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Merhi v R

Merhi v R

Case [2019] NSWCCA 322 24 December 2019

Aggravated & Exemplary Damages

Criminal Law

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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 233BABAD
Cases 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 64
Category: Principal judgment
Parties: Johayna Merhi (Applicant)
Crown (Respondent)
Representation:
Counsel:
T F Woods (Applicant)
P McEniery (Crown)
Solicitors:
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:…

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 Merhi v R

Details

AGLC: Merhi v R [2019] NSWCCA 322
Case: [2019] NSWCCA 322
Decision Date: 24 December 2019

CaseChat Overview and Summary

The applicant, Merhi, appealed against his sentence following his conviction for bribery of a public official, aiding and abetting the importation of tobacco products with intent to defraud revenue, and dealing in proceeds of crime exceeding $100,000. Merhi, who was formerly employed as a Customs Officer, argued that the sentencing judge erred by considering his former employment as a matter seriously aggravating the offending. He contended that his offending did not constitute an abuse of trust or authority and that the sentencing judge erroneously dismissed his prior good character as a relevant mitigating factor. Merhi also claimed that the sentence was manifestly excessive.

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