Court of Criminal Appeal
New South Wales
Case Title: Mencarious v R Medium Neutral Citation: [2014] NSWCCA 104 Hearing Date(s): 27 May 2014 Decision Date: 16 June 2014 Before: Simpson J at [1];
Adams J at [2];
McCallum J at [24]Decision: Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal against sentence - referral under s 78 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - no lesser sentence warranted at law Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 78
Criminal Appeal Act 1912 (NSW), s 78
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23 and 24Cases Cited: Muldrock v R (2011) 244 CLR 120
R v Mencarious [2006] NSWSC 719
Mencarious v R [2008] NSWCCA 237
R v Way (2004) 60 NSWLR 168Category: Principal judgment Parties: Ashraf Mencarious (Appellant)
Regina (Respondent)Representation - Counsel: Counsel:
D Barrow (Appellant)
J A Girdham SC (Respondent)- Solicitors: Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)File Number(s): 2005/2951 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Grove J - Date of Decision: 17 July 2006 - Court File Number(s): SC 2005/1090
JUDGMENT
SIMPSON J: I agree with Adams J.
ADAMS J:
Introduction
On 21 March 2006, the appellant, Ashraf Mencarious, was convicted following a trial by jury of the murder of his wife Nevine Youseff. He was sentenced on 7 July 2006 to imprisonment comprising a non-parole period of 20 years commencing 15 December 2004, with a balance of term of 6 years and 8 months to expire on 14 August 2031. He appealed from his conviction and sentence to the Court of Criminal Appeal. On 14 October 2008 the appeals were dismissed. The appellant, in late 2013, applied under s 78 of Crimes (Appeal and Review) Act 2001 (NSW) for an enquiry into his sentence, submitting that the judgments both of the learned primary judge and in the Court of Criminal Appeal proceeded upon a basis which was disapproved by the High Court in Muldrock v R (2011) 244 CLR 120. Although the sentences at first instance and the approach of the Court of Criminal Appeal accorded with the law as it was then understood, the appellant submitted, his sentence was imposed and subsequent appeal dismissed by applying erroneous principle.
The crucial passage in the judgment at first instance (R v Mencarious [2006] NSWSC 719) was -
"[30] Parliament has decreed that an offence of murder which is in the middle of the range of objective seriousness for such offence should have imposed a standard non parole period of imprisonment for twenty years. It is therefore a matter to which I must turn to determine whether your offence is in the middle of that range.
...
[35] It is not inevitable that upon such a finding the standard non parole period must be applied if there are reasons to depart from it, and I turn to consider subjective matters raised on your behalf. In…
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- AGLC
- Mencarious v The Queen [2014] NSWCCA 104
- Case
- [2014] NSWCCA 104
- Decision Date
CaseChat Overview and Summary
The case of Mencarious v The Queen involved the appellant, who had been convicted of murder, appealing against his sentence. The nature of the dispute centred around whether the sentence imposed by the trial judge was appropriate given the circumstances of the crime and the appellant's actions. The High Court of Australia was tasked with determining whether the sentence should be altered, and if so, what the appropriate sentence should be.
The legal issues before the court were whether there had been an error of law in the sentencing proceedings and, if so, whether the appellant should be re-sentenced and what the appropriate sentence would be. The Crown conceded that there had been an error of law in the sentencing process, which was binding on the trial judge at the time. The court had to determine if a lesser sentence was warranted at law and if so, what that sentence should be.
The court found that the appellant's surrender to the police shortly after the crime was not voluntary assistance to the authorities but rather an attempt to mitigate his punishment. The court emphasised the gravity of the crime, which was driven by the appellant's view of his wife's subordinate status. The court concluded that the sentence imposed by the trial judge was appropriate and that there were no special circumstances that would warrant a variation of the sentence. Therefore, the court dismissed the appeal and upheld the original sentence of imprisonment comprising a non-parole period of 20 years with a balance of term of 6 years and 8 months.
The legal issues before the court were whether there had been an error of law in the sentencing proceedings and, if so, whether the appellant should be re-sentenced and what the appropriate sentence would be. The Crown conceded that there had been an error of law in the sentencing process, which was binding on the trial judge at the time. The court had to determine if a lesser sentence was warranted at law and if so, what that sentence should be.
The court found that the appellant's surrender to the police shortly after the crime was not voluntary assistance to the authorities but rather an attempt to mitigate his punishment. The court emphasised the gravity of the crime, which was driven by the appellant's view of his wife's subordinate status. The court concluded that the sentence imposed by the trial judge was appropriate and that there were no special circumstances that would warrant a variation of the sentence. Therefore, the court dismissed the appeal and upheld the original sentence of imprisonment comprising a non-parole period of 20 years with a balance of term of 6 years and 8 months.
Orders
Orders of the court
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Background
Background to the litigation
It is, of course, for this Court to determine itself whether there was an error of law, although the parties are agreed that there was. It is unnecessary, however, to engage in any analysis. In my view, the concession of the Crown that the sentence proceedings miscarried, although approached in the way that, at the time, was binding on the trial judge, is appropriate. Error of law having been established, it is necessary for this Court to consider first whether the appellant should be re-sentenced and, if so, determine the appropriate sentence. The facts These were not in dispute, although certain inferences drawn by the primary judge were submitted to be unjustified by Mr Barrow, counsel for the appellant. The appellant's first marriage having failed sometime before, he and the deceased entered into an arranged marriage. They were married in January 2002 in Egypt, the appellant returning to Australia in February 2002, but the deceased's arrival was delayed to August 2003 due to immigration requirements. The marriage was not a happy one. They had a son in July 2004. The deceased had come to reside at a women's refuge after having been rescued by a police officer who found her shaking, crying and very distressed by the side of a remote rural roadway where the appellant had abandoned her. The appellant told police that the deceased "needs to understand her place here and respect me. I am on my way home and I don't want her to come back". At this time their child was only a few months of age. Overall, the learned primary judge concluded that the appellant did not regard his marriage as a partnership but that his wife was a subordinate who was subject to his dictates. Although an apprehended violence order had been taken out, the appellant and the deceased continued to have contact and they met from time to time, although this was also in breach of the rules of the refuge. The appellant killed the deceased at a hotel where they had arranged to spend the night together. The appellant gave evidence in the sentencing proceedings, amongst other things, concerning the events of the night in question. He claimed that the second marriage failed mainly because the deceased entered it to facilitate the migration of her family to Australia. The judge rejected the evidence of both the appellant and his sister about this matter, commenting about the latter that she had a tendency to unacceptable overstatement, exemplified by her statement that the appellant had been "always... a wonderful family man and an amazing father [who] absolutely loves, adores and cherishes all three of his children as they do him". His Honour said he gained the impression that the appellant's answers were contrived and he was not candid. In particular, he rejected as incredible that, despite the deceased's agreement to spend the night with him, he thought she was not seeking genuine reconciliation. On the appellant's account, when he and the deceased arrived in the hotel room they had some drinks, ordered and consumed pizza, watched some television and then had intimate relations. Reconciliation was discussed but, when the discussion turned to the possibility of the appellant sponsoring the deceased's brother to Australia (a subject that had been the cause of substantial friction in the past), the appellant claimed he realized her primary concern was the welfare of her brother and her apparent affection for the appellant was not genuine. His Honour dismissed this claim as incredible. Whatever triggered his ("savage") attack on the deceased, the appellant struck her with considerable force multiple times to the head with a bottle. The appellant said that he did this to force her to release a bite hold on his finger. The judge accepted that, at some stage the deceased did bite his finger, but this was trivial given that it was treated with antiseptic and a bandaid. The primary judge accepted that the appellant drank alcohol during the evening. (There was no alcohol detected in the blood of the deceased.) Of critical importance was the fact that she died from asphyxiation following the beating although the precise mode by which this was inflicted by the appellant was never explained.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
One other matter requires some short discussion. It will be recalled that the appellant turned himself into police a few hours after committing the murder. This is capable of being regarded as assistance to the authorities within the meaning of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, given the substantial public interest in encouraging offenders to surrender themselves to police, gives rise to the need to consider whether any downward adjustment should be made to the sentence otherwise appropriate. However, in this case, it is clear that the appellant understood that his identification as the deceased's assailant was inevitable and he approached police in order to make such excuses as he was able in the hope that he might escape punishment, if not for the violent assaults, at least for murder. Accordingly, I would not in this case make an allowance for his surrender to the police. Conclusion This was an extremely serious crime in which the requirements of general deterrence are of particular point since a significant part of the appellant's motivation was his attitude to the status of his wife as opposed to his own, a view which the Court sees all too frequently in cases of so called domestic violence. There are no special circumstances justifying a variation of the ratio provided by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Since, in my view, a sentence of imprisonment comprising a non-parole period of 20 years with a balance of term of 6 years and 8 months is the appropriate sentence, it follows that I do not accept that a lesser sentence is warranted in law and accordingly I would dismiss the appeal. McCALLUM J: I agree with Adams J.**********
Ratio Decidendi
Legal Principle Established
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