Mattar v R - [2012] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mattar v R [2012] NSWCCA 98
Hearing dates: 28 March 2012
Decision date: 17 May 2012
Before: Beazley JA at 1
Harrison J at 2
McCallum J at 28
Decision:
1. Dismiss the appeal against conviction.
2. Grant leave to appeal against sentence and allow the appeal.
3. Quash the sentence imposed upon the appellant by her Honour Syme DCJ on 27 August 2010.
4. In lieu thereof, sentence the appellant to a fixed term of imprisonment of 12 months commencing on 31 May 2011.
5. Grant liberty to apply if considered necessary or appropriate in respect of any alteration of or amendment to the commencing date of the sentence in the light of the these remarks.

Catchwords: CRIMINAL LAW - escape lawful custody - appeal against conviction - conviction following judge alone trial - existence of points raised by appellant that might be decided in favour of the appellant - no substantial miscarriage of justice - conviction appeal dismissed
CRIMINAL LAW - escape lawful custody - appeal against sentence - whether sentence manifestly excessive - failure by trial judge to consider special circumstances - evidence to support finding of special circumstances - error by trial judge - lesser sentence warranted in law - sentence appeal allowed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Ngyuen v R [2008] NSWCCA 163
R v Cotterill [2012] NSWSC 89
R v Loughnan [1981] VR 443
R v Novakovic [2004] NSWCCA 437
R v Rogers (1986) 86 A Crim R 542
Taiapa v R [2009] HCA 53; (2009) 240 CLR 95
Category: Principal judgment
Parties: Emil Rahib Mattar (Appellant)
Crown (Respondent)
Representation: B Brassil (Appellant)
S Dowling (Respondent)
Peter Murphy Criminal Law (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/36588
Decision under appeal

Before:

Syme DCJ

File Number(s):

2009/36588

Judgment

BEAZLEY JA: I agree with Harrison J.

HARRISON J: The appellant was convicted in a judge alone trial before Syme DCJ in the District Court of New South Wales at Sydney on 25 May 2010 of one count of escaping lawful custody contrary to s 310D(a) of the Crimes Act 1900. Her Honour sentenced the appellant to a term of 2 years imprisonment with a non-parole period of 18 months. The appellant appeals against his conviction and seeks leave to appeal against his sentence.

In my opinion the appeal against conviction should be dismissed but the appeal against sentence should be allowed. I have come to this view for the reasons that follow.

The conviction appeal

The appellant relies upon a number of grounds in support of the appeal against his conviction. He contends that her Honour made an error of law in her approach to the determination of proof of the appellant's guilt and made inconsistent findings of fact. Upon this basis it is contended that there was a miscarriage of justice and that the conviction cannot be supported.

The facts…

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.

Continue reading Mattar v R

Details

AGLC: Mattar v R [2012] NSWCCA 98
Case: [2012] NSWCCA 98
Decision Date: 17 May 2012

CaseChat Overview and Summary

The case of Mattar v R involved an appellant who had been convicted of escaping lawful custody and was appealing both the conviction and the sentence. The conviction was determined by a judge alone trial, and the appellant argued that certain points raised in the appeal might result in a decision in their favour. The sentence appeal focused on whether the sentence imposed was manifestly excessive and whether the trial judge failed to consider special circumstances that were evident from the trial.

The court had to decide whether there were sufficient grounds to overturn the conviction, considering the appellant's contentions and the possibility of a substantial miscarriage of justice. Additionally, the court needed to assess whether the sentence was excessive and whether the trial judge's failure to consider special circumstances warranted a lesser sentence. The court was tasked with evaluating the evidence and arguments presented by both parties to determine the appropriate outcome.

The court concluded that the points raised by the appellant did not establish a substantial miscarriage of justice, and thus, the conviction was upheld. However, the court found that the trial judge had erred in not considering special circumstances, which were supported by the evidence. As a result, the sentence was deemed to be manifestly excessive, and a lesser sentence was warranted in law. Consequently, the appeal against the conviction was dismissed, but the appeal against the sentence was allowed, and a new sentencing hearing was ordered.

The final orders of the court were that the conviction of the appellant was upheld, but the sentence was quashed, and a new sentencing hearing was directed. This decision highlights the importance of considering all relevant factors, including special circumstances, when imposing a sentence in criminal cases.

Orders