Mencarious v R [2014] NSWCCA 104

Mencarious v R [2014] NSWCCA 104

Although the sentence proceedings miscarried because the standard non-parole period was applied according to an approach later disapproved in Muldrock, no lesser sentence was warranted in law. The offence was extremely serious: after a savage assault the appellant deliberately and intentionally killed his wife by asphyxiation, had not established mitigating loss of control, had only qualified remorse, was not entitled to a reduction for surrender to police, and no special circumstances justified altering the statutory ratio. The existing sentence of a 20 year non-parole period with a balance of 6 years and 8 months was appropriate.

Jurisdiction
Australia
Judgment Date
16 June 2014
Procedural Posture
Criminal Appeal Against Sentence Following Referral Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw) / Court of Criminal Appeal Redetermination of Sentence
Outcome
Appeal dismissed.
Legal Topics
['murder' 'standard Non Parole Period' 'muldrock Error' 'no Lesser Sentence Warranted in Law' 'domestic Violence' 'remorse' 'assistance to Authorities']
['criminal Law' 'sentencing' 'criminal Appeals'] ['murder' 'standard Non Parole Period' 'muldrock Error' 'no Lesser Sentence Warranted in Law' 'domestic Violence' 'remorse' 'assistance to Authorities']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence Following Referral Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw) / Court of Criminal Appeal Redetermination of Sentence

Legal Issues

  1. 1 ['Whether the sentence proceedings miscarried because the sentencing judge and the earlier appeal applied an approach to the standard non-parole period later disapproved in Muldrock v R (2011) 244 CLR 120.' 'Whether, despite established error, a lesser sentence was warranted in law.' 'Whether subjective matters including lack of prior convictions, claimed loss of control, remorse, rehabilitation, depression and surrender to police justified a lesser sentence.']

Ratio Decidendi

Although the sentence proceedings miscarried because the standard non-parole period was applied according to an approach later disapproved in Muldrock, no lesser sentence was warranted in law. The offence was extremely serious: after a savage assault the appellant deliberately and intentionally killed his wife by asphyxiation, had not established mitigating loss of control, had only qualified remorse, was not entitled to a reduction for surrender to police, and no special circumstances justified altering the statutory ratio. The existing sentence of a 20 year non-parole period with a balance of 6 years and 8 months was appropriate.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']