R v Merritt

Case [2000] NSWCCA 365


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…

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R v Merritt [2000] NSWCCA 365
Case
[2000] NSWCCA 365
Decision Date

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.

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Decision

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Ratio Decidendi

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