Mattar v R [2012] NSWCCA 98

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mattar v R [2012] NSWCCA 98 Hearing dates: 28 March 2012 Decision date: 17 May 2012 Before: Beazley JA at 1 Harrison J at 2 McCallum J at 28 Decision: 1. Dismiss the appeal against conviction. 2. Grant leave to appeal against sentence and allow the appeal. 3. Quash the sentence imposed upon the appellant by her Honour Syme DCJ on 27 August 2010. 4. In lieu thereof, sentence the appellant to a fixed term of imprisonment of 12 months commencing on 31 May 2011. 5. Grant liberty to apply if considered necessary or appropriate in respect of any alteration of or amendment to the commencing date of the sentence in the light of the these remarks. Catchwords: CRIMINAL LAW - escape lawful custody - appeal against conviction - conviction following judge alone trial - existence of points raised by appellant that might be decided in favour of the appellant - no substantial miscarriage of justice - conviction appeal dismissed CRIMINAL LAW - escape lawful custody - appeal against sentence - whether sentence manifestly excessive - failure by trial judge to consider special circumstances - evidence to support finding of special circumstances - error by trial judge - lesser sentence warranted in law - sentence appeal allowed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Ngyuen v R [2008] NSWCCA 163 R v Cotterill [2012] NSWSC 89 R v Loughnan [1981] VR 443 R v Novakovic [2004] NSWCCA 437 R v Rogers (1986) 86 A Crim R 542 Taiapa v R [2009] HCA 53; (2009) 240 CLR 95 Category: Principal judgment Parties: Emil Rahib Mattar (Appellant) Crown (Respondent) Representation: B Brassil (Appellant) S Dowling (Respondent) Peter Murphy Criminal Law (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/36588 Decision under appeal Before: Syme DCJ File Number(s): 2009/36588