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Court of Criminal Appeal 16 June 2014

Mencarious v R

[2014] NSWCCA 104

HomicideDomestic & family violence
CRIMINAL LAW APPEAL AGAINST SENTENCE MULDROCK ERROR CONCEDED NO LESSER SENTENCE WARRANTED AT LAW

Citation: Mencarious v R [2014] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 16 June 2014
Judges: Simpson J, Adams J, McCallum J

Background

The appellant was convicted by jury in March 2006 of the murder of his wife and sentenced to a non-parole period of 20 years with a balance of term of 6 years and 8 months. He had previously appealed his conviction and sentence to the Court of Criminal Appeal in 2008, with both appeals dismissed. His sentence had been imposed at a time when the standard non-parole period framework was applied in a manner later disapproved by the High Court in Muldrock v R (2011) 244 CLR 120.

In late 2013, the appellant applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his sentence, arguing that both the primary judge and the 2008 Court of Criminal Appeal had applied the standard non-parole period framework in a way that constituted legal error under Muldrock. That application was granted and the matter referred to the Court of Criminal Appeal for redetermination.

The underlying facts involved a deeply troubled marriage marked by domestic violence. The appellant killed his wife at a hotel where they had arranged to spend the night. The primary judge found he intended to kill her, and that her death by asphyxiation placed the offence well outside the lower range of objective seriousness.

  • Whether the original sentence and the 2008 appeal decision were infected by legal error under the principles established in Muldrock v R
  • Whether, despite that error, any lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)
  • Whether the sentencing factors, including remorse, rehabilitation, and the appellant's surrender to police, justified a reduction in the sentence upon redetermination

Decision

The Court accepted, consistent with the Crown's concession, that both the original sentencing and the 2008 appeal proceeded on a legal basis disapproved by Muldrock. At first instance, the primary judge had treated the standard non-parole period as a benchmark that applied where the offence fell in the middle range of objective seriousness and had then asked whether subjective factors justified departure from it. That approach was no longer good law.

Having identified the error, the Court was required to determine whether resentencing was appropriate and, if so, what the correct sentence should be. Adams J conducted a fresh assessment of all relevant factors. He concluded the offence was extremely serious, involving an intentional killing of a domestic partner in circumstances that reflected a deeply problematic attitude toward the deceased's status. General deterrence was a significant consideration given the domestic violence context.

On subjective matters, Adams J accepted the appellant expressed some remorse, noting a reconciliation between the families as indirect corroboration. However, he found those expressions of remorse were qualified because they did not engage with the underlying attitudes toward the deceased that the primary judge had identified as contributing to the killing. The appellant's surrender to police was assessed but not treated as warranting a sentencing discount: the Court found the appellant had understood his identification was inevitable and had approached police to construct a defence rather than out of genuine cooperation.

The Court concluded that the original sentence, a 20-year non-parole period with a balance of 6 years and 8 months, remained appropriate. Because no lesser sentence was warranted in law, the appeal was dismissed.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing the appellant on the Muldrock-disapproved approach, treating the standard non-parole period as a benchmark for middle-range offences and then asking whether subjective factors justified departure, constituted legal error, even though that approach was binding at the time of the original sentence.
  • Under s 78 of the Crimes (Appeal and Review) Act 2001, a successful referral does not automatically produce a lesser sentence; the appellate court must still apply s 6(3) of the Criminal Appeal Act 1912 and decline to intervene where no lesser sentence is warranted in law.
  • Establishing a Muldrock error is a necessary but not sufficient condition for obtaining resentencing relief: where fresh consideration of all sentencing factors still supports the original sentence, the appeal will be dismissed.
  • A defendant's surrender to police will not attract a sentencing discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 where the court finds the surrender was motivated by self-interest rather than genuine assistance to authorities.
  • Qualified expressions of remorse, particularly where an offender does not acknowledge the underlying attitudes or conduct that contributed to the offence, carry limited mitigating weight in sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 78
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 24, 44

Cases
- Muldrock v R (2011) 244 CLR 120
- R v Mencarious [2006] NSWSC 719
- Mencarious v R [2008] NSWCCA 237
- R v Way (2004) 60 NSWLR 168