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7
Court of Criminal Appeal 14 October 2008

Mencarious v R

[2008] NSWCCA 237

Also reported as 189 A Crim R 219
Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION MURDER DEFENCE AND PROVOCATION TO JURY APPLICATION OF PROVISO CRIMINAL LAW

Citation: Mencarious v R [2008] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 14 October 2008
Judges: McClellan CJ at CL, James J, Fullerton J

Background

The appellant was convicted by jury of murdering his wife, from whom he was estranged, following an incident at a hotel on 14 December 2004. Despite an apprehended violence order in place, the couple had arranged to spend the evening together. The Crown case was that the appellant killed his wife by asphyxiation, having also inflicted other significant injuries.

At trial, the appellant gave evidence that his wife began screaming during an argument and that he placed his hand over her mouth to quieten her, in a panic about breaching the AVO. The defence also called a forensic medicine expert who addressed cause of death. The jury returned a verdict of guilty after approximately one hour of deliberation.

The appellant was sentenced to a non-parole period of 20 years with a balance of term of 6 years and 8 months, reflecting the applicable standard non-parole period. He appealed both his conviction and, with leave, the sentence.

  • Whether the trial judge was required to detail the defence case in the summing-up
  • Whether the trial judge misstated evidence concerning the cause of death
  • Whether the trial judge erred in declining to leave self-defence and provocation to the jury
  • Whether a direction is required on a particular issue unless it is raised by the evidence
  • Whether the trial judge failed to properly direct the jury on accident, including the distinction between accident and relevant intention
  • Whether the sentencing judge erred in fixing the standard non-parole period and in applying it without sufficient regard to subjective factors

Decision

The Court of Criminal Appeal dismissed the appeal against conviction on all grounds. The court held that a trial judge is not required to direct a jury on a particular defence or issue unless that issue is genuinely raised by the evidence. Because neither self-defence nor provocation was raised on the facts, the trial judge was not obliged to leave those issues to the jury.

On the accident direction, the court considered the distinction between an accidental act and an act accompanied by the relevant intention for murder. The court found that the trial judge's directions adequately addressed this distinction and that no error had been established in the manner in which accident was put to the jury.

Regarding the alleged misstatement of evidence about cause of death, the court was not satisfied that any misstatement by the trial judge was material or that it resulted in a substantial miscarriage of justice. The court applied the relevant provisions (Rule 4 of the Criminal Appeal Rules and the proviso) in concluding the conviction should stand.

On sentence, the court found no error in the sentencing judge's approach. The sentencing judge had carefully examined both the objective circumstances of the offence and relevant subjective factors, including the appellant's lack of criminal history, first time in custody, absence of drug problems, unplanned nature of the offence, and prospects of rehabilitation. Having considered those matters, the sentencing judge concluded that departure from the standard non-parole period was not warranted, and the Court of Criminal Appeal was satisfied that the sentence was appropriate.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal sentence granted, but appeal against sentence dismissed.

Key Takeaways

  • A trial judge is not obliged to direct a jury on self-defence or provocation unless those issues are genuinely raised by the evidence presented at trial.
  • The distinction between accident and the relevant intention for murder must be adequately explained in a summing-up, but the court confirmed that directions need only address issues that arise on the particular facts.
  • In dismissing the conviction appeal, the Court of Criminal Appeal applied the proviso and Rule 4 of the Criminal Appeal Rules, finding no substantial miscarriage of justice despite the alleged misdirections.
  • Sentencing courts are required to consider both objective and subjective matters before concluding whether to depart from the standard non-parole period; the absence of genuine remorse and the brutal nature of the offence were factors the sentencing court weighed in declining to depart downward.
  • Mitigating factors such as lack of criminal history, first custodial experience, and prospects of rehabilitation do not automatically warrant departure from the standard non-parole period where the objective gravity of the offence is assessed as well outside the range of low seriousness.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Key Cases:
- Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
- Mancini v DPP [1942] AC 1
- Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
- Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171
- Stevens v R [2005] HCA 65; (2005) 227 CLR 319
- Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Domican v The Queen (1992) 173 CLR 555
- Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
- Parker v The Queen (1964) 111 CLR 665
- RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620