Director of Public Prosecutions v Merrett
[2022] VCC 1818
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-01770
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY MERRETT |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 October 2022 | |
DATE OF SENTENCE: | 19 October 2022 | |
CASE MAY BE CITED AS: | DPP v Merrett | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1818 | |
REASONS FOR SENTENCE
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Subject:Common law assault, conduct endangering serious injury and recklessly cause injury.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr S. Kennedy | Gallant Law |
HER HONOUR
1Gary Merrett you have pleaded guilty to two charges of common law assault, one charge of conduct endangering serious injury and one charge of recklessly cause injury. The maximum penalty for each of these offences is five years.
2The circumstances of your offending are set out in the summary of prosecution opening on plea dated 17 October 2022, Exhibit A, and can be summarised as follows.
3You were living with the complainant and her two children at a house that your brother was renting in Camperdown in October 2020.
4On a date between the 22nd and 25 October 2020, you were in the shed at the house with the complainant and her three year old daughter who suffers autism. You had a dispute with the complainant after you were told of her daughter with the complainant yelling and screaming at you. You pushed the complainant and after she swore and abused you, you approached her again and put your hands around her throat and applied force. That is the conduct constituting Charge 1, common law assault.
5The complainant felt dizzy and thought she was going to pass out, though she did not. She did not seek medical attention.
6On Thursday, 3 December 2020 you were in the same shed with the complainant. You started acting erratically and talking about strange lights in the sky and a drone. Later in the lounge room you continued to talk to her about these issues and you told the complainant you thought that she had something to do with it. You approached her and grabbed her collar. She pushed you away. You continued to ask her about the lights and drone, then you snapped and grabbed her around the throat for about 10 seconds. You pushed her onto the couch and raised your fist. Each of these acts constitute Charge 2, common law assault.
7When challenged by the complainant, you lowered your fist and moved back. You calmed down and took a step back, the complainant asked you about the lights in order to distract you. You abused her then again grabbed her around the throat and squeezed it until she passed out. That is Charge 3, conduct endangering serious injury.
8She was passed out for a very short period, and then as she tried to stand up, you pushed her and head-butted her in the nose causing it to fracture and bleed. That is Charge 4, recklessly cause injury.
9That injury to the complainant is depicted in photograph tendered in Exhibit B. You would not take the complainant to hospital, maintaining you had done nothing wrong. She then called your brother's partner. Your brother came to the house.
10The next day the complainant went to the Camperdown Medical Clinic. After a few medical consultations the complainant had surgery to repair her nose.
11On 15 December 2020, you were arrested and interviewed. You denied the incident in October 2020. You admitted to seeing lights and having strange things occur around the property, and that you questioned the complainant about that. You maintained that you and the complainant had clashed heads and that the complainant had caused it by coming up to you. You denied you strangled her on 3 December 2020.
12No victim impact statement was prepared. I note the nasty injury that she suffered as depicted in Exhibit B, that required surgery. It is fair to say the complainant would have been very scared and frightened by your bizarre behaviour and the consequent violence that you inflicted on her in this domestic context.
13I received reports from Allan Woodward, Psychologist, dated 5 December 2017 and 8 September 2018. These were prepared for previous court appearances. They contained information regarding your personal background and relevant psychological issues.
14
I also received a letter from Leigh Booth, that run the Nexus program, dated
18 October 2022, and I take all that material into account.
15You are currently aged 38. You are the eldest of four children and have three brothers. Your parents are separated. As indicated at the time of this offending, you were living at a house rented by one of your brothers. Since your release from custody, you have lived with your father on a farm in Simpson. He wants a court to support you.
16You have a daughter who is now aged about 16. You were educated at schools in Cobden, and left school around the time your parents separated when you were about 16. You then become associating with criminal peers, and engaging in drug and alcohol use. You, at that time, did not have regular employment.
17When aged about 22, you reduced your alcohol and drug consumption and were able to hold down regular employment. You were employed as a welder for about seven years. You were supervising the workshop and directing the work of apprentices.
18In about 2010, you were employed by Mr Tyra, from Tyra Engineering as a leading hand in his engineering workshop. He described you as an honest, hardworking, respectful employee who he would trust to run his business when he was away.
19Since a young age, you've had issues with alcohol, drugs, gambling and your mental health. You commenced using cannabis when you left school. From around 2017, you commenced using methamphetamine. In 2018, you were diagnosed with major depressive disorder and stimulant use disorder.
20I was informed this offending was in the context of you using methamphetamine. That is not surprising given the bizarre nature of some of your remarks at that time. However, drug use cannot reduce your moral culpability or excuse your offending. It may explain it.
21You have a significant criminal history dating back 20 years. Between 2001-2006, there are a number of dishonesty driving and drug related offences. You received various dispositions including fines, community orders and terms of imprisonment. Apart from a minor theft, your history then recommences in 2016, with alcohol related driving offences for which you received a CCO.
22Of more relevance is your prior matters for stalking, breaching a family violence order, dishonesty, drug matters before the court in 2017 and 2018.
23
In October 2018 you were sentenced to 13 months' imprisonment with a
non-parole period of seven months. I was also informed that on 10 October of this year you were before the court for matters that occurred after these events. These offences included a driving matter but also of relevance an assault occurring in the domestic context. You were placed on a bond and required to pay funds to the court fund and lost your licence for a period of two years. Your bail in respect of these and the matters the subject of the trial was revoked when those offences mentioned above were committed by you.
24
You were in custody from 15 June 2021 until I granted you bail after you were acquitted at the trial before me. You have been in custody for 477 days and you have no outstanding matters. You offered to plead guilty to these matters on
28 September 2022. This was in the context of more serious charges relating to sexual offences allegedly committed by you against the complainant going to trial. That trial proceeded before me and you were found not guilty of those charges.
25You pleaded guilty to these matters before that trial commenced. Although it was a late plea, there is a utilitarian value in the plea, given you have saved the community the cost of what was likely to have been a separate trial. That plea is also valuable given the delay for court's experience due to COVID and the impact it has had on the administration of criminal justice in this state.
26Given your history, I am cautious regarding your rehabilitation prospects. There are some features that auger well for you, including the support of your father, your good work history and your positive engagement on a voluntary basis with the NEXUS program. A body that provides intensive case management support to assist with your transition from prison back to the community.
27It would appear that given your history, you do require assistance with drug, alcohol and mental health issues. If you are able to deal with those problems by engagement and treatment your prospects are improved.
28As indicated above, your drug use cannot excuse this offending. Your engagement in domestic violence at this level or at any level will not be tolerated. The serious actions in placing your hands around the throat of your partner, and breaking her nose to the extent she required surgery are warning signs regarding your potential to inflict significant injury in the domestic context.
29Your prior history of engaging in physical assault, breaching a family violence order and stalking in the domestic context, reveal a lack of regard for women or your previous partners who, in a relationship with you are clearly vulnerable. It is also reflective of your attitude to women, something that clearly needs to shift.
30General deterrence, specific deterrence, just punishment and denunciation are all relevant sentencing considerations. These must be balanced by matters in your favour including your plea of guilty. I also take into account principles of totality and that the offending in October was separate to the charges relating to the incident in December.
31I am conscious that the punishment purpose of your sentence is adequately dealt with by the period of imprisonment, which you have already served 477 days. I was informed that you are determined not to return to gaol, but you recognise that you need to address your drug issues and to return to employment.
32I was informed you want to work hard and move on from drugs and the violence previously in your life.
33I had you assessed as to your suitability for Community Correction Order to assist you in raising some of these issues. That report does raise some concerns, especially with this remark made by the author of the report.
34Mr Merrett, concerningly denied the offences currently before the court, and expressed little remorse for the offending behaviour. He alluded to pleading guilty to the charges to get the matter over and done with. Mr Merrett, noted these charges have detrimentally impacted his mental, this attitude will be an area he will need to work on with his case manager under the supervision condition and he will be required to discuss the offending with an aim to change his circumstances to reduce the risk of him reoffending.
35You do see the need to make changes in your life. If you could please stand up, Mr Merrett?
36In all the circumstances I propose to sentence you as follows.
37In respect of Charge 1, assault, you are convicted and sentenced to a term of imprisonment of one month.
38In respect of Charge 2, assault, you are convicted and sentenced to a term of imprisonment of one month.
39In respect of Charge 3, conduct endangering serious injury, you are convicted and sentenced to a term of imprisonment of two months.
40And in respect of Charge 4, recklessly cause injury, you are convicted and sentenced to a term of imprisonment of 10 months.
41
One month of the sentence imposed on Charge 1 and one month of the sentence imposed on Charge 3 will be cumulative, giving a total effective sentence of
12 months.
42In addition to that 12 month period of imprisonment, I impose an 18 months Community Correction Order, with the conditions as recommended by Corrections, which are as follows.
43A condition regarding treatment rehabilitation for drug.
44A treatment rehabilitation for alcohol.
45Treatment rehabilitation for mental health.
46
And treatment and rehabilitation with programs to reduce re-offending. There will also be a supervision condition. That CCO will be for a period of 18 months. And given the PSD, which I will declare in a moment, of 477 days, the
Community Correction Order will commence immediately, as you will not be required to serve anymore time in prison.
47Pursuant to s6AAA of the Sentencing Act, if you had not pleaded guilty to these matters, I would have convicted and sentenced you to a term of imprisonment of two years. Is there anything else?
48MR DEVLIN: Thank you, Your Honour and no.
49HER HONOUR: All right, thank you.
50MR KENNEDY: No, Your Honour.
51HER HONOUR: Thank you. I'll just leave the Bench. I'll leave the Bench now.
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