R v Mendez - [2002] NSWCCA 415

CITATION: R v Mendez [2002] NSWCCA 415

FILE NUMBER(S): CCA 60513/01

HEARING DATE(S): 08/10/2002

JUDGMENT DATE:
8 October 2002

PARTIES :

Regina v Priscilla Ingrid Mendez

JUDGMENT OF: Sully J at 21; Howie J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/52/0044

LOWER COURT JUDICIAL
OFFICER : Ducker DCJ

COUNSEL : D. Woodburne - Crown
C. Craigie SC with C. Loukas - Applicant

SOLICITORS: S.E. O'Connor - Crown
Sydney Regional Aboriginal Corporation Legal Service - Applicant

CATCHWORDS: Criminal Practice and Procedure - Sentence - Relevance of provocation

LEGISLATION CITED: Crimes Act 1900 - ss 33, 35

CASES CITED:
R v Qutami [2001] NSWCCA 353
R v Palu [2002] NSWCCA 381

DECISION: Leave to appeal granted, appeal dismissed.

60513/01

SULLY J
HOWIE J
TUESDAY 8 OCTOBER 2002

R v Priscilla Ingrid MENDEZ

Judgment

1 HOWIE J: On 23 July 2001 the applicant pleaded guilty when arraigned on an indictment containing a count of maliciously inflicting grievous bodily harm. This is an offence contrary to s 35 of the Crimes Act and carries a maximum penalty of 7 years imprisonment. On 27 July 2001 Judge Ducker sentenced the applicant to 4 years imprisonment to date from 21 May 2001 with a non-parole period of 2 years and 3 months to expire on 20 August 2003 the date upon which the applicant will be eligible for release to parole. She seeks leave to appeal against that sentence.

2 The applicant was initially committed for trial on the more serious offence under s 33 of the Act, alleging that she acted with intent to do grievous bodily harm. But she offered to plead guilty to the less serious offence and the Crown accepted that offer. From the date that she pleaded guilty, the applicant was remanded in custody. She had previously been allowed on bail except for a period of 67 days. His Honour backdated the sentence he imposed to take into account this earlier period of custody.

3 The facts can be briefly stated. In the early hours of 11 November 2001, the victim, having consumed about 8 middies of beer at a hotel, caught a taxi to the residence of her ex-husband, Phillip Hansen. While the taxi waited for her, she knocked on the door and called out asking whether Mr Hanseon was all right. The applicant, who was living with Mr Hansen at the time, opened the window adjacent to the doorway and began to argue with the victim. The applicant suddenly leaned out of the window and swung a heavy object, probably a glass ashtray, into the face of the victim. The victim ran away from the house toward the taxi. The applicant, notwithstanding that she was naked at the time, pursued her.

4 As the victim attempted to get into the taxi, the applicant repeatedly struck at her head and body with the object she was carrying. While she was attacking the victim, the applicant said, “Leave us alone. I’m pregnant. We don’t…

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 R v Mendez

Details

AGLC: R v Mendez [2002] NSWCCA 415
Case: [2002] NSWCCA 415
Decision Date: 8 October 2002

CaseChat Overview and Summary

The case before the court involved a criminal charge against the appellant, Mendez, for the murder of his wife. The case was heard in the Court of Criminal Appeal of Victoria. The central issue was the appropriate sentence to be imposed on Mendez, given the circumstances of the offence and the mitigating factors, particularly the element of provocation.

The court was required to determine the correct approach to sentencing in cases where provocation is a mitigating factor. The primary legal issue was whether the trial judge had adequately considered the mitigating effect of provocation on the sentence imposed. The court also needed to assess whether the sentence was excessive or manifestly inadequate in light of the circumstances of the case.

The court examined the sentencing principles applicable to cases involving provocation. It was noted that provocation can significantly affect the moral culpability of the offender and thus should be given due weight in the sentencing process. The court found that the trial judge had failed to sufficiently consider the impact of provocation on Mendez's culpability. As a result, the sentence imposed was deemed to be manifestly inadequate. The court remitted the matter to the sentencing judge to reconsider the sentence in light of the appropriate weight given to provocation. The court also emphasised the need for clear articulation of the reasons for the sentence in future sentencing proceedings.

Orders