R v Merillo [2017] NSWCCA 173

R v Merillo [2017] NSWCCA 173

The majority held that the sentence was manifestly inadequate because, despite objective seriousness being below the mid-range, the unprovoked attack, very serious injury and permanent impairment, and the statutory guideposts required a custodial sentence, with indications that the sentence had been approached with an Intensive Correction Order in mind. However, the majority exercised the residual discretion not to interfere because the respondent's mental condition had worsened, the risk of self-harm had increased, he had complied positively with the Intensive Correction Order, and rehabilitation was well under way. The Crown appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
19 July 2017
Procedural Posture
Crown Appeal Against Sentence in Criminal Proceedings / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court of NSW
Outcome
Crown appeal against sentence dismissed.
Legal Topics
['crown Appeal Against Sentence' 'manifest Inadequacy' 'recklessly Cause Grievous Bodily Harm' 'glassing Incident' 'intensive Correction Order' 'standard Non Parole Period' 'general Deterrence' 'residual Discretion']
['criminal Law' 'sentencing' 'criminal Appeals'] ['crown Appeal Against Sentence' 'manifest Inadequacy' 'recklessly Cause Grievous Bodily Harm' 'glassing Incident' 'intensive Correction Order' 'standard Non Parole Period' 'general Deterrence' 'residual Discretion']

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Procedural Posture

Crown Appeal Against Sentence in Criminal Proceedings / Appeal to the Court of Criminal Appeal From Sentence Imposed in the District Court of NSW

Legal Issues

  1. 1 ['Whether the sentence of a 2 year Intensive Correction Order for recklessly causing grievous bodily harm was manifestly inadequate.' 'Whether the sentencing judge failed to give adequate weight to the objective seriousness of the offending, including the unprovoked attack and serious permanent injury.' 'Whether the sentencing judge gave proper weight to the standard non-parole period and maximum penalty as statutory guideposts.' 'Whether the sentencing judge impermissibly approached sentence by fashioning a term that would permit an Intensive Correction Order.' 'Whether general deterrence was properly reflected in the sentence.' 'Whether, despite manifest inadequacy, the Court should exercise its residual discretion to decline to interfere with the sentence.']

Ratio Decidendi

The majority held that the sentence was manifestly inadequate because, despite objective seriousness being below the mid-range, the unprovoked attack, very serious injury and permanent impairment, and the statutory guideposts required a custodial sentence, with indications that the sentence had been approached with an Intensive Correction Order in mind. However, the majority exercised the residual discretion not to interfere because the respondent's mental condition had worsened, the risk of self-harm had increased, he had complied positively with the Intensive Correction Order, and rehabilitation was well under way. The Crown appeal was therefore dismissed.

Court Disposition

Crown appeal against sentence dismissed.

Orders

  • ['Crown appeal against sentence dismissed.']