Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Merhi v R [2019] NSWCCA 322 Hearing dates: 1 November 2019 Date of orders: 24 December 2019 Decision date: 24 December 2019 Before: Macfarlan JA at [1]
Harrison J at [2]
Cavanagh J at [3]Decision: (1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed by McClintock SC DCJ on 12 April 2019 is quashed.
(4) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of four years and six months with a non-parole period of two years and six months. The sentence is back-dated to 12 March 2019 and will expire on 11 September 2023. The non-parole period of two years and six months expires on 11 September 2021. The applicant is eligible to be released on parole on 12 September 2021.Catchwords: CRIME — appeals — application for leave to appeal against sentence — offences of bribery of a public official, aid and abet importation of tobacco products knowing of an intent to defraud revenue and dealing in proceeds of crime greater than $100,000 — where applicant formerly employed as a Customs Officer — whether sentencing judge erred by considering fact of applicant's former employment as a Customs Officer as a matter seriously aggravating the offending — whether offending constituted an abuse of trust or authority — whether sentencing judge erroneously dismissed applicant's prior good character as a relevant mitigating factor — whether sentence was manifestly excessive — appeal allowed — resentence Legislation Cited: Crimes Act 1914 (Cth), s 16A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Code Act 1995 (Cth) ss 11.2, 141.1, 400.4
Customs Act 1901 (Cth), s 233BABADCases Cited: Conte v R [2018] NSWCCA 209
Hughes v R [2018] NSWCCA 2
JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kentwell v The Queen (2014) 252 CLR 601; [2014] CLR 601
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Kennedy [2000] NSWCCA 527
R v Lamella [2014] NSWCCA 122
R v Obeid (No 12) [2016] NSWSC 1815
R v Standen [2011] NSWSC 1422
Suleman v R [2009] NSWCCA 70
Turnbull v R [2019] NSWCCA 97
Windle v R [2011] NSWCCA 277
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64Category: Principal judgment Parties: Johayna Merhi (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
T F Woods (Applicant)
P McEniery (Crown)
Johnston Vaughan Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2017/241275 Publication restriction: None Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- 12 April 2019
- Before:
- McClintock SC DCJ
- File Number(s):
- 2017/241275
Judgment
-
MACFARLAN JA: I agree with Cavanagh J.
-
HARRISON J: I agree with Cavanagh J.
-
CAVANAGH J:…
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- AGLC
- Merhi v R [2019] NSWCCA 322
- Case
- [2019] NSWCCA 322
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge erred in considering Merhi's former employment as a Customs Officer as a matter seriously aggravating the offending, whether the offending constituted an abuse of trust or authority, whether the sentencing judge erroneously dismissed Merhi's prior good character as a relevant mitigating factor, and whether the sentence was manifestly excessive. The court needed to determine if the sentence imposed was appropriate in the circumstances and whether there were any errors in the sentencing process that warranted a reduction in the sentence.
The court found that the sentencing judge erred in considering Merhi's former employment as a Customs Officer as a matter seriously aggravating the offending. The court held that Merhi's offending did not constitute an abuse of trust or authority and that the sentencing judge should have considered his prior good character as a relevant mitigating factor. The court also found that the sentence was manifestly excessive and granted leave to appeal against the sentence. The court ordered a resentencing hearing to be conducted with due regard to the errors identified.
The court ordered that the applicant be resentenced, taking into account the errors identified by the court. The court noted that the resentencing should be conducted with due regard to the principles of proportionality and individualisation, and that the sentencing judge should consider all relevant mitigating and aggravating factors, including the applicant's prior good character. The court did not specify the exact sentence that should be imposed but left it to the sentencing judge to determine an appropriate sentence after the resentencing hearing.
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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