Merheb v R

Case [2021] NSWCCA 224


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Merheb v R [2021] NSWCCA 224
Hearing dates: 23 June 2021
Date of orders: 17 September 2021
Decision date: 17 September 2021
Before: Payne JA at [1];
Price J at [2];
Wright J at [3]
Decision:

1. The applicant is refused leave to add proposed ground 3 as a ground of appeal.

2. The applicant has leave to appeal on grounds 1 and 2.

3. The appeal is dismissed.

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — whether failure to reflect special circumstances having regard to overall time to be spend in custody — whether manifest excess — application of comparable cases and sentencing statistics — no error established

CRIME — appeals — appeal against sentence — application for leave to add ground of appeal raising error by sentencing for an offence to which the applicant did not plead guilty— where relevant provision merely misidentified on one occasion and no other error — leave to add ground of appeal refused

Legislation Cited:

Crimes Act 1900 (NSW), ss 112, 113, 117, 192E

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A

Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:

A103 v R [2015] NSWCCA 210

AM v R [2020] NSWCCA 101

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

CM v R [2020] NSWCCA 136

Donn v R [2010] NSWCCA 20

Dudgeon v R [2014] NSWCCA 301

Flick v R [2012] NSWCCA 170

GP v R [2017] NSWCCA 200

Jackson v R [2021] NSWCCA 15

JM v R [2014] NSWCCA 297; 246 A Crim R 528

Langbein v R [2013] NSWCCA 88

Lonsdale v R [2020] NSWCCA 267

Moodie v R [2020] NSWCCA 160

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Andrews [2005] NSWCCA 199

R v Byrne [2005] NSWCCA 141

R v Merheb [2020] NSWDC 385

R v Mougin [2005] NSWCCA 146

Rizk v R [2020] NSWCCA 291

Strickland v R; O’Connor v R [2011] NSWCCA 166

Vandeventer v R [2013] NSWCCA 33

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:Principal judgment
Parties: Matthew Thomas Merheb (Applicant)
Regina (Respondent)
Representation:

Counsel:
R Rajalingam (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/00350968
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Citation:

[2020] NSWDC 385

Date of Decision:
24 June 2020
Before:
Colefax SC DCJ
File Number(s):
2019/00350968

Judgment

  1. PAYNE JA: I agree with Wright J.

  2. PRICE J: I agree with Wright J.

  3. WRIGHT J: The applicant, Mr Matthew Merheb, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on him by Colefax SC DCJ in the District Court at Campbelltown on 24 June 2020.

Background

  1. The applicant pleaded guilty in the Local Court to…

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Merheb v R [2021] NSWCCA 224
Case
[2021] NSWCCA 224
Decision Date

CaseChat Overview and Summary

In the matter of Merheb versus the Crown, the appellant contested the severity of a sentence imposed by the Court of Appeal. The Court of Appeal itself was assessing whether the sentence was excessive and whether the appellant's special circumstances had been adequately considered in the sentencing process. The appellant argued that the sentence did not sufficiently reflect the total time to be spent in custody, which was claimed to be a manifest excess. The appeal was premised on the contention that the sentence imposed was disproportionately harsh in light of comparable cases and relevant sentencing statistics.

The legal issues before the Court of Appeal encompassed whether the sentence imposed was manifestly excessive, and if so, whether the Court should grant leave to appeal on that basis. Additionally, the Court had to consider whether leave should be granted to add a new ground of appeal regarding an error in the sentencing process for an offence to which the appellant did not plead guilty. The appellant's application for leave to add this ground of appeal was based on an alleged misidentification of a relevant provision during sentencing.

The Court of Appeal determined that there was no manifest excess in the sentence imposed, as it had properly considered the appellant's special circumstances and aligned with comparable cases and sentencing statistics. Furthermore, the Court found that the misidentification of a relevant provision did not constitute an error that warranted leave to add a new ground of appeal. Consequently, the application for leave to appeal and to add a new ground of appeal was dismissed, as no established error was found.

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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