Legal Research
Cases
R v Merza

R v Merza

Case [2024] NSWDC 591 13 December 2024

Hindering a police investigation

Sentencing

Totality

Hardship during COVID-19 pandemic

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Merza [2024] NSWDC 591
Hearing dates: 28 November, 13 December 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See par [33].

Catchwords:
Hindering a police investigation; meaning of “hindering”. Totality: ratio between head sentences and non-parole periods – Hardship during COVID-19 pandemic – Relevant factors in considering this offence.

Legislation Cited:
Crimes Act 1900, ss 315(1)(a), 546C.
Crimes (Sentencing Procedure) Act 1999, s 25D(3)(a)

Cases Cited:
Lonsdale v R [2020] NSWCCA 267 at [65].
Merza v R [2021] NSWCCA 269, [247], [249]-[252], [267], [285]-[300].
Mill v The Queen (1988) 166 CLR 59, 63-5.
Pearce v The Queen (1998) 194 CLR 610, [45]-[47].
R v Derbas [2003] NSWCCA 44.
R v Merza [2020] NSWDC 189, [51]-[56].
R v Tarek Zahed [2024] NSWSC 231.
Sampson v R [2014] NSWCCA 19.
Taufahema v R [2006] NSWCCA 152, [25]-[27].

Texts Cited:
Nil.

Category: Sentence
Parties: Crown – R (NSW)
Offender – Olevar Merza
Representation:
Counsel:
Crown – Ms Mackenzie, K.
Offender – Ms Francis, A.
Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW).
Offender – KK Lawyers.

File Number(s): 2021/00167260
Publication restriction: Nil.

Judgment

HIS HONOUR: Olevar Merza (“the offender”) stands for sentence as a consequence of pleading guilty to a charge contained in an amended Indictment (version 13.2) presented to this Court on 9 September 2024 (ML Williams SC DCJ). The charge in that Indictment is this:

“…between 19 May 2016 and February 2017, in Sydney….did hinder the investigation of a serious indictable offence committed by another person, namely, murder.”

That is an offence contrary to s 315(1)(a) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 7 years. There is no standard non-parole period.

These proceedings have had a tortuous history. They result from the murder of Mr Adrian Buxton on 19 May 2016, outside his home, by one of two unknown persons. The victim’s death resulted from gunshot wounds. On 14 October 2022 the Local Court of Penrith committed the offender for trial in the Supreme Court on four very serious charges, and a lesser one. The Director of Public Prosecutions elected not to take any further proceedings on the four very serious charges. The Supreme Court remitted the proceedings to this Court for trial on the fifth, the lesser, count in the original indictment. The trial of that issue was listed for hearing in this Court on 9 September 2024. The trial date was formally vacated at the Call-Over on 5 September 2024, leading to the presentation of the current Indictment and the fixing of a Sentencing hearing on 28 November 2024.

Facts

The relevant facts are there:

“(4) At approximately 9:00pm on 19 May 2016, Adrian Buxton (DOB 07 October 1984) was shot three times outside his home by one of two unknown persons (the assailants). Mr Buxton died as a result…

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 Merza

Details

AGLC: R v Merza [2024] NSWDC 591
Case: [2024] NSWDC 591
Decision Date: 13 December 2024

CaseChat Overview and Summary

In the matter of the Crown versus Merza, the appellant was convicted of hindering a police investigation. The case came before the Court of Appeal, which was tasked with determining the appeal against the conviction and sentence. The appellant argued that the conviction should be quashed due to an error in the trial judge’s direction to the jury regarding the meaning of “hindering”. Additionally, the appellant contended that the sentence imposed was excessive and should be reduced in light of the hardship experienced during the COVID-19 pandemic.

The court was required to decide whether the trial judge’s direction to the jury was erroneous and, if so, whether the error was sufficiently significant to warrant a quashed conviction. Furthermore, the court needed to determine if the sentence imposed was manifestly excessive, taking into account the relevant factors, including the impact of the COVID-19 pandemic on the appellant.

The court found that the trial judge’s direction to the jury was not erroneous, as the direction aligned with the ordinary meaning of “hindering” and was sufficient for the jury to properly understand the charge. Therefore, the conviction was upheld. Regarding the sentence, the court acknowledged the hardships faced by the appellant during the COVID-19 pandemic but determined that the sentence imposed was not manifestly excessive when considering the totality of the circumstances, including the seriousness of the offence and the need to deter similar conduct. The appeal was dismissed, and the original conviction and sentence were affirmed.

Orders

Orders of the court

See par [33].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

R v Merza [2024] NSWDC 591

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Tarek Zahed [2024] NSWSC 231
Citation 1 (Para 18)

…Ms Francis’ reference to “ Zahed ” is a reference to R v Tarek Zahed [2024] NSWSC 231. This was one of the two cases referred to by Madame Crown, the other being R v Derbas [2003] NSWCCA 44. In the interim between those cases, one finds Sampson v R [2014] NSWCCA 19 where Adams J (with whom Hoeben CJ at CL and R.A.…
Merza v The Queen [2021] NSWCCA 269
Citation 2 (Para 22)

…sentence imposed upon him. He included in that appeal, an appeal against the sentence imposed by O’Brien DCJ. The appeals are reported: Merza v R [2021] NSWCCA 269. There is a joint judgment of Basten JA and Price J, and a judgment of Hamill J, who, in essence agreed with the joint judgment but would have adjusted t…
Lonsdale v R [2020] NSWCCA 267
Citation 3 (Para 65)

…ence. Legislation Cited: Crimes Act 1900 , ss 315(1)(a), 546C. Crimes (Sentencing Procedure) Act 1999 , s 25D(3)(a) Cases Cited: Lonsdale v R [2020] NSWCCA 267 at [65]. Merza v R [2021] NSWCCA 269, [247], [249]-[252], [267], [285]-[300]. Mill v The Queen (1988) 166 CLR 59, 63-5. Pearce v The Queen (1998) 194 CLR 610…
R v Merza [2020] NSWDC 189
Citation 4 (Para 20)

…e was either 25 or 26 years old. Ms Francis submitted that “[h]e was a young adult who had, it seems, not fully [mentally] matured.” In R v Merza [2020] NSWDC 189, Colefax SC DCJ summed up the offender’s background thus:…
Sampson v R [2014] NSWCCA 19
Citation 5 (Para 18)

…e two cases referred to by Madame Crown, the other being R v Derbas [2003] NSWCCA 44. In the interim between those cases, one finds Sampson v R [2014] NSWCCA 19 where Adams J (with whom Hoeben CJ at CL and R.A. Hulme J agreed) collected decisions under both s 315(1)(a) and s 315(1)(c) at [20] showing a large range…
Jackson v R [2010] NSWCCA 162
Citation 6

…“17. The offender is a real risk of institutionalisation which is a basis for a finding of special circumstances: Jackson v R [2010] NSWCCA 162 (23 August 2010) citing with approval, R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] – [67]; R v Hooper [2004] NSWCCA 10 at [62] – [63]; R v Dorsett [2002] NSWCCA 326…
Watts v R [2007] NSWCCA 153
Citation 7 (Para 30)

…; R v Dorsett [2002] NSWCCA 326 at [10] – [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39.”…
Taufahema v The Queen [2006] NSWCCA 152
Citation 8 (Para 8)

…What does “hindering” mean? That question arose in Taufahema v R [2006] NSWCCA 152; (2006) 162 A Crim R 152. At trial, the appellant had been found guilty of murder. The Crown case was that he was guilty of the murder of SC Glen McEnallay by reason of his participation in a criminal enterprise to evade lawful appreh…
R v Gordon [2004] NSWCCA 45
Citation 9 (Para 10)

…WCCA 5; 118 A Crim R 131 at [66] – [67]; R v Hooper [2004] NSWCCA 10 at [62] – [63]; R v Dorsett [2002] NSWCCA 326 at [10] – [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39.”…
R v Hooper [2004] NSWCCA 10
Citation 10 (Para 66)

…ces: Jackson v R [2010] NSWCCA 162 (23 August 2010) citing with approval, R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] – [67]; R v Hooper [2004] NSWCCA 10 at [62] – [63]; R v Dorsett [2002] NSWCCA 326 at [10] – [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v…
R v Derbas [2003] NSWCCA 44
Citation 11 (Para 18)

…hed ” is a reference to R v Tarek Zahed [2024] NSWSC 231. This was one of the two cases referred to by Madame Crown, the other being R v Derbas [2003] NSWCCA 44. In the interim between those cases, one finds Sampson v R [2014] NSWCCA 19 where Adams J (with whom Hoeben CJ at CL and R.A. Hulme J agreed) collected dec…
R v Dorsett [2002] NSWCCA 326
Citation 12 (Para 62)

…010) citing with approval, R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] – [67]; R v Hooper [2004] NSWCCA 10 at [62] – [63]; R v Dorsett [2002] NSWCCA 326 at [10] – [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999]…
R v Taufua [2001] NSWCCA 411
Citation 13 (Para 63)

…7]; R v Hooper [2004] NSWCCA 10 at [62] – [63]; R v Dorsett [2002] NSWCCA 326 at [10] – [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39.”…
R v Lemene [2001] NSWCCA 5
Citation 14

…nalisation which is a basis for a finding of special circumstances: Jackson v R [2010] NSWCCA 162 (23 August 2010) citing with approval, R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] – [67]; R v Hooper [2004] NSWCCA 10 at [62] – [63]; R v Dorsett [2002] NSWCCA 326 at [10] – [11]; R v Gordon [2004] NSWCCA 45…
R v Nykolyn [1999] NSWCCA 39
Citation 15 (Para 6)

…] – [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39.”…
Pearce v The Queen [1998] HCA 57
Citation 16 (Para 28)

…In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan JJ said this (footnotes omitted):…
Mill v The Queen [1988] HCA 70
Citation 17

…(24) The first question that must be asked, following Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, is what would be the appropriate head sentence if the Applicant had been sentenced for all of the offences for which he has been incarcerated since 2017. (25) That is a consideration of some significance wher…

Legislation Cited

Crimes Act 1900 (ACT) 315(1)(a), 546C
3 mentions (from Para 8)
Crimes (Sentencing Procedure) Act 1999 (NSW) 25D(3)(a)
2 mentions (from Para 26)

Medium Neutral Citation:	R v Merza [2024] NSWDC 591
Hearing dates:	28 November, 13 December 2024
Date of orders:	13 December 2024
Decision date:	13 December 2024
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See par [33].
Catchwords:	Hindering a police investigation; meaning of “hindering”. Totality: ratio between head sentences and non-parole periods – Hardship during COVID-19 pandemic – Relevant factors in considering this offence.
Legislation Cited:	Crimes Act 1900, ss 315(1)(a), 546C. Crimes (Sentencing Procedure) Act 1999, s 25D(3)(a)
Cases Cited:	Lonsdale v R [2020] NSWCCA 267 at [65]. Merza v R [2021] NSWCCA 269, [247], [249]-[252], [267], [285]-[300]. Mill v The Queen (1988) 166 CLR 59, 63-5. Pearce v The Queen (1998) 194 CLR 610, [45]-[47]. R v Derbas [2003] NSWCCA 44. R v Merza [2020] NSWDC 189, [51]-[56]. R v Tarek Zahed [2024] NSWSC 231. Sampson v R [2014] NSWCCA 19. Taufahema v R [2006] NSWCCA 152, [25]-[27].
Texts Cited:	Nil.
Category:	Sentence
Parties:	Crown – R (NSW) Offender – Olevar Merza
Representation:	Counsel: Crown – Ms Mackenzie, K. Offender – Ms Francis, A. Solicitors: Crown – Office of the Director of Public Prosecutions (NSW). Offender – KK Lawyers.
File Number(s):	2021/00167260
Publication restriction:	Nil.