Merhi v R [2019] NSWCCA 322

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Merhi v R [2019] NSWCCA 322 Hearing dates: 1 November 2019 Date of orders: 24 December 2019 Decision date: 24 December 2019 Before: Macfarlan JA at [1] Harrison J at [2] Cavanagh J at [3] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed by McClintock SC DCJ on 12 April 2019 is quashed. (4) In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of four years and six months with a non-parole period of two years and six months. The sentence is back-dated to 12 March 2019 and will expire on 11 September 2023. The non-parole period of two years and six months expires on 11 September 2021. The applicant is eligible to be released on parole on 12 September 2021. Catchwords: CRIME — appeals — application for leave to appeal against sentence — offences of bribery of a public official, aid and abet importation of tobacco products knowing of an intent to defraud revenue and dealing in proceeds of crime greater than $100,000 — where applicant formerly employed as a Customs Officer — whether sentencing judge erred by considering fact of applicant's former employment as a Customs Officer as a matter seriously aggravating the offending — whether offending constituted an abuse of trust or authority — whether sentencing judge erroneously dismissed applicant's prior good character as a relevant mitigating factor — whether sentence was manifestly excessive — appeal allowed — resentence Legislation Cited: Crimes Act 1914 (Cth), s 16A Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Criminal Code Act 1995 (Cth) ss 11.2, 141.1, 400.4 Customs Act 1901 (Cth), s 233BABAD Cases Cited: Conte v R [2018] NSWCCA 209 Hughes v R [2018] NSWCCA 2 JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 Kentwell v The Queen (2014) 252 CLR 601; [2014] CLR 601 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Kennedy [2000] NSWCCA 527 R v Lamella [2014] NSWCCA 122 R v Obeid (No 12) [2016] NSWSC 1815 R v Standen [2011] NSWSC 1422 Suleman v R [2009] NSWCCA 70 Turnbull v R [2019] NSWCCA 97 Windle v R [2011] NSWCCA 277 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Johayna Merhi (Applicant) Crown (Respondent) Representation: Counsel: T F Woods (Applicant) P McEniery (Crown)