the sentencing judge had erred in their determination of the facts, the accumulation of the sentences, and the assessment of specific deterrence. The court also had to decide whether the sentences were manifestly inadequate in light of the offender's criminal conduct. After careful consideration of the arguments presented, the court found no error in the sentencing judge's determination of the facts and the accumulation of the sentences. However, the court identified an error in the sentencing judge's finding that specific deterrence had limited significance. The court also concluded that the sentences were manifestly inadequate, as they failed to adequately reflect the offender's criminality.

In conclusion, the court granted leave to appeal and dismissed the appeal in relation to the sentence for manslaughter. However, the Crown's appeal was allowed. The sentences for both the manslaughter and the affray charges were set aside, and the offender was re-sentenced. The court found that the original sentences did not sufficiently reflect the offender's criminality and the need for specific deterrence, and therefore, a re-sentencing was necessary to ensure the sentences were appropriate in light of the offender's criminal conduct.

Orders