Regina v Mencarious - [2006] NSWSC 719

CITATION: Regina v Mencarious [2006] NSWSC 719

HEARING DATE(S): 13/03/06 - 21/03/06 inclusive; 07/07/06

JUDGMENT DATE :
17 July 2006

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J at 1

DECISION: SENTENCE OF IMPRISONMENT IMPOSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - MURDER - CONVICTION FOLLOWING TRIAL - SENTENCE

PARTIES: Regina v Ashraf Mencarious

FILE NUMBER(S): SC 2005/1090

COUNSEL: M. Grogan (Crown)
J. Klarica (Prisoner)

SOLICITORS: Solicitor, Public Prosecutions (DPP)
Marsdens (Prisoner)

LOWER COURT DATE OF DECISION: n/a

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MICHAEL GROVE J

17 July 2006

2005/1090 - REGINA v ASHRAF MENCARIOUS

SENTENCE

1 HIS HONOUR: Ashraf Mencarious, following your plea of not guilty, you have been convicted of the murder of your wife by verdict of a jury and it is my task to sentence you for that crime.

2 You were born in Egypt on 10 April 1967 but migrated to Australia with your family when you were aged about three or four years. The migration was arranged through the Eastern Coptic Church and the adherence of your family and yourself to this faith has been a matter of some significance.

3 Formal education was undertaken in local schools in the western suburbs of Sydney and you left Holroyd High School in Year 11 to pursue studies in accounting at Granville TAFE. In steady employment for over ten years, you progressed from clerk to costing supervisor and it is obvious that you were a diligent employee.

4 During this period you met a woman whom you married in 1994. That marriage produced two children, a daughter born in 1995 and a son in 1997. You had moved to Queensland and the relationship between yourself and your wife deteriorated and the marriage failed. There have been allegations about your conduct towards your first wife but I am not satisfied of the facts to the necessary standard and I make no adverse finding towards you in those regards. I note that you have not seen these children since late 2001 although I accept that personal contact would be inhibited by the need for interstate travel.

5 You reported to Mr Benad, a psychologist, that you were depressed after the breakdown of this marriage. You apparently ceased employment for a time, as he noted that you resumed employment, and worked for a number of corporations in administrative, financial or accounting roles.

6 I am presented with material which differs in some detail as to how your second marriage came about. Mr Benad records that you spoke to your father about a desire for a committed relationship and your father commented on a woman whom he had met through the church in Egypt, Nevine Youssef. Ms Bond, who prepared the pre sentence report, recorded that you told her that it was your family suggestion that they arrange for you to marry a second time. You told her that you were not completely happy with the idea, but in contemplating your first…

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 Regina v Mencarious

Details

AGLC: Regina v Mencarious [2006] NSWSC 719
Case: [2006] NSWSC 719
Decision Date: 17 July 2006

CaseChat Overview and Summary

Regina v Mencarious was a criminal case in the Supreme Court of New South Wales, where the defendant, Mencarious, was convicted of murder following a trial. The case involved a fatal stabbing that occurred during an altercation between the defendant and the victim. The central issue was whether the defendant had acted with the necessary intent to constitute murder or if the killing was an unlawful act committed in the heat of passion, potentially reducing the charge to manslaughter.

The court was required to decide whether the prosecution had proven beyond reasonable doubt that the defendant had the requisite intent to kill or cause grievous bodily harm. This involved examining the circumstances of the altercation, the defendant's actions, and the evidence presented regarding his state of mind at the time of the incident. The court also had to determine if there were any mitigating factors that could affect the severity of the sentence.

In delivering its judgment, the court emphasised the importance of the intent to kill or cause grievous bodily harm in establishing murder. The court found that the evidence supported a conclusion that the defendant had acted with the necessary intent. The court rejected the defence of provocation, holding that the defendant had not acted in the heat of passion. The court imposed a sentence of life imprisonment, reflecting the seriousness of the offence and the need for deterrence and protection of society.

Orders