Menouhos v R [2019] NSWCCA 220

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Menouhos v R [2019] NSWCCA 220 Hearing dates: 9 August 2019 Date of orders: 19 September 2019 Decision date: 19 September 2019 Before: Payne JA at [1] Garling J at [2] Wright J at [69] Decision: Leave to appeal refused Catchwords: CRIME — Appeals — Appeal against sentence — Manifest excess – Special circumstance and totality – Where applicant's sentence was more severe than co-offenders – Where there exist substantial differences in the respective cases of the co-offenders Legislation Cited: Crimes Act 1900 Cases Cited: Caristo v R [2011] NSWCCA 7 Jiang v R [2010] NSWCCA 277 Texts Cited: Nil Category: Principal judgment Parties: Christopher Hardin Menouhos (Applicant) The Crown Representation: Counsel: Self-Represented (Applicant) H Roberts (Crown)

Solicitors: Solicitor for Public Prosecutions (Crown) File Number(s): 2015/103877; 2015/132158 Publication restriction: Not applicable Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 28 April 2017 Before: King SC DCJ File Number(s): 2015/132158

Judgment 1. PAYNE JA: I agree with Garling J. 2. GARLING J: The applicant stood trial in October 2016 in respect of three counts upon which he was convicted. 3. Those counts were: 1. one count contrary to s 112(2) of the Crimes Act 1900 of break and enter and commit larceny in circumstances of aggravation, 2. one count contrary to s 33(1) of the Crimes Act of wounding with intent to cause grievous bodily harm; and 3. one count contrary to s 35(3) of the Crimes Act of reckless wounding in company. 1. After conviction, the applicant entered a plea of guilty to a further count contrary to s 112(2) of the Crimes Act of aggravated break enter and steal, which happened on an entirely different occasion. With respect to that offence, the applicant asked that one offence against s 547D of the Crimes Act, of carrying a cutting implement, be dealt with on a Form 1. 2. In respect of these four offences, the applicant was dealt with on sentence in the District Court on 20 April 2017. 3. The sentencing Judge determined that it would be appropriate to proceed by way of aggregate sentence. His Honour imposed an aggregate sentence of 10 years and 6 months imprisonment with a non-parole period of 7 years and 6 months with the term of imprisonment to commence on 8 October 2015. 4. The table below sets out the indicative sentences described by the sentencing Judge, and also the maximum penalty and standard non-parole periods provided for in the Crimes Act: Offences Max/SNPP Plea Indicative Sentence s.112(2) agg. break & enter & steal 20 yrs/ 5 yrs NG 6 yrs, NPP 4 yrs 6 mths s.33(1)(a) wound with intent to cause GBH (machete) 25 yrs / 7 yrs NG 8 yrs, NPP 6 yrs s.35(3) reckless wounding in company (shotgun) 10 yrs / 4 yrs NG 4 yrs, NPP 3 yrs s.112(2) agg. break, enter & steal 20 yrs / 5 yrs PG 2 yrs 6 mths Form 1 – s.547D – carry cutting implement 6 mths