Menouhos v The Queen - [2019] NSWCCA 220

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Menouhos v R [2019] NSWCCA 220
Hearing dates: 9 August 2019
Date of orders: 19 September 2019
Decision date: 19 September 2019
Before: Payne JA at [1]
Garling J at [2]
Wright J at [69]
Decision:
Leave to appeal refused

Catchwords: CRIME — Appeals — Appeal against sentence — Manifest excess – Special circumstance and totality – Where applicant’s sentence was more severe than co-offenders – Where there exist substantial differences in the respective cases of the co-offenders
Legislation Cited: Crimes Act 1900
Cases Cited: Caristo v R [2011] NSWCCA 7
Jiang v R [2010] NSWCCA 277
Texts Cited: Nil
Category: Principal judgment
Parties: Christopher Hardin Menouhos (Applicant)
The Crown
Representation:
Counsel:
Self-Represented (Applicant)
H Roberts (Crown)
Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/103877; 2015/132158
Publication restriction: Not applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 April 2017

Before:

King SC DCJ

File Number(s):

2015/132158

Judgment

PAYNE JA: I agree with Garling J.
GARLING J: The applicant stood trial in October 2016 in respect of three counts upon which he was convicted.
Those counts were:

one count contrary to s 112(2) of the Crimes Act 1900 of break and enter and commit larceny in circumstances of aggravation,

one count contrary to s 33(1) of the Crimes Act of wounding with intent to cause grievous bodily harm; and

one count contrary to s 35(3) of the Crimes Act of reckless wounding in company.

After conviction, the applicant entered a plea of guilty to a further count contrary to s 112(2) of the Crimes Act of aggravated break enter and steal, which happened on an entirely different occasion. With respect to that offence, the applicant asked that one offence against s 547D of the Crimes Act, of carrying a cutting implement, be dealt with on a Form 1.
In respect of these four offences, the applicant was dealt with on sentence in the District Court on 20 April 2017.
The sentencing Judge determined that it would be appropriate to proceed by way of aggregate sentence. His Honour imposed an aggregate sentence of 10 years and 6 months imprisonment with a non-parole period of 7 years and 6 months with the term of imprisonment to commence on 8 October 2015.
The table below sets out the indicative sentences described by the sentencing Judge, and also the maximum penalty and standard non-parole periods provided for in the Crimes Act:

Offences

Max/SNPP

Plea

Indicative Sentence

s.112(2) agg. break & enter & steal

20 yrs/ 5 yrs

NG

6 yrs, NPP 4 yrs 6 mths

s.33(1)(a) wound with intent to cause GBH (machete)

25 yrs / 7 yrs

NG

8 yrs, NPP 6 yrs

s.35(3) reckless wounding in company (shotgun)

10 yrs / 4 yrs

NG

4 yrs, NPP 3 yrs

s.112(2) agg. break, enter & steal

Form 1 – s.547D – carry cutting implement

20 yrs / 5 yrs

6…

Offences	Max/SNPP	Plea	Indicative Sentence
s.112(2) agg. break & enter & steal	20 yrs/ 5 yrs	NG	6 yrs, NPP 4 yrs 6 mths
s.33(1)(a) wound with intent to cause GBH (machete)	25 yrs / 7 yrs	NG	8 yrs, NPP 6 yrs
s.35(3) reckless wounding in company (shotgun)	10 yrs / 4 yrs	NG	4 yrs, NPP 3 yrs
s.112(2) agg. break, enter & steal Form 1 – s.547D – carry cutting implement	20 yrs / 5 yrs 6…

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 Menouhos v The Queen

Details

AGLC: Menouhos v The Queen [2019] NSWCCA 220
Case: [2019] NSWCCA 220
Decision Date: 19 September 2019

CaseChat Overview and Summary

The case of Menouhos v The Queen involved an appeal by the applicant against his sentence, which he argued was manifestly excessive. The case was heard in the High Court of Australia. The applicant, who had been convicted of a serious crime, was seeking to overturn his sentence, arguing that it was disproportionate when compared to the sentences received by his co-offenders. The central issue before the court was whether the applicant's sentence was so disproportionate to those of his co-offenders as to be manifestly excessive. This required the court to consider the principles of special circumstances and totality in sentencing, as well as the differences in the respective cases of the co-offenders.

The court examined whether the applicant's sentence was more severe than those of his co-offenders and whether there were substantial differences in the respective cases that could justify the disparity. The applicant argued that the special circumstances in his case warranted a lesser sentence, while the Crown contended that the severity of the crime and the applicant's role warranted a harsher penalty. The court had to balance these considerations and determine whether the applicant's sentence was indeed manifestly excessive. The court also considered the principle of totality, which requires that the totality of a defendant's sentences for multiple offences be proportionate to the overall gravity of the offending.

After considering the arguments and the principles of sentencing, the court found that the applicant's sentence was not manifestly excessive. The court determined that there were substantial differences in the respective cases of the co-offenders that justified the disparity in sentences. The court also found that the principle of totality had been appropriately applied. Consequently, the appeal was dismissed. The applicant's sentence was upheld as proportionate to the gravity of his offending and the differences in the respective cases of the co-offenders.

Orders