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 28Decision: 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 allowedLegislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases 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 95Category: 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…
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- Mattar v R [2012] NSWCCA 98
- Case
- [2012] NSWCCA 98
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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