Merhi v Regina - [2009] NSWCCA 9

New South Wales
Court of Criminal Appeal

CITATION: MERHI v REGINA [2009] NSWCCA 9

HEARING DATE(S): Friday 7 November 2008

JUDGMENT DATE:
12 February 2009

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Harrison J at 72

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against severity of sentence – grounds for interference – whether sentence manifestly excessive – whether disparity in sentences between co-offenders – consideration of seriousness of offence and applicant’s substantial role in commission of offence – where appeal dismissed

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1996-1997) 189 CLR 295
Regina v Harris (2007) 171 A Crim R 267
Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Regina v Mungomery (2004) 151 A Crim R 376
Regina v Thomson & Houlton [2000] NSWCCA 309; (2001) 49 NSWLR 383

PARTIES: Safi MERHI
v REGINA

FILE NUMBER(S): CCA No 2007/4176

COUNSEL: Crown: P Calvert
App: N Steel

SOLICITORS: Crown: S Kavanagh
App: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/3137

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 13 September 2007

2007/4176

McCLELLAN CJ at CL
HALL J
HARRISON J
THURSDAY 12 FEBRUARY 2009

SAFI MERHI v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hall J

2 HALL J: The applicant, Safi Merhi, seeks leave to appeal against the severity of sentence imposed upon him in the District Court of New South Wales on 13 September 2007 following his pleas to a number of charges on an indictment.

Offences charged

3 The applicant was charged and pleaded guilty in the Local Court at Burwood on 21 May 1007 to two counts of robbery in company (being Counts 1 and 3 on the indictment) and one count of robbery armed with an offensive weapon (being Count 2 on the indictment). Each offence was contrary to s.97(1) of the Crimes Act 1900 (NSW) and carried a maximum term of imprisonment of 20 years.

4 The three charges, to which the applicant pleaded guilty, were in the following terms:-

Count 1: On 12 February 2007 at Lakemba in the State of New South Wales, [the applicant] being in company with [co-offender AEH] robbed Adhi Tyassasongko of a wallet and its contents, a mobile telephone and a portable MP3 player, the property of the said Adhi Tyassasongko.

Count 2: On 19 February 2007 at Wiley Park in the State of New South Wales, [the applicant] being armed with an offensive weapon, namely a knife, robbed Ryan Bernardo of a wallet and its contents and a bag containing a tripod, the property of the said Ryan Bernado.

Count 3: On 26 February 2007 at Punchbowl in the State of New South Wales, [the applicant] being in company with [co-offender AEH], robbed Si Mang Man of a wallet and its contents, a mobile telephone and a portable CD player,…

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 Regina

Details

AGLC: Merhi v Regina [2009] NSWCCA 9
Case: [2009] NSWCCA 9
Decision Date: 12 February 2009

CaseChat Overview and Summary

The appellant, Merhi, sought leave to appeal against the severity of the sentence imposed upon him by the County Court. The case before the High Court involved the assessment of whether the sentence was manifestly excessive and the disparity in sentences between co-offenders warranted interference. The appellant's role in the commission of the offence, along with its seriousness, were critical factors considered in the appeal process.

The central legal issues that the court was required to address were whether the sentence imposed was manifestly excessive and if there was a significant disparity between the sentences of co-offenders. The court had to weigh the seriousness of the offence against the appellant's substantial involvement and the comparative sentences handed down to his co-perpetrators. The appellant argued that the disparity in sentencing was unjust and that his sentence was excessively severe.

In evaluating the appeal, the court considered the nature and gravity of the offence, which involved substantial criminal activity. It also examined the extent of the appellant's participation in the offence. The court determined that the sentence was not manifestly excessive and that the disparity in sentencing between co-offenders was not significant enough to warrant interference. The appeal was dismissed as the court found no grounds for the sentence to be considered manifestly excessive or the disparity unjust. The court's decision affirmed the original sentence, highlighting the need to consider the overall circumstances and the role of each individual in the commission of the crime.

Orders