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Merrick v R

Merrick v R

Case [2017] NSWCCA 264 17 November 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Merrick v R [2017] NSWCCA 264
Hearing dates: 13 September 2017
Date of orders: 17 November 2017
Decision date: 17 November 2017
Before: Gleeson JA
Beech-Jones J
Fagan J
Decision:
1. Leave is granted to appeal against conviction upon ground 3, involving a question of fact, and against sentence.
2. The appeals against both conviction and sentence are dismissed.

Catchwords:
CRIME – manslaughter – conviction appeal – whether verdict unreasonable and unsupported on evidence – differences in witnesses’ accounts of fatal assault.
CRIME – manslaughter – sentence appeal – utilitarian discount – whether discount available where plea offer rejected by prosecutor – where offer made subject to facts to be agreed and not particularised – where applicant’s case at trial and on appeal inconsistent with plea - whether sentencing judge made unsustainable findings on sentence – whether remorse demonstrated – finding of remorse precluded by continued denial of gravamen of crime.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
R v Johnson [2003] NSWCCA 129
R v Merrick (No 5) [2016] NSWSC 661
R v Oinonen [1999] NSWCCA 310
R v Pennisi [2001] NSWCCA 326
R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
Category: Principal judgment
Parties: Ross Albert Merrick (appellant)
Regina (respondent)
Representation:
Counsel:
Mr Tom Molomby SC (appellant)
Mr Richard Lancaster SC (respondent)
Solicitors:
Mr Nick Felton, Armstrong Felton (appellant)
Mr Craig Hyland, Office of the Director of Public Prosecutions (respondent)

File Number(s): 2013/369082
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Merrick (No 5) [2016] NSWSC 661

Date of Decision:

23 May 2016

Before:

Wilson J

File Number(s):

2013/369082

Judgment

THE COURT: The applicant was charged with the murder of Marika Ninness at New Lambton Heights on 21 December 2013. He was tried by jury, before Wilson J at Newcastle, in March 2016. On the 29th of that month a verdict was returned of not guilty of murder but guilty of manslaughter. He now seeks leave to appeal against his conviction on a ground which involves a question of mixed fact and law.
The maximum sentence for manslaughter under s 24 of the Crimes Act 1900 (NSW) is 25 years and no standard non-parole period applies. On 23 May 2016 Wilson J imposed a sentence of 11 years…

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 Merrick v R

Details

AGLC: Merrick v R [2017] NSWCCA 264
Case: [2017] NSWCCA 264
Decision Date: 17 November 2017

CaseChat Overview and Summary

The case of Merrick v R involved an appeal against both conviction and sentence. The appellant, who had been convicted of manslaughter, challenged the reasonableness of the verdict, arguing that it was unsupported by the evidence and that there were significant differences in the accounts given by witnesses regarding the fatal assault. The appeal also contested the sentence imposed, focusing on the application of a utilitarian discount and the assessment of remorse.

The court had to determine whether the verdict was unreasonable and unsupported by the evidence, considering the discrepancies in witness accounts. Additionally, the court examined whether the sentencing judge's decision to apply a utilitarian discount was appropriate, given that the plea offer had been rejected by the prosecutor. The court also assessed whether the sentencing judge had made sustainable findings regarding the appellant’s remorse, considering the appellant's continued denial of the essential elements of the crime.

In examining the appeal, the court found that the verdict was not unreasonable and was supported by the evidence, despite the differences in witness accounts. Regarding the sentence, the court concluded that the sentencing judge's application of a utilitarian discount was appropriate, and that the assessment of the appellant’s remorse was sustainable. The court determined that the sentencing judge had correctly considered all relevant factors in determining the sentence.

The court dismissed the appeal against both conviction and sentence. The conviction stood as reasonable and supported by the evidence, and the sentence was upheld as appropriately determined by the sentencing judge.

Orders