R v Merrin (No. 2)

[2007] NSWCCA 310

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Merrin (No. 2) [2007]  NSWCCA 310

FILE NUMBER(S):
2007/00003212

HEARING DATE(S):            22/08/2007

JUDGMENT DATE: 5 November 2007

PARTIES:
Regina v Christopher Gary Merrin (No. 2)

JUDGMENT OF:      Giles JA Howie J Fullerton J   

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

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

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

CATCHWORDS:
Criminal Law - Sentence - Crown Appeal - Correction of sentence imposed to achieve the Court's intention.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 - s 45(1)

CASES CITED:

DECISION:
The sentences imposed by this Court on 28 August 2007 are revoked and in lieu the respondent is sentenced as follows:   (1) Counts 2, 3 and 4: a non-parole period  of 7 months with a balance of term of 4 months to date from 12 December 2005 with the non-parole period to expire on 11 July 2006 the date upon which the respondent is to be released to parole subject to the later sentences.  (2) Counts 5 and 6: a non-parole period of 10 months with a balance of term of 6 months to date from 12 March 2006 with the non-parole period to expire on 11 January 2007 the date upon which the respondent is to be released to parole subject to the later sentences.  (3) Count 1 (and Form 1 matters): a non-parole period of 14 months with a balance of term of 8 months to date from 12 July 2006 with the non-parole period to expire on 11 September 2007 the date upon which the respondent is to be released to parole subject to the later sentences.  (4) Counts 8 and 9: a non-parole period of 15 months with a balance of term of 8 months to date from 12 September 2007 with the non-parole period to expire on 11 December 2008 the date upon which the respondent is to be released to parole subject ot the next sentence.  (5)  Count 7 (and Form 1 matters): a non-parole period of 18 months with a balance of term of 3 years to date from 12 June 2008 with the non-parole period to expire on 11 December 2009 the date upon which the respondent is eligible to be released to parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/00003212

GILES JA
HOWIE J
FULLERTON J

MONDAY 5 NOVEMBER 2007

REGINA v Christopher Gary MERRIN (No 2)

Judgment

1. THE COURT:  This was a Crown appeal against sentences imposed in the District Court. On 28 August 2007 the Court delivered judgment and allowed the appeal. It was the stated intention of the Court that, in lieu of the sentences imposed upon the respondent by Acting Judge Moore, sentences should be imposed totalling 7 years with a non-parole period of 4 years to date from 12 December 2005 such that the earliest date upon which the respondent could be eligible for release to parole would be 11 December 2009.

2. Since judgment was pronounced it has come to the attention of the Court that the sentences imposed for each of the offences and the orders made in relation to the commencing date for those sentences do not achieve the intended result. In some cases fixed term sentences were imposed in breach of s 45(1) of the Crimes (Sentencing Procedure) Act 1999. Therefore it has been necessary to reopen the matter and resentence the respondent. The parties were advised of the Court’s intention in this regard but that further submissions were not required.

3. The Court orders that the sentences imposed on 28 August 2007 be revoked and in lieu the respondent be sentenced as follows:

   1.Counts 2, 3 and 4: a non-parole period of 7 months with a balance of term of 4 months to date from 12 December 2005 with the non-parole period to expire on 11 July 2006 the date upon which the respondent is to be released to parole subject to the later sentences.

   2.Counts 5 and 6: a non-parole period of 10 months with a balance of term of 6 months to date from 12 March 2006 with the non-parole period to expire on 11 January 2007 the date upon which the respondent is to be released to parole subject to the later sentences.

   3.Count 1 (and Form 1 matters): a non-parole period of 14 months with a balance of term of 8 months to date from 12 July 2006 with the non-parole period to expire on 11 September 2007 the date upon which the respondent is to be released to parole subject to the later sentences.

   4.Counts 8 and 9: a non-parole period of 15 months with a balance of term of 8 months to date from 12 September 2007 with the non-parole period to expire on 11 December 2008 the date upon which the respondent is to be released to parole subject to the next sentence.

5.Count 7 (and Form 1 matters): a non-parole period of 18 months with a balance of term of 3 years to date from 12 June 2008 with the non-parole period to expire on 11 December 2009 the date upon which the respondent is eligible to be released to parole.

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LAST UPDATED:     6 November 2007