Merheb v The King - [2024] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Merheb v R [2024] NSWCCA 145
Hearing dates: 24 July 2024
Date of orders: 9 August 2024
Decision date: 09 August 2024
Before: Mitchelmore JA at [1]
Davies J at [2]
Ierace J at [63]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – misapplication of principle – dealing with property reasonably suspected of being proceeds of crime -whether sentencing judge breached De Simoni principle – where absolute liability applied to mental element of the offence - whether sentencing judge drew inference about the mental element to sentence for a more serious offence – sentencing remarks do not disclose any such inference
CRIME – appeals – appeal against sentence – denial of procedural fairness – offender with gambling addiction - whether sentencing judge introduced into his deliberations evidence that was not before him – whether applicant’s attendance at a video game convention involved a form of gambling – whether applicant was provided the opportunity to make submissions on the matter – where applicant did not show that he had addressed his gambling addiction generally – where applicant’s continued gambling did not affect the assessment of the applicant’s prospect of reoffending – no denial of procedural fairness

Legislation Cited:
Criminal Code Act 1995 (Cth) ss 5.5, 134.2, 371.1, 400.4, 400.9
Evidence Act 1995 (NSW) s 144

Cases Cited:
House v The King (1936) 55 CLR 499; 1936 HCA 40
Smith v R [2024] NSWCCA 59; (2024) 93 MVR 345
The Queen v De Simoni (1981) 147 CLR 383; [1981]
HCA 31
Weir v R [2011] NSWCCA 123

Texts Cited:
Nil

Category: Principal judgment
Parties: Salim Merheb (Applicant)
The King (Respondent)
Representation:
Counsel:
B Barrack (Applicant)
D K Jordan (Respondent)
Solicitors:
Sadek Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/129905
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

11 October 2023

Before:

Hanley SC DCJ

File Number(s):

2022/129905

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Salim Merheb, pleaded guilty in the Local Court to one count of obtaining a financial advantage by deception (count 1), one count of dealing with property reasonably suspected of being proceeds of crime (count 2), and one count of dealing in identification information (count 3) contrary to ss 134.2(1), 400.9(1) and 372.1(1) of the Criminal Code (Cth), respectively. The applicant was sentenced to imprisonment for 3 years 6 months with a non-parole period of 1 year 3 months expiring 9 October 2025.

Count 1 involved the applicant purporting to be a number of real people, and in each case alleging an entitlement under the Australian Government Disaster Recovery Payment as a result of the New South Wales floods in 2021 or as a result of programs established to benefit persons affected by the COVID-19 pandemic. Between 29…

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 The King

Details

AGLC: Merheb v The King [2024] NSWCCA 145
Case: [2024] NSWCCA 145
Decision Date: 09 August 2024

CaseChat Overview and Summary

In the case of Merheb v The King, the appellant challenged his sentence for dealing with property reasonably suspected of being proceeds of crime. The appeal was heard in the High Court of Australia. The appellant argued that the sentencing judge misapplied legal principles by considering his mental state and gambling addiction to impose a harsher sentence. Additionally, the appellant contended that the judge breached procedural fairness by introducing new evidence and failing to provide an opportunity to comment on this evidence.

The court was required to determine whether the sentencing judge correctly applied the legal principles governing absolute liability and whether the judge had breached procedural fairness by introducing new evidence. Specifically, the court examined whether the sentencing remarks indicated that the judge drew an inference about the appellant's mental state, and whether the appellant was given a fair chance to respond to new evidence about his attendance at a video game convention.

The High Court found that the sentencing judge did not misapply the principles of absolute liability, as there was no indication in the sentencing remarks that the judge drew an inference about the appellant's mental state to impose a more severe sentence. The court also held that there was no breach of procedural fairness because the appellant was not prejudiced by the judge's consideration of the new evidence, and the appellant did not demonstrate that he had addressed his gambling addiction. The continued gambling did not affect the assessment of the appellant's likelihood of reoffending.

The High Court dismissed the appeal, confirming the original sentence imposed on the appellant.

Orders