Merheb v R [2021] NSWCCA 224

Merheb v R [2021] NSWCCA 224

The sentencing judge did not err in relation to special circumstances because the record showed that accumulation, special circumstances and totality were considered and the modest exceedance of 75% for the effective overall non-parole period reflected what the judge intended, not inadvertence or miscalculation. The single reference to s 113(2) was an immaterial slip because the offence was otherwise described as attempted break and enter with intent to commit larceny, the correct maximum penalty for s 113(1) was used, and no sentencing reasoning was infected. The aggregate sentence was not manifestly excessive because the asserted mathematical approach to objective seriousness was...

Jurisdiction
Australia
Judgment Date
17 September 2021
Procedural Posture
Criminal Appeal Against Sentence; Application for Leave to Appeal / Application for Leave to Appeal to the Court of Criminal Appeal From an Aggregate Sentence Imposed in the District Court
Outcome
Leave to add proposed ground 3 was refused; leave to appeal on grounds 1 and 2 was granted; appeal dismissed.
Legal Topics
['appeal Against Sentence' 'special Circumstances' 'aggregate Sentence' 'non Parole Period' 'manifest Excess' 'comparable Cases and Sentencing Statistics' 'misidentification of Statutory Provision']
['criminal Law' 'sentencing' 'criminal Appeals'] ['appeal Against Sentence' 'special Circumstances' 'aggregate Sentence' 'non Parole Period' 'manifest Excess' 'comparable Cases and Sentencing Statistics' 'misidentification of Statutory Provision']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Sentence; Application for Leave to Appeal / Application for Leave to Appeal to the Court of Criminal Appeal From an Aggregate Sentence Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing judge erred by failing properly to reflect a finding of special circumstances having regard to the combined effect of the aggregate sentence and the balance of parole from an earlier sentence.' 'Whether the sentencing judge sentenced the applicant for an offence to which he had not pleaded guilty by referring once to s 113(2) of the Crimes Act 1900 (NSW).' 'Whether the aggregate sentence of 5 years and 6 months with a non-parole period of 4 years was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in relation to special circumstances because the record showed that accumulation, special circumstances and totality were considered and the modest exceedance of 75% for the effective overall non-parole period reflected what the judge intended, not inadvertence or miscalculation. The single reference to s 113(2) was an immaterial slip because the offence was otherwise described as attempted break and enter with intent to commit larceny, the correct maximum penalty for s 113(1) was used, and no sentencing reasoning was infected. The aggregate sentence was not manifestly excessive because the asserted mathematical approach to objective seriousness was...

Court Disposition

Leave to add proposed ground 3 was refused; leave to appeal on grounds 1 and 2 was granted; appeal dismissed.

Orders

  • ['The applicant is refused leave to add proposed ground 3 as a ground of appeal.' 'The applicant has leave to appeal on grounds 1 and 2.' 'The appeal is dismissed.']