Regina v Mrish - [2000] NSWCCA 17

CITATION: REGINA v MRISH [2000] NSWCCA 17

FILE NUMBER(S): CCA 60364/99

HEARING DATE(S): 08/02/00

JUDGMENT DATE:
8 February 2000

PARTIES :

Regina
Nabil Mrish

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 30; Carruthers AJ at 31

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0990

LOWER COURT JUDICIAL
OFFICER : Davidson DCJ

COUNSEL : T Game SC / M Buscombe (Applicant)
D R Frearson (Crown)

SOLICITORS: Xenos Jordan (Applicant)
S E O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW - sentencing - "exceptional circumstances" - Sentencing Act 1989, s5(2) - Firearms Act 1989, s(5) - CRIMINAL LAW - sentencing - perverting the course of justice - sentence not excessive - Crimes Act 1900, s319

LEGISLATION CITED: Crimes Act 1900
Firearms Act 1989
Sentencing Act 1989

CASES CITED:
Close v R (1992) 65 ACrimR 55
R v Gray NSWCCA (unreported) 17 March 1993

DECISION: Appeal dismissed

- 9 -
IN THE COURT OF
CRIMINAL APPEAL

60364/99

SPIGELMAN CJ
HULME J
CARRUTHERS AJ
Tuesday 8 February 2000

REGINA v Nabil MRISH
JUDGMENT

1    SPIGELMAN CJ: This is an application for leave to appeal from sentences imposed upon Nabil Mrish by his Honour Judge Davidson of the District Court of New South Wales on 11 June 1999.
2 The Applicant pleaded guilty to a charge of possessing a firearm contrary to s5 of the Firearms Act 1989. The maximum penalty for that offence is ten years imprisonment. His Honour sentenced the Applicant to a fixed term of eighteen months commencing on 21 May 1999, being the last date of the trial.
3 The Applicant pleaded not guilty to two counts of intentionally perverting the course of justice, contrary to s319 of the Crimes Act 1900 (NSW). The maximum penalty for this offence is fourteen years penal servitude. The Applicant was found guilty by a jury on two separate counts.
4    Judge Davidson sentenced the Applicant to a minimum term of two years and three months from 21 May 1999 and an additional term of nine months from 21 August 2001, expiring on 20 May 2002, with respect to the first count on this second indictment. On the second count he sentenced the Applicant to a fixed term of two years from 21 May 1999, expiring on 20 May 2001.
5    On 7 February 1995 the Applicant was arrested with respect to the two charges of perverting the course of justice. During the course of the execution of a search warrant on his home on that day a firearm, together with ammunition for it, was discovered. The two counts of perverting the course of justice arose from the Applicant's conduct with respect to a charge against his brother, George Mrish. The charge was that he, together with a Henry Blunden, had murdered two persons, Mr and Mrs Dresler.
6    In March 1994 Henry Blunden died in gaol, allegedly at the hands of George Mrish, who never came to trial on that charge because, following his conviction for the murder of Mr and Mrs…

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 Mrish

Details

AGLC: Regina v Mrish [2000] NSWCCA 17
Case: [2000] NSWCCA 17
Decision Date: 8 February 2000

CaseChat Overview and Summary

The case of Regina v Mrish involved the defendant, Mrish, who was charged with perverting the course of justice and illegal possession of firearms. The dispute centred on the sentencing of Mrish, specifically whether the sentence imposed by the lower court was excessive and whether the court had correctly considered the statutory provisions relevant to the offences. The matter was heard by the higher court which was tasked with reviewing the sentence and the applicability of the "exceptional circumstances" provision under the Sentencing Act 1989.

The legal issues before the court were twofold. Firstly, the court needed to determine whether the lower court had erred in its consideration of the "exceptional circumstances" provision under section 5(2) of the Sentencing Act 1989 when imposing the sentence. Secondly, the court had to assess whether the sentence was excessive in light of the defendant's conduct and the statutory framework, including section 5 of the Firearms Act 1989 and section 319 of the Crimes Act 1900.

The court examined the evidence and submissions presented by both parties, focusing on the severity of the offences, the defendant's criminal history, and the statutory provisions relevant to the sentencing. The court concluded that the lower court had not erred in its consideration of the "exceptional circumstances" and that the sentence imposed was not excessive. The court found that the lower court had appropriately balanced the relevant factors and had not overlooked any significant aspects of the defendant's conduct. The court further held that the sentence was commensurate with the gravity of the offences and did not contravene the statutory requirements.

The final orders of the court were to affirm the sentence imposed by the lower court, rejecting the appeal brought by the defendant. The court's decision underscored the importance of adhering to statutory provisions when determining sentences and reinforced the lower court's authority in assessing the appropriate punishment for the offences committed.

Orders