Merrick v R [2017] NSWCCA 264

Merrick v R [2017] NSWCCA 264

The conviction appeal failed because, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant deliberately knocked Ms Ninness to the ground with a heavy blow that a reasonable person in his position would have realised carried a risk of serious harm. The sentencing appeal failed because the impugned findings as to the forceful blow, absence of remorse, and refusal of a discount for the conditional and unparticularised plea offer were open to the sentencing judge, and the sentence was not excessive.

Jurisdiction
Australia
Judgment Date
17 November 2017
Procedural Posture
Criminal Appeal Against Conviction and Sentence for Manslaughter / Application for Leave to Appeal; Appeals Against Conviction and Sentence Determined by the Court of Criminal Appeal
Outcome
Leave granted to appeal against conviction on ground 3 and against sentence; appeals against conviction and sentence dismissed.
Legal Topics
['manslaughter' 'unreasonable Verdict' 'unsafe or Unsatisfactory Verdict' 'question of Fact' 'dangerous and Unlawful Act' 'utilitarian Discount' 'offer to Plead Guilty' 'remorse' 'manifest Excess']
['criminal Law' 'criminal Procedure' 'sentencing'] ['manslaughter' 'unreasonable Verdict' 'unsafe or Unsatisfactory Verdict' 'question of Fact' 'dangerous and Unlawful Act' 'utilitarian Discount' 'offer to Plead Guilty' 'remorse' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Sentence for Manslaughter / Application for Leave to Appeal; Appeals Against Conviction and Sentence Determined by the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the verdict of guilty of manslaughter was unreasonable and could not be supported having regard to the evidence.' 'Whether the sentencing judge made unsustainable findings of fact, including that the applicant struck a forceful blow and had not demonstrated remorse.' "Whether a sentencing discount was required for the applicant's pre-trial conditional offer to plead guilty to manslaughter when the Crown rejected that offer." 'Whether the sentence of 11 years imprisonment with a non-parole period of 8 years and 3 months was manifestly excessive.']

Ratio Decidendi

The conviction appeal failed because, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant deliberately knocked Ms Ninness to the ground with a heavy blow that a reasonable person in his position would have realised carried a risk of serious harm. The sentencing appeal failed because the impugned findings as to the forceful blow, absence of remorse, and refusal of a discount for the conditional and unparticularised plea offer were open to the sentencing judge, and the sentence was not excessive.

Court Disposition

Leave granted to appeal against conviction on ground 3 and against sentence; appeals against conviction and sentence dismissed.

Orders

  • ['Leave is granted to appeal against conviction upon ground 3, involving a question of fact, and against sentence.' 'The appeals against both conviction and sentence are dismissed.']