Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mencarious v R [2014] NSWCCA 104 Hearing dates: 27 May 2014 Decision date: 16 June 2014 Before: Simpson J at [1]; Adams J at [2]; McCallum J at [24] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - referral under s 78 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - no lesser sentence warranted at law Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 78 Criminal Appeal Act 1912 (NSW), s 78 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23 and 24 Cases Cited: Muldrock v R (2011) 244 CLR 120 R v Mencarious [2006] NSWSC 719 Mencarious v R [2008] NSWCCA 237 R v Way (2004) 60 NSWLR 168 Category: Principal judgment Parties: Ashraf Mencarious (Appellant) Regina (Respondent) Representation: Counsel: D Barrow (Appellant) J A Girdham SC (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2005/2951 Decision under appeal Jurisdiction: 9111 Date of Decision: 2006-07-17 00:00:00 Before: Grove J File Number(s): SC 2005/1090 Judgment 1SIMPSON J: I agree with Adams J. 2ADAMS J: Introduction 3On 21 March 2006, the appellant, Ashraf Mencarious, was convicted following a trial by jury of the murder of his wife Nevine Youseff. He was sentenced on 7 July 2006 to imprisonment comprising a non-parole period of 20 years commencing 15 December 2004, with a balance of term of 6 years and 8 months to expire on 14 August 2031. He appealed from his conviction and sentence to the Court of Criminal Appeal. On 14 October 2008 the appeals were dismissed. The appellant, in late 2013, applied under s 78 of Crimes (Appeal and Review) Act 2001 (NSW) for an enquiry into his sentence, submitting that the judgments both of the learned primary judge and in the Court of Criminal Appeal proceeded upon a basis which was disapproved by the High Court in Muldrock v R (2011) 244 CLR 120. Although the sentences at first instance and the approach of the Court of Criminal Appeal accorded with the law as it was then understood, the appellant submitted, his sentence was imposed and subsequent appeal dismissed by applying erroneous principle. 4The crucial passage in the judgment at first instance (R v Mencarious [2006] NSWSC 719) was - "[30] Parliament has decreed that an offence of murder which is in the middle of the range of objective seriousness for such offence should have imposed a standard non parole period of imprisonment for twenty years. It is therefore a matter to which I must turn to determine whether your offence is in the middle of that range. ... [35] It is not inevitable that upon such a finding the standard non parole period must be applied if there are reasons to depart from it, and I turn to consider subjective matters raised on your behalf. In an appropriate case, such matters may operate to result in departure in favour of an offender from imposition of the standard non parole period. ... [45] ... [After considering the question of remorse, rehabilitation, assistance to authorities and the applicant's claim that he was suffering from depression, the judge went on.] I have concluded that this is not an appropriate case in which to depart from the standard non parole period." On the hearing of the appeal, the Court (McClellan CJ at CL (James and Fullerton JJ agreeing)) confirmed the judge's approach to the standard non parole period: Mencarious v R [2008] NSWCCA 237 at [108]. 5The application of the appellant under the Crimes (Appeal and Review) Act was granted by Latham J on 20 December 2013 and the matter referred to this Court for redetermination of the sentence. By a combination of s 88(2) s 85(4) the matter is to be treated as an appeal under the Criminal Appeal Act 1912 (NSW). The Crown did not dispute that the sentence decisions were in error but submitted that the Court should dismiss the appeal under s 6(3) of that Act on the ground that no lesser sentence is warranted in law. 6It is, of course, for this Court to determine itself whether there was an error of law, although the parties are agreed that there was. It is unnecessary, however, to engage in any analysis. In my view, the concession of the Crown that the sentence proceedings miscarried, although approached in the way that, at the time, was binding on the trial judge, is appropriate. Error of law having been established, it is necessary for this Court to consider first whether the appellant should be re-sentenced and, if so, determine the appropriate sentence. The facts 7These were not in dispute, although certain inferences drawn by the primary judge were submitted to be unjustified by Mr Barrow, counsel for the appellant. The appellant's first marriage having failed sometime before, he and the deceased entered into an arranged marriage. They were married in January 2002 in Egypt, the appellant returning to Australia in February 2002, but the deceased's arrival was delayed to August 2003 due to immigration requirements. The marriage was not a happy one. They had a son in July 2004. 8The deceased had come to reside at a women's refuge after having been rescued by a police officer who found her shaking, crying and very distressed by the side of a remote rural roadway where the appellant had abandoned her. The appellant told police that the deceased "needs to understand her place here and respect me. I am on my way home and I don't want her to come back". At this time their child was only a few months of age. Overall, the learned primary judge concluded that the appellant did not regard his marriage as a partnership but that his wife was a subordinate who was subject to his dictates. Although an apprehended violence order had been taken out, the appellant and the deceased continued to have contact and they met from time to time, although this was also in breach of the rules of the refuge. The appellant killed the deceased at a hotel where they had arranged to spend the night together. 9The appellant gave evidence in the sentencing proceedings, amongst other things, concerning the events of the night in question. He claimed that the second marriage failed mainly because the deceased entered it to facilitate the migration of her family to Australia. The judge rejected the evidence of both the appellant and his sister about this matter, commenting about the latter that she had a tendency to unacceptable overstatement, exemplified by her statement that the appellant had been "always... a wonderful family man and an amazing father [who] absolutely loves, adores and cherishes all three of his children as they do him". His Honour said he gained the impression that the appellant's answers were contrived and he was not candid. In particular, he rejected as incredible that, despite the deceased's agreement to spend the night with him, he thought she was not seeking genuine reconciliation. 10On the appellant's account, when he and the deceased arrived in the hotel room they had some drinks, ordered and consumed pizza, watched some television and then had intimate relations. Reconciliation was discussed but, when the discussion turned to the possibility of the appellant sponsoring the deceased's brother to Australia (a subject that had been the cause of substantial friction in the past), the appellant claimed he realized her primary concern was the welfare of her brother and her apparent affection for the appellant was not genuine. His Honour dismissed this claim as incredible. Whatever triggered his ("savage") attack on the deceased, the appellant struck her with considerable force multiple times to the head with a bottle. The appellant said that he did this to force her to release a bite hold on his finger. The judge accepted that, at some stage the deceased did bite his finger, but this was trivial given that it was treated with antiseptic and a bandaid. The primary judge accepted that the appellant drank alcohol during the evening. (There was no alcohol detected in the blood of the deceased.) Of critical importance was the fact that she died from asphyxiation following the beating although the precise mode by which this was inflicted by the appellant was never explained. 11The jury having convicted the appellant of murder, it was a question for the primary judge to determine whether the appellant had intended to kill the deceased as distinct from intending to inflict grievous bodily harm. His Honour concluded that he intended to kill the deceased. The judge pointed out that the appellant left the hotel by avoiding areas where he might have been filmed by security cameras. He did not attempt to contact reception in order to summon an ambulance nor do anything himself about summoning assistance, although he had a mobile phone with him which he used to telephone a taxi. 12After a delay of some hours the appellant drove himself to a police station, telling the duty constable that he thought he had "done something horrible to my wife". He later spoke to a senior officer and conveyed the same information, adding that he thought he had killed her because he hit her a few times over the head with a bottle of bourbon. The judge concluded that the appellant's admission that he had hit the deceased with a bottle could easily be demonstrated and was intended to conceal having killed her by suffocation. 13The primary judge concluded that, although the appellant's use of the bottle to assault his wife "occurred during an explosion of passion, whether provoked by the comparatively minor bite on your finger or her raising the subject of her family or anything else", his subsequent act of killing her by asphyxiation fell "well outside the category of lower objective seriousness". This conclusion was inevitable. The Crown in the present appeal submitted that his Honour's conclusion meant that he rejected the probability that the asphyxiation occurred during the "explosion of passion". I do not think that his Honour so concluded. Rather, his Honour's reasoning, as it seems to me, was that the appellant's emotional state at the time he asphyxiated his wife, whatever it was, did not significantly reduce the objective seriousness of the offence, noting that the "act was deliberate and separate from the attack with the bottle and ... intentionally fatal". Subjective features 14Testimonial letters were tendered on the original proceedings. Although their significance is a matter for this Court to determine, my reading of them leads me to respectfully agree with the primary judge's approach to them - "[36] ... I have no reason to think that the various authors are other than well meaning but the utility of their expressions is somewhat diminished by the absence of any acknowledgement of the detail of your crime, which not only involved a savage attack, but a subsequent and intentional killing. One author referred to a "sad accident" and others, in differing ways, expressed levels of disbelief." His Honour concluded - "[36] ... Of course it can be said to be out of character for you to commit the crime, as I accept that your life to date has been free of conviction for any offence whatever, but I would be inclined to give greater weight to the proposition that your crime was out of character if I were persuaded that you were remorseful for what you had done. [37] I am not so persuaded. At the sentencing hearing you expressed sorrow and regret but were extremely reluctant to specify just what it was that your sorrow and regret was for. I consider that you are a self centred person and have sought to manipulate the facts and circumstances as far as you are able in order to disguise the extent of your culpability. You are not to be additionally punished by reason of that conclusion but it is a circumstance to be weighed when I consider whether this is an appropriate case in which to ameliorate the imposition of the standard non parole period." In my view, there was ample material justifying the judge's conclusions about lack of remorse and his Honour was entitled to apply this finding for the purposes of sentence. 15The primary judge found himself unable to make a positive finding of likely rehabilitation, a conclusion with which I respectfully agree. However, of course, this is of somewhat less significance given the lapse of time since the appellant's imprisonment commenced. There is some evidence about this matter in tendered material and I will deal with it in due course. 16His Honour noted that a psychologist reported the appellant had suffered depression since his wife's death but did not say that this arose from her death. Rather it was associated with incarceration which would worsen with a lengthy period of imprisonment. In my view, his Honour rightly rejected these opinions as significantly mitigatory. Submissions 17Counsel on behalf of the appellant submitted that a lesser sentence is warranted in law given the appellant's lack of any prior criminal record, that this was the first time he had been imprisoned, that he had no history of violence or any addiction to drugs and alcohol and, finally, that the offence was not planned and probably the result of a loss of control during a conflict with the victim. The Crown prosecutor in this Court did not take issue with this submission, except for the last, contending that the primary judge found there was no loss of control. I have set out above the passage in his Honour's reasons dealing with this issue. I do not think that his Honour went so far as to reject the reasonable likelihood of a heightened emotional state at the time of the killing but it was nevertheless "deliberate". In effect, his Honour concluded the appellant's emotional state, whatever its extent, it was not so significant as to place the crime in the lower range of objective seriousness. 18In accordance with well established principle, ameliorating or mitigating features relevant to sentence are for the offender to establish on the balance of probabilities. Once it be accepted that the appellant was not telling the truth about what actually happened, there is no basis, as it seems to me, for concluding in his favour that there was such a significant emotional upset as to justify a mitigation of the seriousness of the offence. The primary judge had the significant advantage over this court of hearing the appellant give evidence both during the trial and on sentence. Present circumstances 19The appellant has spent most of his sentence in maximum security on protection, with a period of five months in Parklea in 2008 for Family Court hearings. In his affidavit, tendered without objection, he said that, although he gradually adjusted to the day to day routine of gaol life he was unable to "manage the emotional distress that I was feeling about being responsible for my wife's death" and, in 2005 "began taking medication for depression which has continued to the present time". He says also - "Each day I think about my late wife Nevine and the grief I have caused her family, my family and our son... I don't think it will ever get easier to cope with this, although the medication is helping me to sleep better and manage my day. However, it doesn't dull my feelings of guilt, shame and revulsion that I am responsible for her death. I feel a deep sorrow which will last my life time." 20The appellant describes his present continuing relationship with his youngest child and reconciliation between the deceased's family and his family over the last four years. It appears also that he has re-established contact with his daughter from his previous marriage. He has been regularly visited by his parents, sister and niece. He has also been supported by a priest of the Coptic Orthodox Church of which he is a member. It appears he has been working well within the gaol system, in particular in the textiles department and in undertaking educational programs. He says (and I would accept) that he has been assessed by the psychologist as not suitable for the Violent Offenders Therapy program because of his assessment as low risk but has been advised that there are two other programs that would be more suitable, the Domestic Abuse and the Real Understanding of Self-Help programs. He has been placed on the waiting list for both of them. 21The only controversial part of this affidavit relates to the genuineness of his remorse. He was not called to give evidence of this at the proceedings before us but, on the other hand, the Crown did not seek to cross-examine him. Though indirectly, it seems to me that the reconciliation between the families provides some support, at least, for his expressions of remorse. I am prepared, for present purposes, to accept that he is now somewhat remorseful. However, the language in which this is expressed does not deal with what appears to be the fundamental underlying attitude towards the deceased which, as I understand the facts and the findings of the primary judge, was a substantial contributor to his forming the intention to kill. It seems to me, until that factor has been acknowledged and repudiated as appropriate, his expressions of remorse can only be regarded as qualified. 22One other matter requires some short discussion. It will be recalled that the appellant turned himself into police a few hours after committing the murder. This is capable of being regarded as assistance to the authorities within the meaning of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, given the substantial public interest in encouraging offenders to surrender themselves to police, gives rise to the need to consider whether any downward adjustment should be made to the sentence otherwise appropriate. However, in this case, it is clear that the appellant understood that his identification as the deceased's assailant was inevitable and he approached police in order to make such excuses as he was able in the hope that he might escape punishment, if not for the violent assaults, at least for murder. Accordingly, I would not in this case make an allowance for his surrender to the police. Conclusion 23This was an extremely serious crime in which the requirements of general deterrence are of particular point since a significant part of the appellant's motivation was his attitude to the status of his wife as opposed to his own, a view which the Court sees all too frequently in cases of so called domestic violence. There are no special circumstances justifying a variation of the ratio provided by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Since, in my view, a sentence of imprisonment comprising a non-parole period of 20 years with a balance of term of 6 years and 8 months is the appropriate sentence, it follows that I do not accept that a lesser sentence is warranted in law and accordingly I would dismiss the appeal. 24McCALLUM J: I agree with Adams J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2014