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

1. 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.

2. 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.

3. 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.

4. 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.

5. There were a number of other stresses in his life but, instead of seeking the assistance of his parole officer, instead of thinking through the consequences of his actions, instead of thinking of the fact that he had a baby due, he was out late at night. He had obtained a firearm and by his own admission he was using methylamphetamine. He committed the offence which now brings him before the Court – Use an Offensive Weapon with Intent to commit the indictable offence of Intimidation while in company: s 33B(2) Crimes Act 1900 (NSW).

Agreed Facts

6. There are agreed facts before the Court and the entire offence was recorded on CCTV.

7. At 2am on 28 June 2022 the victims were at their home in southern Wollongong. There was a knock at the door. When one of the homeowners opened the door, he saw a young woman, whom he knew. She said things indicating that she wanted entry to the premises.

8. She then walked away, and Merritt came from behind a pillar. He yelled, “Open the fucking door” and pulled on the glass door. He pointed a gun at those inside the house.

9. A lady in the house closed the curtain. Another victim says he saw the offender “pumping” the gun. The CCTV indicates that it was a shortened weapon wrapped in a towel. A “bang” was heard by the victims but that sound was the offender, in frustration, hitting the outside of the premises.

10. The male victim also indicates that two other people went to the premises and were “lurking” out of sight.

Objective seriousness

11. The key elements of the offence are the intimidation and being in company. The act of intimidation was reinforced by the use of the offensive weapon. There were four people present, although only two were directly involved, the weight of those numbers was available to be deployed. Of particular concern is the use of a firearm to intimidate, although it was not fired.

12. The purpose or motivation for the offending has not been explained. The episode was of short duration. But for anyone to be confronted with a firearm, not knowing whether it will be used in their own home would cause considerable distress, not just to them but to members of the community.

13. To use a firearm, to use of firearm of this type, to intimidate others, is a crime of particular seriousness. This is reflected in the maximum penalty of 15 years, which is one guide to the exercise of my sentencing discretion.

14. So serious was the offence that it is conceded that only a custodial penalty could be imposed.

Other matters

15. The sentence is aggravated by the fact that it was committed while Merritt was on parole and subject to his promise to be of good behaviour. The commission of this offence and the antecedent possession of the firearm and admitted drug use breached his parole.

16. The parole documents however indicate that it was the commission of this offence that led to the formal breach.

17. Offenders on parole have to understand that if they are honest and upfront with their parole officers about drug use or other stresses in their life generally, they will not be breached but given assistance. The offender has not learnt yet, and is not mature enough yet, to understand what many in the community think is fairly logical, rational and consequential thinking.

Surrender of the firearm

18. To his credit, although Merritt made no admissions, he later spoke to police and provided them with information that led to the recovery of what, on balance, I am prepared to accept was the firearm he used.

19. That assistance had nothing to do with cases against the co‑accused, but it did remove from the community a weapon which would have been used to commit further offences. The police opine, it was a firearm which posed a risk to the community by virtue of its potential criminal use and had it not been for Merritt’s disclosure, would not otherwise have been recovered.

20. I have note and apply the provisions of s 23 Crimes (Sentencing Procedure) Act 1999 (NSW), to reduce the otherwise appropriate sentence. I note particularly s 23(3). Often reduction that is done by way of percentage, but today I will, for transparency’s sake, specifying an amount in months.

21. I do that that for practical reasons. Obviously, there would have been no information offered had the offender not found himself in need of something to offer to secure a reduction of sentence: R v Moradian [2011] NSWDC 130 at [34] to [45]. There is nothing before me to indicate the surrender was for remorseful reasons. And there is no indication in the other material before me of any remorse. The offender has trouble caring for himself, let alone concerning himself about others.

22. The material in relation to the firearm will be sealed in an envelope and kept with the court papers.

The case for the offender

23. Merritt turned 18 on 14 May 2016. His nan who helped raise him passed in September 2017. He went to gaol in September 2018. He was released in December 2018, and back in gaol again in July 2022. His child was born in November 2022, while he was in custody.

24. In 2019 he told a Legal AId social worker, Ms Jelen, that he did not want to be locked up all the time. But he is locked up again. It would appear that the return to Wollongong, multiple stresses, including debts, resort to ice and crime took precedence over his responsibilities to his partner and child. He was effectively homeless.

25. Ms Jelen’s report, which I had received in the earlier sentence matter, was updated by Ms Sears. She indicates that Merritt is not a psychologically resilient man. He accepts that Wollongong is not a safe place for him because when there, he associates with friends who pull him back into drug use.

26. The report sets out the stresses that were operating on him at the time. She notes that if he is to turn his life around, he needs a plan, he needs something to work towards.

27. His period of 6 months on parole would, in most cases, not be regarded as significant. But for Merritt that 6-month period without offending, until these matters, and the matters that immediately preceded is, in his short life, of significance.

28. He has learnt that there are things he can do in the community, which will help him avoid committing crime and keep him out of gaol. Those matters need to be reinforced. As Ms Sears notes at par 11(iii):

“He has demonstrated positive steps in the short term. It is hoped with access to support services he will maintain this change long term.”

29. She suggests he would benefit from serving his sentence in the community. That cannot happen. There must be a non-parole period.

30. She recommends that he be assisted in finding accommodation on the South Coast where he has family support and can get the benefit of attending the Katungul Aboriginal Corporation Regional Health and Community Service for drug and alcohol support in a culturally appropriate manner.

31. Merritt had work in Batemans Bay and if that work is still available to him, it will stand him in good stead, because he has responsibilities; his partner’s children and his new child. His partner needs him. He has something to work towards.

Submissions

32. The submissions from both defence and prosecution counsel took me to appropriate authorities, particularly in relation to matters relating to my consideration of the seriousness of the matter. I was taken to R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. Both apply here.

Synthesis

33. The prosecution submit that without intensive supervision on release Merritt’s prospects are poor – I agree. But the nature of the offence, the use of the firearm, and the fact that he is serving the balance of parole preclude any other option than imprisonment.

34. The material before me as to Merritt’s subjective case and need for extensive supervision provides a solid basis for a finding of special circumstances.

35. I have considered the submissions in relation to when the sentence should start. He went into custody on 1 July 2022. I propose, taking care not to double count the parole breach, which was a matter of aggravation, to commence the sentence on 1 September 2022.

36. He pleaded guilty in the Local Court; the otherwise appropriate sentence will be reduced by 25% for its utilitarian value: s 25D Crimes (Sentencing Procedure) Act.

37. Although sentencing is not meant to be strictly mathematical, for transparency’s sake, I will set out my approach. Had it not been for his plea of guilty and assistance there would have been a sentence of 3 years imprisonment. The 25% reduction results in a notional head sentence of 2 years and 3 months. His community service in alerting police as to where the firearm could be recovered requires a reduction in sentence. I will reduce the sentence by 3 months, leaving a sentence of 2 years imprisonment.

38. Merritt’s need for as much supervision and assistance as is possible on release, and the accumulation of the sentence on partial balance of parole requires a finding of special circumstances.

39. The application of the authorities relating to reduction of sentence and recognition of lesser moral culpability, particularly Bugmy v The Queen, do not lose their importance despite repeated offending. Their application requires a degree of leniency in this matter. The sentence of 2 years which now results will have a non-parole period of 1 year and a parole period of 1 year.

Orders

40. Taking into account sections 25D and s 23 Crimes (Sentencing Procedure) Act and my finding of special circumstances, there will be a sentence of a non‑parole period of 1 year to date from 1 September 2022, making Merritt eligible for release to parole on 31 August 2023. There will a parole period of 1 year from that date. The sentence will expire on to 31 August 2024.

Related issues

41. Objection was taken to a portion of the report of Ms Jelen, which the prosecution submitted had breached s 15 Children (Criminal Procedure) Act 1987 (NSW) by revealing offences committed while a child. That section applies in its terms and requires certain facts apply.

42. The material before me indicates that the offender had been in juvenile detention. The reason for a person being in juvenile detention may be inadmissible if the material revealed fits within the strict terms of s 15 but those matters were not set out in the report.

43. Accordingly, I find that the report was:

1. Not inadmissible because of the provisions of s 15, given that it has certain specific requirements; and

2. The fact that a person was in once juvenile detention is not something which is inadmissible on sentence.

44. The other issue is that the prosecution seek a temporary suppression order for the CCTV, tendered as Exhibit B, as its general release could prejudice the upcoming trial of the co-accused.

45. Rather than make a suppression order, I direct that Exhibit B is to be returned to the Director of Public Prosecutions. That is the easiest way, no one can get access to it without their approval until after the forthcoming trial.

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Decision last updated: 29 August 2023