R v Merrin - [2007] NSWCCA 255

No judgment structure available for this case.

Reported Decision: 174 A Crim R 100

New South Wales

Court of Criminal Appeal

CITATION: R v Merrin [2007] NSWCCA 255

HEARING DATE(S): 22/08/2007

JUDGMENT DATE:
28 August 2007

JUDGMENT OF: Giles JA at 1; Howie J at 2; Fullerton J at 63

DECISION: The appeal is allowed. The sentences imposed by Acting Judge Moore are quashed. In lieu the following sentences are imposed: Counts 2, 3 and 4 - Fixed terms of 7 months each from 12 December 2005 to expire on 11 July 2006; Count 5 - Fixed term of 10 months from 12 March 2006 and to expire on 11 January 2007; Count 1 (Form 1) - Non-parole of 14 months to commence on 12 July 2006 and to expire on 11 September 2007 with a balance of term of 8 months; Counts 8 and 9 - Fixed terms of 15 months each to commence on 12 June 2008 and to expire on 11 September 2009; Count 7 (Form 1) - Non-parole period of 18 months from 12 June 2008 with a balance of term of 2 years and 5 months. The respondent is eligible to be released to parole on 11 December 2009.

CATCHWORDS: Criminal Law - Sentence - Crown Appeal - Break, enter and steal offences - Concurrent sentences - whether appropriate for multiple repeat offending - standard non-parole period - failure to take into account - youthful offender - whether sentences manifestly inadequate.

LEGISLATION CITED: Crimes Act 1900 - s 112(2)
Crimes (Sentencing Procedure) Act 1999 - s 54B

CASES CITED: R v Harrison [2001] NSWCCA 79
R v MAK and MSK [2006] NSWCCA 381, (2006) 167 A Crim R 159
Pearce v The Queen (1998) 194 CLR 610
R v Harris [2007] NSWCCA 130
Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
R v Wall [2002] NSWCCA 42
Markarian v The Queen (2005) 79 ALJR 1048
R v Hammoud (2000) 118 A Crim R 66
Johnson v The Queen (2004) 78 ALJR 616
R v Harris [2007] NSWCCA 130
Marshall v R [2007] NSWCCA 24
R v Mostyn (2004) 145 A Crim R 304
R v Way (2004) 60 NSWLR 168
R v Cunninghan [2006] NSWCCA 176

PARTIES: Regina v Christopher Gary Merrin

FILE NUMBER(S): CCA 2007/3212

COUNSEL: T. Thorpe - Crown
H. Dhanji - Respondent

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0173; 07/31/1025

LOWER COURT JUDICIAL OFFICER: Moore ADCJ

LOWER COURT DATE OF DECISION: 15/06/2007

2007/3212
GILES JA
HOWIE J
FULLERTON J

TUESDAY 28 AUGUST 2007

REGINA v Christopher Gary MERRIN

Judgment

1 GILES JA: I agree with Howie J.

2 HOWIE J: The respondent to this Crown appeal is a young man who over a period of about two years committed, or was a participant in, 16 offences of break, enter and steal on domestic premises. A number of the offences were aggravated by the fact that there were persons present in the premises at the time they were entered and the respondent was in company. Some were also aggravated by the fact that the respondent was on parole at the time of the offending for a similar offence. The most serious offences carry a maximum penalty of 20 years imprisonment.

3 The respondent came before Moore ADCJ. On 15 June 2007 the respondent was sentenced to an overall sentence of a term of imprisonment comprised of a non-parole period of 1 year and 9 months and a balance of term of 2 years and 9 months. The respondent is due for release to parole on 11 September 2007, less than three months after he was sentenced.

4 The Crown submits that the sentence is manifestly inadequate. It is in my opinion unquestionably so and to a very substantial degree. Further, the sentencing remarks are subject to patent errors of sentencing principle that significantly affected the Judge’s discretion. There is no alternative in my opinion but for the Court to intervene in the public interest notwithstanding the imminent release of the respondent. This is another case of the hopes and expectations of a young man for early release being raised by a completely erroneous exercise of the sentencing discretion: see R v Harrison [2001] NSWCCA 79. Yet this Court is bound to intervene notwithstanding the undoubted disappointment and frustrations of the respondent.

5 It should also be noted in this regard that the Judge backdated all the sentences to the date when the respondent was returned to custody for breach of parole, being 12 December 2005. This is notwithstanding that the respondent was serving the balance of parole until 19 July 2006. In other words the offending that was before his Honour resulted in an effective minimum term of 14 months.

The facts

6 On 20 May 2005 the respondent was sentenced in the District Court on an appeal from the Local Court to an overall term of imprisonment of 12 months with, surprisingly, a non-parole period of 2 months. One of the offences for which he was sentenced was a break enter and steal. The respondent was released to parole on 10 June 2005.

7 On 16 September 2005 the offender was required to give a DNA sample to police. As a consequence on 12 December 2005 he was charged with the break and enter offences that were before Acting Judge Moore. The offender had either left his fingerprints or material containing his DNA in the premises. There were six offences of break, enter and steal to which the respondent pleaded guilty in the Local Court and for which he was committed for sentence to the District Court. The respondent also asked that four offences be taken into account on a Form 1, being three offences of break, enter and steal and one offence of break and enter with intent to steal.

8 There is no need to relate the facts of these matters. They were offences where the respondent with others broke into family homes, usually by breaking or forcing a window, and took property. In one offence the property included Christmas presents placed under a Christmas tree. Six of the offences occurred over one night. The first took place on New Year’s Eve in 2003 and the last in October 2005.

9 The second set of offences all took place in the early hours of 5 September 2005 in the Castle Hill area. Again DNA and fingerprint evidence implicated the respondent in these offences. He was charged with these offences on 8 August 2006. This spree of criminal activity resulted in three offences being before Acting Judge Moore for sentence and three offences on a Form 1. Each of the offences alleged that the applicant aided and abetted others in committing aggravated offences of break, enter and steal. Again it is unnecessary to detail the facts of each matter. They were offences committed in domestic premises in company and where people were present sleeping. The respondent asserted that he did not enter the homes.

10 There was DNA or fingerprint evidence in all but three of the offences. The offences in respect of which there was no objective evidence implicating the respondent all occurred on the same night and in the same general area as offences for which there was objective evidence against the respondent.

Subjective considerations

11 The respondent was aged 21 at the date of sentence, having been born on 6 February 1986. The offences, therefore, were committed when he was aged between 18 and 19 years of age. For some reason that has not been explained, the respondent’s full criminal record was not before the Judge and, therefore, he was unaware that the respondent had been dealt with in the Children’s Court for offences of dishonesty. The record referred only to the sentence dealt with on appeal in the District Court. The Judge dealt with the respondent as if he had no prior convictions at the date he was first sentenced in the District Court. This Court should consider this appeal on the same basis. However, the fact that the respondent had no prior offences at the time of committing the offence of break enter and steal for which he had been sentenced is of less significance having regard to the fact that there was offending both before and subsequent to the commission of that offence; see R v MAK and MSK [2006] NSWCCA 381.

12 There was a presentence report in evidence. It revealed that the respondent’s parents separated when he was very young and thereafter he spent time residing both with his father and his mother. He told the officer preparing the report that he had a close relationship with his father and wished to live with him on release. The respondent has an elder brother who is also in custody serving a sentence.

13 By reason of poor attendance and behaviour of the respondent he left school during year 9. Although he later attempted to complete year 10 by external studies, he failed to meet attendance requirements. However he had completed a Retail Certificate at TAFE. The probation officer described the respondent as having a “minimal employment history”, the respondent claiming that there were minimal work opportunities in the Central Coast where he was residing with his father. He expressed an ambition to join the army if it were possible to do so.

14 The respondent stated that he commenced smoking cannabis at the age of 13 years as a result of “negative peer association” and thereafter engaged in criminal activities to gain money for drugs. He also stated that he used ecstasy on weekends.

15 The report indicated that the respondent had participated in educational programmes while being in custody including a two-week programme focused on young offenders. He said that this was beneficial and had given him insight into his criminal behaviour. The respondent had also been involved with a drug and alcohol counsellor.

16 The report contained the following summary:

17 There was also in evidence a psychological report. It set out the background of the respondent in terms similar to that contained in the presentence report and summarised above. The respondent reported to the psychologist that he had not used drugs while in custody. He indicated that he would apply for further drug and alcohol education and counselling once sentenced. The psychologist gave the opinion that the respondent “seemed to have a positive attitude to attending a structured residential rehabilitation programme post release”.

18 In that part of the psychological report headed “Recommendations” the following appears:

19 There was also in evidence a report from an alcohol and drug counsellor at Parklea Correctional Centre. It confirmed that the respondent had participated in a number of courses while in custody and had also sought counselling in relation to his use of illicit drugs. It stated that he had participated with “diligence and commitment”. The final paragraph of this report was as follows;

20 There was in evidence before the sentencing judge a number of certificates granted to the respondent in relation to courses in which he had participated while in custody pending sentencing for these offences.

The Crown submissions

21 The Crown’s submission was in effect that the sentences imposed failed adequately, or at all, to reflect the totality of the respondent’s criminality in relation to the offences for which he was being sentenced. The Crown also submitted that there were three discrete errors obvious in the remarks of the sentencing judge. They were said to be as follows:

1. The sentencing judge erred by failing to impose sentences in accordance with the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610.

2. The sentencing judge erred by failing to appropriately take into account the offences on the Form 1 documents when imposing sentences in relation to charges 1 and 7.

22 The Crown complains that the Judge imposed the same sentences in respect of all the offences in charges 1 to 6 and the same sentences in relation to charges 7 to 9, and then made all of the sentences concurrent in breach of the principles in relation to sentencing for multiple offences derived from Pearce. The Crown contends that it was an error of principle for the judge to impose concurrent sentences for all offences and refers to the decision of this Court in R v Harris [2007] NSWCCA 130. In particular, the Crown argues that some degree of accumulation of sentences was warranted simply by reason of the fact that some of the offences were committed while the respondent was on parole.

23 The Crown notes that, in relation to the Form 1 matters, the sentences for offences in respect of which matters were taken into account were no longer than the sentences imposed for offences which did not involve a Form 1 and, therefore, argued that the Judge failed to give appropriate weight to the matters to be taken into account when sentencing for those offences to which they applied. The Crown contends that the Judge failed to apply the decision of this Court in Re Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146.

24 The Crown argues that the Judge failed to apply the standard non-parole provisions in relation to those offences that were contrary to s 112(2) of the Crimes Act, that is the offences of aiding and abetting an aggravated break, enter and steal, for which a standard non-parole period of five years applied.

25 It is also submitted by the Crown that the Judge allowed subjective matters and the desirability of rehabilitation to overshadow the objective circumstances of the offences and the other purposes of punishment including general and specific deterrence.

Respondent’s submissions

26 Mr Dhanji, who appeared for the respondent, reminded this Court of the principles that are to be applied in determining an appeal by the Crown and quoted the well-known passage of Wood CJ at CL in R v Wall [2002] NSWCCA 42 where those principles are summarised.

27 It was submitted that there was no patent error made by the sentencing judge and that the sentences were not manifestly inadequate. In particular, the respondent relied upon his youth and the line of authority, referred to by the sentencing judge, indicating that, when sentencing a youthful offender, the court will have more regard for rehabilitation than might otherwise be the case. It was submitted that the sentences imposed by his Honour were in accordance with a proper application of the principles applying to the sentencing of youthful offenders.

28 The respondent argued that there was no error in the approach taken by the sentencing judge to the matters on the Form 1. It was submitted that, given that the Judge had indicated that he would not have imposed any greater punishment on the respondent for the matters set out on the Form 1 had they been offences before the court for sentence, the Judge was correct not to place the respondent in a worse position by reason of the fact that the matters were being taken into account on a Form 1.

29 It was submitted that it was a matter generally within the discretion of the sentencing judge to determine how the sentences were to be structured in order to comply with the principle of totality and that this Court should pay due regard to the flexibility of a sentencing judge to fashion a sentence to reflect both the objective criminality of the offending and the subjective circumstances of the offender: Markarian v The Queen (2005) 79 ALJR 1048.

30 It was further argued that a sentence of four years imposed upon a person of the age of 18 years when the offence was committed was a substantial penalty for an offence of break, enter and steal particularly having regard to what was said to be the good prospects of rehabilitation as found by the sentencing judge.

31 In respect of the matters to which the standard non-parole period applied, it was submitted that that there was no error in the manner in which the sentencing judge approached the determination of the sentence, his Honour having noted the existence of the standard non-parole provisions and that he was to have due regard to it during addresses. It was noted that the standard non-parole period applicable was imprisonment for five years notwithstanding that the section to which it applied could embrace a range of offending including offences that were significantly more serious than stealing. It was argued that the circumstance of aggravation was diminished by the fact that the offenders decamped from the house rather than confront the owners when they were disturbed.

32 An issue of parity was raised even though this was not a matter to which the sentencing judge had any concern. It was noted that co-offenders in relation to the offences occurring on 5 September 2005 were dealt with in the Children’s Court, one receiving a control order of seven months with a non-parole period of three months and the other a twelve-month control order with an eight-month non-parole period.

33 Not surprisingly, significant emphasis was placed upon the fact that the respondent was due for release to parole a short time after the hearing of the appeal and that this was a matter, it was submitted, that should prevent the Court from intervening in the exercise of discretion, even if it found that the sentences were manifestly inadequate.

Determination

34 As I have already indicated there were in my view a number of errors of principle in the exercise of the sentencing judge’s discretion. I am of the firm opinion that, unfortunately, his Honour’s discretion miscarried and resulted in sentences that were plainly unjust and unreasonable, so far as the public is concerned.

35 With respect, the application of the principles established in Pearce could not have resulted in the order made by the Judge as to the manner in which the sentences were to be served. The sentencing judge imposed concurrent sentences for all offences notwithstanding that they were committed over a lengthy period of time, and, therefore, could not be described as part of a single incident of criminal activity, and notwithstanding that some of them were committed while the respondent was on parole for similar offending, a matter that would almost inevitably result in some accumulation of sentences to mark that fact. It was not open to the Judge to determine that the sentence for any one offence of aggravated break, enter and steal could encompass the total criminality for all offences that were before his Honour. This is so even if the aggravating feature of some offences being committed on parole were disregarded and even if the offences had all taken place within a relatively short period of time.

36 This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle.

37 There is no justification for imposing a sentence for one offence that is increased to encompass the criminality of all offending. Such an approach, apparently adopted by the Judge, runs contrary to sentencing practice that has been followed since Pearce and for nearly a decade. As counsel for the respondent pointed out, a single offence of break enter and steal committed by an 18 years old youth with limited record would not ordinarily warrant a sentence of imprisonment for four years. Yet that is the sentence that the Judge imposed for each of the offences of non-aggravated break, enter and steal. Although it has been recognized by the High Court that the principle in Pearce is not the only method of achieving totality when sentencing from multiple offences; see Johnson v The Queen (2004) 78 ALJR 616, no appellate court has authorised the manner in which the sentencing judge approached the task before him since Pearce was decided.

38 In relation to multiple offences of break enter and steal the appropriateness of concurrent sentences has been specifically considered by this Court in R v Harris [2007] NSWCCA 130, a decision handed down a month before the Judge sentenced the respondent. That was a case which emphasised that heavy sentences should generally be imposed for break enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence. The Court stated:

37 His Honour also erred in making the 3 sentences he imposed concurrent.

38 Offences of the nature of those committed by the Respondent each involve their own loss or damage, in part in the sense of physical damage and goods taken and in part in the unease, disquiet, and feeling of violation such offences engender. With rare exceptions, each involves a different victim or group of victims and a separate exercise of an offender's will. Even an offender who decides to spend his day breaking and entering makes separate decisions as he goes along a street, considering which houses are occupied, which may be entered undetected and which are likely to most productive of gain. Similarly in the case of car stealing or use. Although the offences may all share the same motivation, such as an offender's need for money or goods with which to indulge a drug addiction, each involves its own separate criminality. Putting aside cases where there is a significant difference in the nature of the offences, an offender's criminality is greater by reason of committing three offences rather than one or two.

"Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in conduct which were the subject of punishment on each count."

40 An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer [than] if only one offence had been committed. Making sentences wholly concurrent means that the second and subsequent effectively constitute no punishment and sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur - see R v Brown [1999] NSWCCA 323 at [24]; Mungomery (2004) 151 A Crim R 376 at 381.

41 Considerations of general and personal deterrence demand that the courts signal to would-be offenders, many of whom in this area are serial offenders, that they can expect punishment for each of their offences.

39 The principles stated in these paragraphs find no expression at all in the sentencing remarks of his Honour. But, as I have sought to make clear, there is nothing revolutionary in Harris and it is simply an example of the appropriate exercise of the sentencing discretion in relation to multiple offending, having regard to the principle of totality and the proper punishment of repeat offenders.

40 In the present case the Judge stated:

“……….one matter which has caused me to give a very careful consideration to it is the question of accumulation or concurrence of the sentences and generally the requirements of Pearce’s case CLR (sic) as to the way in which the sentences should be structured.

[The respondent’s] record is for two matters only dealt with together being carried in a conveyance without the consent of the owner and break, enter and steal for which in the District Court on appeal from the Local Court he was imprisoned for 12 months with a non parole period of two months commencing 11 May 2005. As I have already said, it was after that that many of the present matters were committed four of breaking, entering and stealing and the matters of aiding and abetting, aggravated breaking, entering and stealing.

They were committed in the middle of this lengthy chapter of criminal activity. Had all these matters been dealt with together I can well see and I would allow in [the respondent’s] favour that those sentences which he has already served would have been made concurrent with the present ones as from the nature of the penalties which were imposed it would seem that they were of lesser severity than the present chapter.

41 With respect, an offender’s criminal record has nothing to do with a determination of whether sentences for multiple offences should be made concurrent or cumulative. Nor was it instructive, in the circumstances of this particular case, to consider whether the offences, had they been dealt with together, would have resulted in concurrent sentences when some of the offences were committed whilst on parole. It was unhelpful to consider what might have been the case had all the respondent’s offending been before the one court. In any event, his Honour was clearly in error in determining that it would have been appropriate for concurrent sentences to have been imposed: no established sentencing principle could have yielded that result.

42 This error is also reflected in the Judge’s decision in relation to the weight to be placed on the matters in the Form 1. His Honour said:

43 The Judge failed to make any reference to the standard non-parole period provisions. His Honour was not assisted in the following exchange with the prosecutor:

44 This Court has considered the application of the standard non-parole provisions in relation to offences under s 112(2) of the Crimes Act on at least two occasions prior to Harris. In Marshall v R [2007] NSWCCA 24 the following was stated:

34 However, it is not an easy task to make sense of, and apply, the standard non-parole period provisions in relation to s 112(2) offences. Firstly, the standard non-parole period is 5 years as against a head sentence of 20 years. One would expect as a matter of logic and the application of ordinary sentencing principles that, if an offence was hypothetically of the mid-range of seriousness, it would carry a sentence of half the maximum penalty, that is a total term of ten years and, according to the statutory proportion under s 44 of the Crimes (Sentencing Procedure) Act, a non-parole period of seven and a half years. What then is to be made of the fact that the standard non-parole period is only 5 years? Does this disclose the intention of Parliament that the courts should take a more benign view of an offence under s 112(2) than the maximum penalty would seem to suggest? How does a court determine the sentence where the seriousness of the offence is somewhere above the mid-range of seriousness but below the most serious category of an offence under the section: by having more regard to the standard non-parole period or to the maximum penalty?

35 Secondly, the section can cover a very diverse range of offending. It is an element of the offence that a "serious indictable offence" is committed. But that category of offence includes any offence that is punishable by life or for a term of 5 years or more; see s 4 of the Crimes Act. Larceny is punishable by a term of five years and, therefore, is, on its face, at the lower end of seriousness for the type of offences that would fall within s 112(2). This might suggest that any offence under s 112(2), where the serious indictable offence is stealing, cannot be within the midrange of seriousness because there are many more serous offences that may give rise to a s 112(2) offence. For example, the offence committed in the premises might be a sexual assault committed on a child or an armed robbery.

[27]...........The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen. It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s112(2). Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the "serious indictable offence" is larceny, being classified as in the middle of the range.

37 Therefore, in determining whether the offence falls within the mid-range of seriousness, the court has to have regard to the nature of the offence committed in the premises, including its seriousness as against offences of its type generally. Where that offence is larceny, the guideline judgement in R v Ponfield (1999) 48 NSWLR 327 might assist in determining the relevant factors to be considered in the evaluation of the seriousness of the offence. So the type of premises entered, the nature and value of the property taken, and whether there is substantial damage to, or ransacking of, the contents of the premises will be relevant considerations.

38 It is also necessary for the court to consider the element of aggravation charged, both as to its nature and what was actually done that gave rise to the aggravating factor. The number of aggravating factors present and the severity of them individually and in combination will also be relevant matters. Not all aggravating factors are of the same seriousness generally speaking. For example, the infliction of actual bodily harm might not be as serious as the fact that the offender is armed with an offensive weapon. The nature of the weapon and the actual threats made with it will be of significance. However, when consideration is given to any injury inflicted on the victim it will be relevant to take into account whether it was caused intentionally or recklessly. The extent of the injury will be significant but it should be noted that the malicious infliction of grievous bodily harm or a wounding leads to a more serious offence under s 112(3).

45 Few, if any, of these considerations are reflected in the sentencing remarks. There is no attempt to determine the level of objective criminality of the applicant’s offences or to reflect the significance of the standard non-parole period. It goes without saying that there was a failure to comply with s 54B of the Crimes (Sentencing Procedure) Act that requires reasons to be given for departing from the standard non-parole period notwithstanding numerous decisions of this Court that have emphasised that obligation.

46 In so far as his Honour thought that it was a matter of particular mitigation that the offenders fled the premises rather than confront the inhabitants of the house that is in my view of little weight. Had they stood their ground it is more likely that some more serious offence would have been committed. Nor is it in my view a matter of any weight that an offender does not enter premises when he is clearly involved in a planned enterprise in which his role was to be a lookout.

47 As I have already indicated, not only has the sentencing exercise miscarried by the failure of the Judge to apply fundamental sentencing principles both generally and with regard to the standard non-parole period provisions, but the result is the imposition of sentences which are manifestly inadequate to a very substantial degree. They simply fail to reflect the objective seriousness of the offending by a repeat burglar of domestic homes in order to obtain money to feed a drug addiction.

48 The weight that may have been otherwise given to the need to aid in the respondent’s rehabilitation was considerably diminished by the fact that, having been given a very lenient sentence in the District Court and being released to parole after just two months in custody, he committed further offences of a similar nature. The fact that he did so to finance his use of drugs is an aggravating feature because using illegal drugs was itself a breach of his parole. He was given the benefit of parole supervision but presumably did not avail himself of it.

49 There is absolutely nothing in the respondent’s background that explained his fall into drug abuse and crime or warranted sympathy: he had the advantage of a supporting and loving home environment. Yet he apparently chose to associate with others who were using drugs and committing crimes. The apparent steps toward his rehabilitation while in custody prior to sentencing for these matters have to be seen in the light of his history of offending. No doubt the very lenient non-parole period that was imposed upon him in respect of his first custodial sentence was to encourage his reform and yet he continued with his previous criminal lifestyle. While the more recent progress to reform might have resulted in a finding of special circumstances in determining the non-parole period, it could not possibly justify the inadequate sentences imposed upon the respondent.

50 With respect, to describe the respondent’s subjective case as “very strong” overstates the true position to a very considerable degree. All of the respondent’s recent statements as to his insight and his appreciation of his criminal activity have to be weighed against the fact that he committed offences while on parole after he had served a short term in custody, a fact that ought to have brought him to such a realisation at that time.

51 None of the authorities concerned with sentencing young persons, to which the Judge referred, countenance the approach taken by the Judge. He clearly gave disproportionate weight to the subjective material and failed to have any regard to general or specific deterrence. The Judge mentioned neither of those important factors in the sentencing remarks.

52 In my opinion there is insufficient reason for this Court to refuse to intervene in the exercise of its discretion. There is an affidavit by the respondent before the Court but it does not disclose any material that would justify dismissing the appeal.

Re-sentencing the respondent

53 As is usually the case where the Court is re-sentencing after a successful Crown appeal, the sentence now to be imposed upon the respondent is at the bottom of the legitimate range that could have been imposed by the Judge. The sentences are to be moderated by the fact that the respondent will feel the effects of the increase in the sentences more acutely because he was no doubt hoping to be released within a few weeks. It has been previously been remarked by this Court that a judge who imposes a sentence that is so inadequate as to raise unfounded hopes in an offender of early release does the offender no favour.

54 The respondent was said to be on protection because he feared retribution as a result of assistance given to the authorities by his brother. There was not the slightest evidence of what that meant in a practical way to the respondent. Clearly he has been given access to counselling and rehabilitation courses. There is some reference in the psychologist’s report and in an affidavit by the respondent tendered in this Court to his not being able to access the Young Offender’s Programme. But there is no other reference in any of the material to any particular deprivations that may have resulted from his protective status. This Court has stated on more than one occasion that it is for the offender to provide evidence of the impact of protection upon him if it is to be taken into account as a mitigating factor. In R v Mostyn (2004) 145 A Crim R 304 in a passage that was quoted with approved in R v Way (2004) 60 NSWLR 168 it was stated:

55 There are special circumstances by reason of the respondent’s youth and his prospects for rehabilitation notwithstanding his failure to take those advantages when last released to parole.

56 In respect of the offences for which a standard non-parole period applies the offences are below mid-range of objective seriousness notwithstanding that they were aggravated both by the fact that the offences were committed in company and that there were persons in the premises. Further the offences were committed at night when the occupiers feel more vulnerable. However the property stolen was not of great value, at least in monetary terms. The offences were aggravated by the fact that the respondent was on parole for similar offending. They were mitigated by the pleas of guilty and the fact that the respondent had good prospects of rehabilitation. The respondent receives no benefit from the absence of criminal record, so far as it was understood by the sentencing Judge, as he undoubtedly received that benefit when he was sentenced in the District Court on the prior occasion. The standard non-parole period is also reduced by a finding of special circumstances warranting a reduction in the non-parole period from the statutory ratio.

57 The Judge indicated that he allowed a discount of 20 per cent for the pleas of guilty because they were indicative of the respondent’s remorse and for their utilitarian value. The Judge’s approach in this respect is erroneous and at variance with a decision of this Court delivered last year that makes it plain that no part of a numerical discount should be attributed to remorse whether it is derived from the plea or otherwise: R v MAK and MSK. This was not a point raised by the Crown and the respondent should therefore be allowed the discount given by the Judge.

58 As has been noted, the Judge backdated the sentence to cover the period when the respondent was serving the balance of parole. The Judge gave his reasons for taking that course as follows:

59 It has been held that a sentencing judge has a discretion whether to backdate a sentence to the date when an offender entered into custody to serve the balance of parole: R v Cunningham [2006] NSWCCA 176. In the present case that discretion miscarried because it was based upon an erroneous understanding of the principle of totality. In the present case there was every reason not to backdate the sentences. The applicant was in breach of parole not simply by reason of the offences that were before the sentencing judge but also because he had immediately on release re-entered into a lifestyle involving the use of illegal drugs which was itself a breach of his parole. However, as the Crown did not make complaint about this aspect of the sentencing, even though it was contrary to a submission made by the prosecutor at the sentencing hearing, this Court should give the benefit of that finding to the respondent.

60 In the sentences that I propose should now be passed upon the respondent I have not approached the structure of the sentences as should have been done at first instance because I have to moderate the sentences substantially for discretionary reasons. I have chosen to adopt the Johnson approach. In order to achieve some proportionality with the co-offenders and because this is a Crown appeal, for the matters committed on 5 September 2005 I have proposed concurrent sentences although that would not have been an appropriate course at first instance.

61 In order to understand the sentences imposed I have adopted the following numbering system:

Count
1. Riveroaks Street, Mardi, 7.6.04

2 Orchid Road, Wadalba, 4.12.04

3. The Ridge, Wadalba, 4.12.04

4. The Terrace, Watanobbi, 22.12.04

5. Longworth Cres, Castle Hill, 5.9.05

6. Nords Warf Road, Nords Warf, 17.10.05

7. Longworth Cres, Castle Hill, 4.9.05

8. Milford Grove, Cherrybrook, 4.9.05

62 I propose the following orders. The appeal is allowed. The sentences imposed by Acting Judge Moore are quashed. In lieu the following sentences are imposed:

Count
2, 3 and 4 Fixed terms of 7 months each to date from 12 December 2005 and to expire on 11 July 2006

5 Fixed term of 10 months to date from 12 March 2006 and to expire on 11 January 2007

1 (Form1) Non-parole of 14 months to commence on 12 July 2006 and to expire on 11 September 2007 with a balance of term of 8 months.

8 and 9 Fixed terms of 15 months each to commence on 12 June 2008 and to expire on 11 September 2009

7 (Form 1) Non-parole period of 18 months to date from 12 June 2008 with a balance of term of 2 years and 5 months.

The respondent is eligible to be released to parole on 11 December 2009.

63 FULLERTON J: I agree with Howie J.

**********

Citations

R v Merrin [2007] NSWCCA 255

Most Recent Citation

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Statutory Material Cited

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R v Harrison [2001] NSWCCA 79

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CITATION:	R v Merrin [2007] NSWCCA 255
HEARING DATE(S):	22/08/2007
JUDGMENT DATE:	28 August 2007
JUDGMENT OF:	Giles JA at 1; Howie J at 2; Fullerton J at 63
DECISION:	The appeal is allowed. The sentences imposed by Acting Judge Moore are quashed. In lieu the following sentences are imposed: Counts 2, 3 and 4 - Fixed terms of 7 months each from 12 December 2005 to expire on 11 July 2006; Count 5 - Fixed term of 10 months from 12 March 2006 and to expire on 11 January 2007; Count 1 (Form 1) - Non-parole of 14 months to commence on 12 July 2006 and to expire on 11 September 2007 with a balance of term of 8 months; Counts 8 and 9 - Fixed terms of 15 months each to commence on 12 June 2008 and to expire on 11 September 2009; Count 7 (Form 1) - Non-parole period of 18 months from 12 June 2008 with a balance of term of 2 years and 5 months. The respondent is eligible to be released to parole on 11 December 2009.
CATCHWORDS:	Criminal Law - Sentence - Crown Appeal - Break, enter and steal offences - Concurrent sentences - whether appropriate for multiple repeat offending - standard non-parole period - failure to take into account - youthful offender - whether sentences manifestly inadequate.
LEGISLATION CITED:	Crimes Act 1900 - s 112(2) Crimes (Sentencing Procedure) Act 1999 - s 54B
CASES CITED:	R v Harrison [2001] NSWCCA 79 R v MAK and MSK [2006] NSWCCA 381, (2006) 167 A Crim R 159 Pearce v The Queen (1998) 194 CLR 610 R v Harris [2007] NSWCCA 130 Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 R v Wall [2002] NSWCCA 42 Markarian v The Queen (2005) 79 ALJR 1048 R v Hammoud (2000) 118 A Crim R 66 Johnson v The Queen (2004) 78 ALJR 616 R v Harris [2007] NSWCCA 130 Marshall v R [2007] NSWCCA 24 R v Mostyn (2004) 145 A Crim R 304 R v Way (2004) 60 NSWLR 168 R v Cunninghan [2006] NSWCCA 176
PARTIES:	Regina v Christopher Gary Merrin
FILE NUMBER(S):	CCA 2007/3212
COUNSEL:	T. Thorpe - Crown H. Dhanji - Respondent
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/31/0173; 07/31/1025
LOWER COURT JUDICIAL OFFICER:	Moore ADCJ
LOWER COURT DATE OF DECISION:	15/06/2007