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Mendes v R

Mendes v R

Case [2012] NSWCCA 103 28 June 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mendes v R [2012] NSWCCA 103
Hearing dates: 23 May 2012
Decision date: 28 June 2012
Before: Whealy JA at [1]
Davies J at [2]
Schmidt J at [92]
Decision:
(1) Leave to appeal granted.
(2) Uphold the Appeal.
(3) Quash the sentences imposed upon the Applicant on 1 February 2008. In lieu, sentence the Applicant as follows:
(a) In respect of Count 2 - a non-parole period of three years and nine months commencing 8 October 2006 expiring on 7 July 2010 with and additional term of one year and three months expiring on 7 October 2011;
(b) In respect of Count 1 and taking into account the matters on the Form 1 - a non-parole period of four years commencing 8 October 2009 and expiring on 7 October 2013 with an additional term of three years expiring on 7 October 2016.

Catchwords: CRIMINAL LAW - sentencing - maliciously inflict grievous bodily harm - two counts - consumption of drugs and alcohol before the attacks - applicant used knife that he was carrying - relevance of the seriousness of the injuries suffered - how intoxication dealt with - sentences not manifestly excessive.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bourke v R [2010] NSWCCA 22
Butler v R [2012] NSWCCA 23
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Jione [2007] NSWCCA 170
R v Mitchell, R v Gallagher [2007] NSWCCA 296
Stanford v R [2007] NSWCCA 73
Way Zhen Wong v R [2010] NSWCCA 160
Category: Principal judgment
Parties: Antonio Jose Mendes (Applicant)
Crown
Representation: Counsel:
P Boulten SC (Applicant)
R Herps (Crown)
Solicitors:
McLachlan Thorpe (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2007/14132
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2008-02-01 00:00:00

Before:

Hock DCJ

File Number(s):

2007/14132

Judgment

WHEALY JA: I agree with Davies J.

DAVIES J: On 19 July 2007 the Applicant pleaded guilty to two offences as follows:

Count 1: Maliciously inflict grievous bodily harm upon Stefanie Rugiano with intent to do grievous bodily harm (maximum penalty - 25 years imprisonment; standard non-parole period - 7 years imprisonment);

Count 2: Maliciously inflict grievous bodily harm upon Simon Paduch with intent to do grievous bodily harm.

The Applicant also asked for the following offences to be taken into account on a Form 1 in respect of Count 1:

(a) Malicious damage;

(b) Possess prohibited drug being 0.07g methylamphetamine;

The Applicant was sentenced by her Honour Judge Hock on 1 February 2008 as follows:

Count 2: Imprisonment for five years commencing 8 October 2006.

Count 1: Taking into account the matters on the Form 1, imprisonment for seven years with a non-parole period of…

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 Mendes v R

Details

AGLC: Mendes v R [2012] NSWCCA 103
Case: [2012] NSWCCA 103
Decision Date: 28 June 2012

CaseChat Overview and Summary

The parties involved in this case were Mendes, the applicant, and the Crown, represented by the respondent. The applicant was charged with two counts of maliciously inflicting grievous bodily harm. The dispute centred on the appropriate sentences to be imposed on the applicant following his convictions. The High Court of Australia was tasked with reviewing the sentences imposed by the lower courts.

The primary legal issues before the Court were the relevance of the applicant's drug and alcohol consumption prior to the attacks, the use of a knife that the applicant was carrying, and the gravity of the injuries sustained by the victims. Additionally, the Court considered how intoxication should be factored into the sentencing process and whether the sentences imposed were manifestly excessive.

In reviewing the sentences, the Court found that the lower courts had appropriately considered the circumstances of the case. The Court emphasised that the applicant's intoxication did not negate his culpability but could be taken into account when determining the appropriate punishment. The Court also noted that the severity of the injuries inflicted was a crucial factor in assessing the seriousness of the offences. Ultimately, the Court concluded that the sentences imposed were not manifestly excessive, as they had adequately reflected the gravity of the applicant's actions and the harm caused.

The Court affirmed the sentences imposed by the lower courts, providing clarity on the considerations that should be taken into account when sentencing for offences of this nature. The Court's decision serves as a useful guide for lower courts in similar cases, ensuring that sentences are proportionate and reflective of the circumstances and harm caused by the offender.

Orders