R v Merritt - [2023] NSWDC 339

District Court

New South Wales

Medium Neutral Citation: R v Merritt [2023] NSWDC 339
Hearing dates: 05 April 2023
Date of orders: 05 April 2023
Decision date: 05 April 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence of imprisonment of 2 years with a non-parole period of 1 year

Catchwords:
CRIME — Violent offences — Stalking or intimidation
SENTENCING — Aggravating factors — Home of victim or any other person — In company — Use of weapon
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Probation and parole — Offence committed whilst on parole
SENTENCING — Relevant factors on sentence — Objective seriousness— Aboriginal offenders— Age of offender — Drug addiction — Surrender of weapon — Special circumstances
SENTENCING PROCEDURE — Application of s 15 Children (Criminal Procedure) Act 1987 (NSW)

Legislation Cited:
Children (Criminal Procedure) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Merritt [2019] NSWDC 713
R v Moradian [2011] NSWDC 130

Category: Sentence
Parties: Greg Merritt (the offender)
Director of Public Prosecutions (the Crown)
Representation: Solicitors:
N Ashby Legal Aid (for the offender)
L McGonigal (for the Director of Public Prosecutions)

File Number(s): 2022/192826

JUDGMENT – EX TEMPORE REVISED

Introduction

On 18 December 2019 I sentenced Greg Merritt to a term of 5 years, 3 months imprisonment for a number of serious offences. In that judgment: R v Merritt [2019] NSWDC 713, I noted that Merritt had when growing up none of the advantages that most in the community expect. I gave reasons why his background meant that he would not be sentenced in the same manner as a person who did not have those disadvantages. I found that his background had significantly impacted on his moral culpability and that it helped explained why he had spent a considerable amount of time in juvenile detention and adult gaols.
When I sentenced him, I indicated that he was a prime candidate for a program such as the Compulsory Drug Treatment Program. But those programs are not available to people who commit offences in Wollongong and the South Coast. I was cautious about his prospects for the future because his background had left a mark and compromised his capacity to mature and learn from experience.
After serving 6 months he was released to parole on 18 December 2021. He moved, with his partner, out of Wollongong to the South Coast. He had accommodation and was able to find work and get settled. His partner became pregnant.
Merritt received some support from his family, but the material before me also indicates that methylamphetamine use by others in the family and other stresses led to him coming back to the Wollongong area, where he did not have any stable influences.
There were a number of other stresses in his life but, instead of seeking the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Merritt

Details

AGLC: R v Merritt [2023] NSWDC 339
Case: [2023] NSWDC 339
Decision Date: 05 April 2023

CaseChat Overview and Summary

In the case of R v Merritt, the appellant was convicted of stalking and intimidation, committed against a victim in the presence of others at the victim's home, while in company and using a weapon. The court was required to determine an appropriate sentence, considering both aggravating and mitigating factors, and whether the sentence should include probation or parole, given the offence was committed while the appellant was on parole.

The court identified several aggravating factors, including the commission of the offence in the company of others at the victim's home and the use of a weapon. However, the court also recognised mitigating factors such as the appellant's early guilty plea. The court further considered the appellant's background, including their Aboriginal heritage, age, drug addiction, and the surrender of the weapon. The court applied section 15 of the Children (Criminal Procedure) Act 1987 (NSW), which allowed for the consideration of special circumstances relevant to the appellant's background.

In reaching its decision, the court carefully weighed the aggravating and mitigating factors, the objective seriousness of the offence, and the special circumstances. The court concluded that a sentence of imprisonment was necessary, but given the mitigating factors and the appellant's background, a non-parole period of one year was appropriate. The final order was a sentence of imprisonment for two years, with a non-parole period of one year.

Orders

Orders of the court

Sentence of imprisonment of 2 years with a non-parole period of 1 year

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Merritt [2023] NSWDC 339
Hearing dates:	05 April 2023
Date of orders:	05 April 2023
Decision date:	05 April 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence of imprisonment of 2 years with a non-parole period of 1 year
Catchwords:	CRIME — Violent offences — Stalking or intimidation SENTENCING — Aggravating factors — Home of victim or any other person — In company — Use of weapon SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Probation and parole — Offence committed whilst on parole SENTENCING — Relevant factors on sentence — Objective seriousness— Aboriginal offenders— Age of offender — Drug addiction — Surrender of weapon — Special circumstances SENTENCING PROCEDURE — Application of s 15 Children (Criminal Procedure) Act 1987 (NSW)
Legislation Cited:	Children (Criminal Procedure) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Merritt [2019] NSWDC 713 R v Moradian [2011] NSWDC 130
Category:	Sentence
Parties:	Greg Merritt (the offender) Director of Public Prosecutions (the Crown)
Representation:	Solicitors: N Ashby Legal Aid (for the offender) L McGonigal (for the Director of Public Prosecutions)
File Number(s):	2022/192826