Medium Neutral Citation: R v Merillo [2017] NSWCCA 173
Hearing dates: 26 June 2017
Date of orders: 19 July 2017
Decision date: 19 July 2017
Before: Hoeben CJ at CL at [1]
R A Hulme J at [89]
Garling J at [90]
Decision:
Crown appeal against sentence dismissed.

Catchwords: CRIMINAL LAW – Crown appeal against sentence – recklessly cause grievous bodily harm – “glassing” incident in hotel – 2 year Intensive Correction Order imposed – whether sentence manifestly inadequate – whether sentence adequately reflected objective seriousness of offending – whether proper weight given to the standard non-parole period – whether general deterrence properly considered – very strong subjective case – use of glass not deliberate – genuine remorse – development of mental health condition since offence – sentence manifestly inadequate but residual discretion applied – Crown appeal dismissed.
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes Act 1900 (NSW) – s 35
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 3A
Criminal Appeal Act 1912 (NSW) – s 5D
Cases Cited: Blackwell v R [2012] NSWCCA 227
Butters, Jarrod Dean v R [2010] NSWCCA 1
CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Osborne v R [2015] NSWCCA 260
R v Barker [2016] NSWCCA 193
R v Begbie [2001] NSWCCA 206; 124 A Crim R 300
R v Cahill [2015] NSWCCA 53
R v Dodd (1991) 57 A Crim R 349
R v Loveridge [2014] NSWCCA 120
R v Mulligan [2016] NSWCCA 47
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60
Reberger v R [2011] NSWCCA 132
Sayin v R [2008] NSWCCA 307
Whelan, Heath Andrew v R [2012] NSWCCA 147
Category: Principal judgment
Parties: Regina – Applicant Crown
Christopher Merillo – Respondent
Representation:
Counsel:
S Hughes – Applicant Crown
G Smith SC/A Hallas – Respondent
Solicitors:
Solicitor for Public Prosecutions – Applicant Crown
S Diab – Respondent

File Number(s): 2015/93415
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

06 March 2017

Before:

Hunt DCJ

File Number(s):

2015/93415

JUDGMENT

HOEBEN CJ at CL:

Offences and sentences

On 1 August 2016 the respondent pleaded guilty in the Campbelltown District Court to an offence of recklessly cause grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of imprisonment for 10 years with a standard non-parole period of 4 years.

Sentence proceedings took place on 13 October 2016 before Hunt DCJ. The matter was adjourned to 8 December 2016 on which date his Honour ordered the respondent’s assessment for an Intensive Correction Order (ICO). His Honour…

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 Merillo

Details

AGLC: R v Merillo [2017] NSWCCA 173
Case: [2017] NSWCCA 173
Decision Date: 19 July 2017

CaseChat Overview and Summary

The case of R v Merillo was heard by the Court of Appeal, where the Crown appealed against the sentence imposed on Merillo for recklessly causing grievous bodily harm in a hotel altercation. The incident involved Merillo attacking the victim with a glass, causing significant injury. The original sentence imposed by the lower court was a two-year Intensive Correction Order, which the Crown deemed manifestly inadequate.

The court was tasked with determining whether the sentence was indeed manifestly inadequate, if it adequately reflected the objective seriousness of the offending, and whether the standard non-parole period and general deterrence were properly considered. The Crown argued that the sentence failed to adequately reflect the gravity of the offence and did not sufficiently consider the need for general deterrence. Conversely, Merillo's defence contended that the sentence was appropriate given the circumstances, including Merillo's genuine remorse and the development of a mental health condition since the offence.

The Court of Appeal found that, while the sentence was manifestly inadequate, the lower court had exercised its residual discretion appropriately. The court acknowledged the strong subjective case for a more severe penalty, but balanced this against Merillo's remorse and changed circumstances. The court concluded that the lower court had adequately considered the standard non-parole period and the need for general deterrence. As a result, the Crown's appeal was dismissed, upholding the original sentence.

The Court of Appeal confirmed that the sentence imposed was not manifestly inadequate when considering the exercise of residual discretion. No further orders were made beyond the dismissal of the Crown's appeal.

Orders