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Court of Criminal Appeal 19 July 2017

R v Merillo

[2017] NSWCCA 173

Assault & violence
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE RECKLESSLY CAUSE GRIEVOUS BODILY HARM “GLASSING” INCIDENT IN HOTEL WHETHER SENTENCE MANIFESTLY INADEQUATE PAROLE PERIOD

Citation: R v Merillo [2017] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 19 July 2017
Judges: Hoeben CJ at CL, R A Hulme J, Garling J

Background

The respondent pleaded guilty in the Campbelltown District Court to recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), arising from an incident at a Camden hotel in March 2015. During a confrontation on a busy dance floor, the respondent head-butted the victim and then struck him with a glass he was holding, shattering it against the victim's left eye. The victim suffered a severe injury requiring surgical reconstruction of the eyeball, permanent facial scarring, and ongoing vision impairment correctable only with a hard contact lens.

The sentencing judge in the District Court imposed a two-year Intensive Correction Order (ICO), an order served in the community under strict conditions rather than in custody. The court had accepted a strong subjective case in the respondent's favour, including genuine remorse, the absence of any deliberate decision to use the glass as a weapon, a positive pre-sentence assessment, and the development of mental health difficulties since the offence.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the single ground that the sentence was manifestly inadequate. The offence carries a maximum penalty of ten years' imprisonment and a standard non-parole period of four years.

  • Whether the two-year ICO was manifestly inadequate, having regard to the objective seriousness of a "glassing" offence causing permanent injury
  • Whether the sentencing judge gave proper weight to the standard non-parole period of four years
  • Whether general deterrence was properly considered in the sentencing exercise
  • Whether, even if the sentence was manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal rather than resentence the respondent

Decision

The majority (Hoeben CJ at CL and R A Hulme J) found that the sentence was manifestly inadequate. The offence was assessed as above mid-range in objective seriousness, involving permanent and debilitating injury to the victim's eye, and the two-year ICO did not adequately reflect that seriousness or afford sufficient weight to general deterrence. The standard non-parole period of four years served as a meaningful benchmark against which the departure was significant.

Despite finding the sentence inadequate, the majority declined to resentence the respondent, exercising the court's residual discretion to dismiss the appeal. That discretion arises where, even though a sentence error is established, resentencing would in all the circumstances be unjust or inappropriate. The majority gave particular weight to the respondent's strong progress in complying with the ICO since sentence, his genuine rehabilitation, and the development of a mental health condition that had been exacerbated by the sentencing and appeal proceedings.

Garling J dissented on the question of residual discretion. His Honour agreed that the sentence was manifestly inadequate but was not persuaded that any mental health difficulties were untreatable in custody, or that the respondent's progress on the ICO was a sufficient reason to withhold resentencing. Garling J would have allowed the appeal and imposed a sentence of four years' imprisonment with a non-parole period of two years and six months.

The result, by majority, was that the Crown appeal was dismissed and the ICO remained in place.

Orders Made

• Uphold the appeal
• Proceed to re-sentence the respondent

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court must give meaningful weight to the standard non-parole period as a legislative benchmark, even where the subjective case is exceptionally strong.
  • A finding of manifest inadequacy does not automatically result in resentencing on a Crown appeal. The residual discretion permits the appellate court to dismiss the appeal where resentencing would produce an unjust outcome in all the circumstances.
  • In exercising the residual discretion, the majority treated the respondent's compliance with the ICO, genuine rehabilitation, and deteriorating mental health as collectively sufficient to justify dismissing the appeal, notwithstanding the identified sentencing error.
  • The agreed facts recorded that the respondent may not have had regard to the glass still being in his hand during the developing struggle, a finding that reduced (though did not eliminate) the seriousness of the "glassing" element, distinguishing this case from deliberate glass attacks.
  • Garling J's dissent illustrates that the boundaries of the residual discretion are not fixed: his Honour's view was that neither treatable mental health conditions nor expected rehabilitation would ordinarily justify declining to correct a manifestly inadequate sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 35(2) (recklessly cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW) s 5D

Cases
- Blackwell v R [2012] NSWCCA 227
- Butters v R [2010] NSWCCA 1
- CMB v Attorney-General for NSW [2015] HCA 9; 256 CLR 346
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Osborne v R [2015] NSWCCA 260
- R v Barker [2016] NSWCCA 193
- R v Begbie [2001] NSWCCA 206; 124 A Crim R 300
- R v Cahill [2015] NSWCCA 53
- R v Dodd (1991) 57 A Crim R 349
- R v Loveridge [2014] NSWCCA 120
- R v Mulligan [2016] NSWCCA 47
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60
- Reberger v R [2011] NSWCCA 132
- Sayin v R [2008] NSWCCA 307
- Whelan v R [2012] NSWCCA 147