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R v Merritt

R v Merritt

Case [2000] NSWCCA 365 13 September 2000

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CITATION: R v Merritt [2000] NSWCCA 365

FILE NUMBER(S): CCA 60239/00

HEARING DATE(S): 9 August 2000

JUDGMENT DATE:
13 September 2000

PARTIES :

Regina v Noel Joseph Merritt

JUDGMENT OF: Beazley JA at 1; O'Keefe J at 2; Smart AJ at 45

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/61/0071

LOWER COURT JUDICIAL
OFFICER : Luland DCJ

COUNSEL : R D Cogswell SC and G Rich - For Crown
M G Pincott, solicitor - For Appellant

SOLICITORS: S E O'Connor - For Crown
Sydney Regional Aboriginal Corporation Legal Service - For Appellant

CATCHWORDS: Criminal Law - Appeals - Crown appeal against sentence - inadequacy - Second trial - Constraint of second trial judge by sentence imposed after first trial - Misapplication of principles in R v Gilmore and R v Bedford

LEGISLATION CITED: Criminal Appeal Act 1968 (UK) s.8(4) and Sch.2 par 2(1)

CASES CITED:
R. v Gilmore (1979) 1 ACR 416
R v Bedford (1986) 5 NSWLR 711
House v The King (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko Walsend Limited (1985-86) 162 CLR 24
R v Garrett (1978) 18 SASR 308
R v Henry (1999) 46 NSWLR 346
Veen v The Queen (1987-88) 164 CLR 465

DECISION: Appeal against sentence for offence of larceny dismissed.; Appeal against sentence for the offence of armed robbery with wounding - allowed; sentence quashed; In lieu of sentence imposed for armed robbery with wounding a sentence of imprisonment for 18 years commencing on 2 June, 1999 with a non-parole period of 13-1/2 years commencing on that date and ending on 1 December, 2012.

IN THE COURT OF
CRIMINAL APPEAL
NO: 60239 of 2000

BEAZLEY JA

O’KEEFE J
SMART AJ

Date: 13 September 2000

REGINA v NOEL JOSEPH MERRITT

JUDGMENT

1 BEAZLEY JA: I agree with O’Keefe J 2 O’KEEFE J: This is an appeal by the Crown against two sentences of imprisonment imposed on Noel Joseph Merritt (the prisoner) by Luland DCJ on 24 March, 2000. The ground of appeal is that the two sentences are inadequate. 3 On 16 March 2000 the prisoner was convicted of two offences, namely:

1. On 13 September, 1995 being armed with an offensive weapon, namely a sawn off rifle, he assaulted Robert Leggett with intent to rob him, and at the time of the assault wounded him (the first offence);
2. On or about 13 September, 1995 he stole a motor vehicle (second offence).

4 On 24 March, 2000 Luland DCJ sentenced him to a minimum term of nine years to commence on 2 June, 1999 and expire on 1 June, 2008 and an additional term of five years to commence on 2 June, 2008 and expire on 1 June, 2013 in respect of the first offence and a fixed term of twelve months to commence on 2 June, 1999 in respect of the second offence. The date of 2 June, 1999 was the day following the date of expiry of a minimum term of imprisonment which the prisoner…

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 [2000] NSWCCA 365
Case: [2000] NSWCCA 365
Decision Date: 13 September 2000

CaseChat Overview and Summary

In the case of R v Merritt, the Crown sought an appeal against the sentence imposed by the trial judge following the defendant's conviction at his second trial. The trial judge had sentenced the defendant to a term of imprisonment, which the Crown argued was inadequate given the gravity of the crime. The defendant's first trial had ended in an acquittal, and the second trial was necessitated by the Court of Criminal Appeal's decision to order a retrial. The issue before the court was whether the trial judge had erred in his sentencing by being constrained by the sentence imposed at the first trial, and whether he had misapplied the principles established in the cases of R v Gilmore and R v Bedford.

The court examined whether the trial judge had correctly applied the principles of sentencing, particularly in light of the defendant's criminal history and the nature of the offence. The Crown argued that the sentence was inadequate and did not reflect the seriousness of the crime. The court considered whether the trial judge had erred by being influenced by the sentence imposed at the first trial, and whether he had correctly applied the principles in R v Gilmore and R v Bedford, which set out the approach to sentencing in cases where a defendant is retried after an acquittal. The court found that the trial judge had indeed erred in his application of these principles, leading to an inadequate sentence.

In its decision, the court held that the sentence imposed by the trial judge was manifestly inadequate and that the trial judge had misapplied the sentencing principles. The court quashed the sentence and ordered a new sentencing hearing before a different judge. The Crown's appeal was thus upheld, and the matter was remitted for resentencing. The court emphasised the importance of applying the correct principles of sentencing, particularly in cases where a defendant is retried after an acquittal, and underscored the need for sentences to reflect the true seriousness of the offence.

Orders