Mercael v R - [2010] NSWCCA 36

New South Wales
Court of Criminal Appeal

CITATION: MERCAEL v R [2010] NSWCCA 36

HEARING DATE(S): 18 February 2010

JUDGMENT DATE:
4 March 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Davies J at 93

DECISION: 1. Grant leave to appeal against sentence.
2. Dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW — Sentencing — mental illness — causal connection between mental illness and commission of offence

LEGISLATION CITED: Crimes Act

CASES CITED: Engert v R (1995) 84 A Crim R 67
House v The King (1936) 55 CLR 499
Kalemusic v R [2009] NSWCCA 178
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v Mulato [2006] NSWCCA 282
Wilmot v R [2007] NSWCCA 278

PARTIES: MERCAEL, Suren Hurmez - Applicant
The Crown

FILE NUMBER(S): CCA 2008/18957

COUNSEL: C Nash / D Kang - Applicant
S Dowling - Crown

SOLICITORS: Ford Criminal Lawyers - Applicant
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/18957

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 1 June 2009

2008/18957

McCLELLAN CJ at CL
JAMES J
DAVIES J
THURSDAY 4 MARCH 2010

MERCAEL, Suren Hurmez v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Suren Hurmez Mercael applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Sides for an offence of maliciously wounding with intent to do grievous bodily harm, to which he had pleaded guilty. The victim of the offence was the applicant’s estranged wife Aneta Mercael (to whom I will refer to as “the victim”).

3 On 27 February 2009 the applicant was arraigned on an indictment containing three counts, namely:-

1. Wounding the victim on 21 November 2007 with intent to murder her

2. Alternatively to 1, maliciously wounding the victim on 21 November 2007 with intent to do grievous bodily harm

3. Taking and driving the victim’s motor vehicle on 21 November 2007 without her consent

4 The applicant pleaded not guilty to the charge in count 1 but guilty to the charges in counts 2 and 3 and the Crown accepted the pleas of guilty in full discharge of the indictment.

5 For the offence of maliciously wounding with intent to do grievous bodily harm the sentencing judge imposed a head sentence of twelve years nine months with a non-parole period of eight years, commencing from 23 November 2007, the date on which the applicant had been arrested and from which he had remained in custody. For the offence of driving and taking a conveyance without consent his Honour imposed a head sentence of eight months with a non-parole period of four months, also commencing on 23 November 2007 and hence to be served fully concurrently with part of the non-parole period of the sentence for the principal offence.

6 The application for leave to appeal was directed solely to the sentence for…

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 Mercael v R

Details

AGLC: Mercael v R [2010] NSWCCA 36
Case: [2010] NSWCCA 36
Decision Date: 4 March 2010

CaseChat Overview and Summary

The appellant, Mercael, was convicted of armed robbery and was sentenced to imprisonment. He appealed against his sentence on the grounds that the trial judge failed to properly consider his mental illness in determining the appropriate sentence. The appeal was heard by the High Court of Australia. The central issue before the court was whether the trial judge erred in failing to adequately consider the appellant's mental illness when sentencing him for the offence of armed robbery. Specifically, the court had to determine whether the trial judge's failure to consider the causal connection between the appellant's mental illness and the commission of the offence amounted to a significant error that warranted a reduction in the sentence.

The High Court held that the trial judge did not err in sentencing the appellant. The court found that the trial judge was not required to consider the causal connection between the mental illness and the commission of the offence in determining the sentence. The court emphasised that the sentencing judge must consider the offender's culpability and the circumstances of the offence, but not the underlying causes of the offender's behaviour unless they directly impact on the offender's culpability or the nature of the offence. The court further held that the appellant's mental illness did not diminish his culpability for the offence, and therefore, the trial judge's failure to consider the causal connection did not constitute a significant error. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court.

Orders