AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 17 September 2021

Merheb v R

[2021] NSWCCA 224

Theft & property

Citation: Merheb v R [2021] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 17 September 2021
Judges: Payne JA, Price J, Wright J (all agreeing)

Background

The applicant pleaded guilty in the Local Court to two charges: aggravated break and enter and committing a serious indictable offence (knowing persons were present), and attempted break and enter with intent to commit a serious indictable offence. Both offences occurred in October 2019 while the applicant was on parole for a prior drug supply conviction. He was committed to the District Court for sentencing.

On 24 June 2020, Colefax SC DCJ imposed an aggregate sentence of 5 years and 6 months' imprisonment, with a non-parole period of 4 years. The sentencing judge also took into account two additional matters on a Form 1 (a procedural mechanism allowing related offences to be considered without separate conviction). The indicative sentence for the principal offence was 4 years with a non-parole period of 3 years and 7 months, and 2 years and 3 months for the second offence.

The applicant sought leave to appeal, initially on two grounds, and then sought to add a third ground at the hearing.

  • Whether the sentencing judge erred by failing to properly reflect a finding of special circumstances in the sentence, having regard to the overall time to be spent in custody
  • Whether the aggregate sentence was manifestly excessive, assessed against comparable cases and sentencing statistics
  • Whether the sentencing judge erred by sentencing the applicant for an offence to which he had not pleaded guilty, after the judge's remarks referred to s 113(2) rather than the correct provision, s 113(1), of the Crimes Act 1900 (NSW)

Decision

Ground 1: Special circumstances. The sentencing judge made a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permits a court to depart from the standard ratio of non-parole period to overall sentence. The applicant argued the finding was not adequately reflected in the sentence structure. The Court of Criminal Appeal found no error in the way the sentencing judge applied the special circumstances finding within the aggregate sentence framework.

Ground 2: Manifest excess. The Court considered ten comparable cases and the relevant sentencing statistics. The comparable cases varied widely in offending circumstances and offender profiles, and no unifying principle emerged from them. After adjusting for guilty plea discounts, the aggregate sentences in those cases ranged from 3 years and 4 months to 7 years and 6 months. The Court found the indicative and aggregate sentences imposed here were not so far outside the available range as to be manifestly excessive, and were not plainly unjust or unreasonable when totality and all objective and subjective factors were considered.

Ground 3: Wrong statutory provision. The sentencing judge's remarks referred to s 113(2) of the Crimes Act rather than s 113(1), the provision to which the applicant had actually pleaded guilty. However, the Court found this was an isolated drafting error, apparently caused by an incorrect reference in the Crown Sentence Summary. Critically, the maximum penalty the sentencing judge identified (10 years) was correct for s 113(1), even though s 113(2) carries a higher maximum of 14 years. The indictment and court attendance notice both correctly identified s 113(1). The Court found there was no actual error in the sentence imposed and that the proposed ground was bound to fail, refusing leave to add it.

Orders Made

  • Leave refused to add proposed ground 3 as a ground of appeal
  • Leave to appeal granted on grounds 1 and 2
  • Appeal dismissed

Key Takeaways

  • A single misidentification of a statutory provision in sentencing remarks does not constitute a sentencing error where the indictment, court attendance notice, and applicable maximum penalty were all correct, and no other aspect of the sentence was affected.
  • Proposed grounds of appeal that are bound to fail will not be granted leave, even where the Crown's objection is confined to the merits and a jurisdictional point rather than a procedural objection to hearing argument.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that comparable cases must show significant similarity to be persuasive, and that a wide range of outcomes across diverse cases does not itself establish that a sentence falls outside the available range.
  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the indicative sentences recorded for each offence inform, but do not mechanically determine, the assessment of whether the overall sentence is excessive.
  • A finding of special circumstances does not operate in isolation: the Court assessed whether it was adequately reflected within the structure of the aggregate sentence as a whole, rather than by reference to any single indicative sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 113, 117, 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- A103 v R [2015] NSWCCA 210
- AM v R [2020] NSWCCA 101
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- CM v R [2020] NSWCCA 136
- Donn v R [2010] NSWCCA 20
- Dudgeon v R [2014] NSWCCA 301
- Flick v R [2012] NSWCCA 170
- GP v R [2017] NSWCCA 200
- Jackson v R [2021] NSWCCA 15
- JM v R [2014] NSWCCA 297
- Langbein v R [2013] NSWCCA 88
- Lonsdale v R [2020] NSWCCA 267
- Moodie v R [2020] NSWCCA 160
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Andrews [2005] NSWCCA 199
- R v Byrne [2005] NSWCCA 141
- R v Merheb [2020] NSWDC 385
- R v Mougin [2005] NSWCCA 146
- Rizk v R [2020] NSWCCA 291
- Strickland v R; O'Connor v R [2011] NSWCCA 166
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64