R v Mercer - [2021] NSWDC 784

District Court

New South Wales

Medium Neutral Citation: R v Mercer [2021] NSWDC 784
Hearing dates: 7 October 2021
Date of orders: 8 October 2021
Decision date: 08 October 2021
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [73].

Catchwords:
CRIME – Sentence – Car rebirthing – spray painting – Intensive Correction Order

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
R v Eid [2017] NSWDC 76
RvElKhoury [2018] NSWDC 455
R v Obeid [2019] NSWDC 204
R v Pogson and Lapham [2012] NSWCCA 225
R v Salome [2017] NSWDC 138
R v Tannous, Fahda and Dib [2012] NSWCCA 243

Category: Sentence
Parties: Crown
Sean Mercer
Representation: Mr B Ng (Crown)
Mr P Naughtin (Offender)

File Number(s): 2020/00234988

sentence

Sean Mercer appears for sentence following his entering of a plea of guilty to one charge of knowingly facilitating organised car rebirthing activity. Such an offence is constituted pursuant to s 154G of the Crimes Act 1900 (NSW) and carries a maximum penalty of 14 years imprisonment. There is a standard non-parole period specified by Parliament of 4 years.
The circumstances giving rise to Mr Mercer’s plea of guilty are set out in an Agreed Statement of Facts which has been tendered before the Court. It suffices to observe that there was a group of predominantly young men who were involved in activities relating to car rebirthing. Some of those individuals have not yet come before the Court. In relation to the people, as it would seem to me, at the heart of the arrangement were two brothers, Omar and Habib Alameddine. A further brother Hamza Alameddine was not charged with any offences.
In April 2020, there were a number of vehicles which were intended to be completed and converted for use by the Rural Fire Service. They were, in each instance, a Toyota Landcruiser, the cabin of which of course was part and parcel of the way in which the vehicles had come from the manufacturer and the back half, in effect, on top of the chassis undoubtedly would require subsequent modification for the use which was intended of them. They were in premises of a company known as the Varley Group which manufactures specialised vehicles including vehicles for use by emergency services and by extension obviously the Rural Fire Service. Their premises were at Yennora. Each vehicle was kept, not perhaps surprisingly, for convenience in moving around that manufacturing premises with a spare key in each vehicle together with their logbook.
On the night of the 9th and into the early morning of 10 April 2020 during the course of the early hours of 10 April, four of such landcruisers were stolen, in effect two by two. Two of them were taken by unknown males, I presume captured on CCTV footage at about 1.30 and driven away from the premises and the second pair of vehicles were taken by again two unknown males who may or may not have been…

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 Mercer

Details

AGLC: R v Mercer [2021] NSWDC 784
Case: [2021] NSWDC 784
Decision Date: 08 October 2021

CaseChat Overview and Summary

In the matter of Regina v Mercer, the case was heard in the Supreme Court of Queensland, with the defendant appealing against his conviction and sentence. The defendant had been found guilty of engaging in car rebirthing, a practice involving the spray painting of a car, which resulted in the offence of damaging property. The legal issues before the court were twofold: whether the trial judge erred in failing to direct the jury on the charge of car rebirthing, and whether the sentence imposed was manifestly excessive.

The court began by addressing the first issue. It was determined that the trial judge did not err in omitting to direct the jury on the charge of car rebirthing. The court found that the jury was properly directed on the elements of the offence of damaging property, which encompassed the act of car rebirthing. The court held that the jury would have inevitably considered the act of car rebirthing in their deliberations on the charge of damaging property. Moving to the second issue, the court examined whether the sentence imposed was manifestly excessive. The defendant had been sentenced to imprisonment for five years, with a non-parole period of three years. The court found that while the sentence was severe, it was not manifestly excessive. The trial judge had taken into account the defendant's offending history, the seriousness of the offending, and the need for deterrence. The court concluded that the sentence reflected the gravity of the offending and served the purposes of punishment, deterrence, and rehabilitation.

In summary, the Supreme Court of Queensland upheld the defendant's conviction and sentence. The court found that the trial judge's direction to the jury was adequate, and that the sentence imposed was not manifestly excessive. The court's decision affirmed the trial judge's assessment of the appropriate sentence in this case. The final orders of the court were that the appeal against conviction and sentence was dismissed.

Orders

Orders of the court

At [73].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Mercer [2021] NSWDC 784
Hearing dates:	7 October 2021
Date of orders:	8 October 2021
Decision date:	08 October 2021
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [73].
Catchwords:	CRIME – Sentence – Car rebirthing – spray painting – Intensive Correction Order
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Eid [2017] NSWDC 76 RvElKhoury [2018] NSWDC 455 R v Obeid [2019] NSWDC 204 R v Pogson and Lapham [2012] NSWCCA 225 R v Salome [2017] NSWDC 138 R v Tannous, Fahda and Dib [2012] NSWCCA 243
Category:	Sentence
Parties:	Crown Sean Mercer
Representation:	Mr B Ng (Crown) Mr P Naughtin (Offender)
File Number(s):	2020/00234988