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Merheb v R

Merheb v R

Case [2021] NSWCCA 224 17 September 2021

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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

PAYNE JA: I agree with Wright J.
PRICE J: I agree with Wright J.
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

The applicant pleaded guilty in the Local Court to…

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 Merheb v R

Details

AGLC: Merheb v R [2021] NSWCCA 224
Case: [2021] NSWCCA 224
Decision Date: 17 September 2021

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