Mariam v R; R v Mariam [2013] NSWCCA 338

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mariam v R; R v Mariam [2013] NSWCCA 338 Hearing dates: 2 August 2013 Decision date: 20 December 2013 Before: Simpson J at [1]; Price J at [67]; R A Hulme J at [68] Decision: Mariam v R (i) Leave to appeal against sentence granted; (ii) Appeal dismissed. R v Mariam (i) Director's appeal against sentence allowed; (ii) Each sentence set aside and in lieu thereof Mahmoud Mariam sentenced as follows:  with respect to the conviction for affray, Mahmoud Mariam is sentenced to imprisonment for a fixed term of 4 years, commencing on 24 April 2010, and expiring on 23 April 2014;  with respect to the conviction for manslaughter, Mahmoud Mariam is sentenced to imprisonment comprising a non-parole period of 8 years 9 months commencing on 24 April 2011 with a balance of the term of the sentence of 3 years 3 months expiring on 23 April 2023. The earliest date the offender will be eligible for release on parole will be on the expiration of the non-parole period on 23 January 2020. Catchwords: CRIMINAL LAW - appeal - offender on trial for murder and affray - acquittal on murder charge - guilty of alternative count of manslaughter - application for leave to appeal against sentence - severity - whether sentencing judge erred in determining facts - no error found - leave to appeal granted - appeal dismissed CRIMINAL LAW - Crown appeal - s 5D Criminal Appeal Act 1912 - whether sentencing judge erred by failing to accumulate the sentences sufficiently - accumulation failed adequately to reflect criminality - whether sentencing judge erred by finding specific deterrence had limited significance - error found - whether sentences manifestly inadequate - error found - appeal allowed - each sentence set aside - offender re-sentenced Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Collier v R [2012] NSWCCA 213 House v The King [1936] HCA 40; 55 CLR 499 R v Edwards [1996] 90 A Crim R 510 R v Previtera [1997] 94 A Crim R 76 TDP v R; R v TDP [2013] NSWCCA 303 The Queen v Pemble [1971] HCA 20; 124 CLR 107 Category: Principal judgment Parties: Mahmoud Mariam (Applicant/Respondent) Regina (Respondent/Applicant) Representation: Counsel: S Odgers SC (Applicant/Respondent) J Pickering SC (Respondent/Applicant) Solicitors: Matouk Joyner Lawyers (Applicant/Respondent) S Kavanagh - Solicitor for Public Prosecutions (Respondent/Applicant) File Number(s): 2010/97926 Decision under appeal Citation: R v Mariam [2012] NSWSC 1023 Date of Decision: 2012-08-30 00:00:00 Before: Latham J File Number(s): 2010/97926