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Merkel v R

Merkel v R

Case [2019] NSWCCA 212 6 September 2019

Appeal

Sentencing

Intellectual disability

Moral culpability

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Merkel v R [2019] NSWCCA 212
Hearing dates: 29 July 2019
Date of orders: 06 September 2019
Decision date: 06 September 2019
Before: Macfarlan JA at [1]
Johnson J at [2]
Wright J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Intellectual disability and moral culpability — No error in not taking into account intellectual disability when assessing moral culpability and objective seriousness when no causal connection between the disability and the offending established — Finding of special circumstances discretionary — No error in failing to finding special circumstances — Sentence not manifestly excessive
Legislation Cited: Crimes (Administration of Sentences) Regulation 2014
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Aslan v R [2014] NSWCCA 114
AWKO v R [2010] NSWCCA 90
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Caristo v R [2011] NSWCCA 7
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jones v R [2012] NSWCCA 262
Kite v Regina [2009] NSWCCA 12
MLP v R [2006] NSWCCA 271
MLP v R [2014] NSWCCA 183
MRW v R [2011] NSWCCA 260
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v AJP [2004] NSWCCA; 150 A Crim R 575
R v Egan [2016] NSWCCA 285
R v Fidow [2004] NSWCCA 172
R v Muldrock; Muldrock v R [2012] NSWCCA 108
R v Ronald King [2009] NSWCCA 117
Roach v R [2019] NSWCCA 160
RR v R [2011] NSWCCA 235
Stines v R [2019] NSWCCA 115
SW v R [2013] NSWCCA 255
Veen v R (No 2) (1988) 164 CLR 465
Yun v R [2017] NSWCCA 317
Category: Principal judgment
Parties: John Martin Merkel (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
D Patch (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/196330
Decision under appeal

Court or tribunal:

District Court of New South Wales (Sydney)

Jurisdiction:

Criminal

Date of Decision:

10 August 2018

Before:

King SC DCJ

File Number(s):

2016/196330

Judgment

MACFARLAN JA: I agree with Wright J.
JOHNSON J: I agree with Wright J.
WRIGHT J: Mr John Merkel, the applicant, applies for leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed by King SC DCJ in the District Court on 10 August 2018.
On 28 June 2016 the applicant was charged with the following counts:

sexual intercourse with a person under the age of 10 years, being six years of age;

attempted sexual intercourse with a person under 10 years, being six years of age; and

aggravated indecent assault.

The applicant…

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 Merkel v R

Details

AGLC: Merkel v The Queen [2019] NSWCCA 212
Case: [2019] NSWCCA 212
Decision Date: 06 September 2019

CaseChat Overview and Summary

The case of Merkel v R involved the appellant, who was convicted of various criminal offences, appealing against his sentence. The nature of the appeal was to challenge the sentence imposed by the lower court. The appeal was heard in the High Court of Australia. The appellant argued that the sentencing judge had failed to take into account his intellectual disability when assessing his moral culpability and the objective seriousness of the offending. He also argued that the judge should have found special circumstances, warranting a lesser sentence.

The legal issues before the court were whether the sentencing judge erred in not considering the appellant's intellectual disability when assessing his moral culpability and the objective seriousness of the offending, and whether the judge erred in failing to find special circumstances warranting a lesser sentence. The court needed to determine whether the sentence imposed was manifestly excessive and if the failure to consider the appellant's intellectual disability constituted a significant error. Furthermore, the court examined the discretion of the judge in determining whether special circumstances existed.

The court held that there was no error in the sentencing judge's decision not to take into account the appellant's intellectual disability when assessing moral culpability and the objective seriousness of the offending. The court found that there was no causal connection between the appellant's disability and the offending, and therefore, it was not appropriate to consider the disability in these assessments. Additionally, the court found that the failure to find special circumstances was a matter of discretion for the sentencing judge, and there was no error in the judge's decision. The sentence imposed was not manifestly excessive, and the appeal was dismissed.

Orders