MERCAEL v R [2010] NSWCCA 36

New South Wales Court of Criminal Appeal

CITATION: MERCAEL v R [2010] NSWCCA 36

HEARING DATE(S): 18 February 2010

JUDGMENT DATE: 4 March 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Davies J at 93

DECISION: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW — Sentencing — mental illness — causal connection between mental illness and commission of offence

LEGISLATION CITED: Crimes Act

Engert v R (1995) 84 A Crim R 67 House v The King (1936) 55 CLR 499 CASES CITED : Kalemusic v R [2009] NSWCCA 178 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Mulato [2006] NSWCCA 282 Wilmot v R [2007] NSWCCA 278

PARTIES: MERCAEL, Suren Hurmez - Applicant The Crown

FILE NUMBER(S): CCA 2008/18957

COUNSEL: C Nash / D Kang - Applicant S Dowling - Crown

SOLICITORS: Ford Criminal Lawyers - Applicant S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/18957

LOWER COURT JUDICIAL OFFICER: Sides DCJ

LOWER COURT DATE OF DECISION: 1 June 2009

IN THE COURT OF CRIMINAL APPEAL 2008/18957

McCLELLAN CJ at CL JAMES J DAVIES J

THURSDAY 4 MARCH 2010 MERCAEL, Suren Hurmez v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Suren Hurmez Mercael applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Sides for an offence of maliciously wounding with intent to do grievous bodily harm, to which he had pleaded guilty. The victim of the offence was the applicant's estranged wife Aneta Mercael (to whom I will refer to as "the victim"). 3 On 27 February 2009 the applicant was arraigned on an indictment containing three counts, namely:- 1. Wounding the victim on 21 November 2007 with intent to murder her 2. Alternatively to 1, maliciously wounding the victim on 21 November 2007 with intent to do grievous bodily harm 3. Taking and driving the victim's motor vehicle on 21 November 2007 without her consent 4 The applicant pleaded not guilty to the charge in count 1 but guilty to the charges in counts 2 and 3 and the Crown accepted the pleas of guilty in full discharge of the indictment. 5 For the offence of maliciously wounding with intent to do grievous bodily harm the sentencing judge imposed a head sentence of twelve years nine months with a non-parole period of eight years, commencing from 23 November 2007, the date on which the applicant had been arrested and from which he had remained in custody. For the offence of driving and taking a conveyance without consent his Honour imposed a head sentence of eight months with a non-parole period of four months, also commencing on 23 November 2007 and hence to be served fully concurrently with part of the non-parole period of the sentence for the principal offence. 6 The application for leave to appeal was directed solely to the sentence for maliciously wounding with intent to do grievous bodily harm and it is unnecessary to make any further reference to the sentence for the offence of driving and taking a conveyance without consent. 7 Maliciously wounding with intent to do grievous bodily harm is an offence under s 33 of the Crimes Act. The maximum penalty for the offence is imprisonment for 25 years and there is a standard non-parole period of seven years.