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Court of Criminal Appeal 13 September 2000

R v Merritt

[2000] NSWCCA 365

Assault & violenceTheft & property
CRIMINAL LAW APPEALS CROWN APPEAL AGAINST SENTENCE INADEQUACY SECOND TRIAL

Citation: R v Merritt [2000] NSWCCA 365
Court: NSW Court of Criminal Appeal
Date: 13 September 2000
Judge(s): Beazley JA, O'Keefe J, Smart AJ

Background

The offender was convicted at a second trial in the District Court of two offences committed on 13 September 1995: armed robbery with wounding, and larceny of a motor vehicle. The offences arose from an attempted armed robbery at a hospital credit union, during which a security guard was shot in the lower abdomen with a sawn-off rifle carried by one of the offender's accomplices.

A first trial in 1997 resulted in convictions, but those convictions were overturned by the Court of Criminal Appeal in 1999. At the second trial before Luland DCJ, the offender was again convicted and sentenced to a minimum term of nine years with an additional term of five years for the armed robbery with wounding, and a concurrent fixed term of twelve months for the vehicle theft.

The Crown appealed both sentences as inadequate. The offender had a lengthy and serious criminal history, including multiple prior convictions for armed robbery and related offences, and displayed no remorse at sentencing.

  • Whether the sentences imposed by Luland DCJ were manifestly inadequate, warranting appellate intervention under the principles in House v The King.
  • Whether a second trial judge is constrained by the sentence imposed after the first trial, and if so, to what extent.
  • Whether Luland DCJ misapplied the principles established in R v Gilmore and R v Bedford in treating the first trial sentence as a ceiling on the sentence available at the second trial.

Decision

The Court found that Luland DCJ had misapplied the principles from R v Gilmore and R v Bedford. Those cases establish that where a retrial follows a successful appeal by an accused, the second trial judge should not impose a more severe sentence unless there are fresh factors justifying the increase. However, the Court clarified that this principle does not operate as a rigid ceiling. Where the first sentence was itself manifestly inadequate, the second sentencing judge retains the capacity to impose an appropriate sentence, even if greater than that initially imposed.

The Court accepted that the armed robbery with wounding offence fell well towards the upper end of seriousness for offences of its type, a characterisation the Court of Criminal Appeal had itself made on the first appeal. The offender had an extensive prior record of serious violent and property offending, had shown no remorse, and had actively rejected the authority of the legal system. No meaningful mitigating factors were present.

Taking into account the gravity of the offence, the absence of mitigating circumstances, the maximum penalty of 25 years, and the purposes of retribution, general deterrence, and community protection, the Court determined that a sentence of 18 years with a non-parole period of 13 and a half years was appropriate. The sentence for the larceny of the motor vehicle was found to be within the proper range and required no intervention.

Orders Made

  • Appeal against sentence for the larceny offence: dismissed.
  • Appeal against sentence for armed robbery with wounding: allowed; sentence quashed.
  • In lieu of the quashed sentence, a term of 18 years imprisonment imposed, commencing 2 June 1999, with a non-parole period of 13 and a half years ending 1 December 2012, at which date the offender becomes eligible for release on parole.

Key Takeaways

  • The principle in R v Gilmore and R v Bedford, that a second trial judge should not impose a heavier sentence without fresh justifying factors, does not operate as an absolute ceiling where the first sentence was itself inadequate.
  • A sentencing court's error in treating a prior inadequate sentence as a fixed upper limit constitutes an error of principle that opens the sentence to appellate review under House v The King.
  • Antecedent criminal history is relevant at sentencing not merely as an aggravating feature in isolation, but as evidence of a continuing attitude of disobedience of the law, which bears on moral culpability and the need for deterrence and community protection.
  • In dismissing the larceny appeal, the Court applied the totality principle and noted that, because the vehicle was stolen for the purpose of committing the armed robbery, concurrent service of the shorter sentence remained appropriate.
  • The Court of Criminal Appeal confirmed that where an offence is characterised as falling towards the upper end of seriousness for its type, a sentence substantially below the statutory maximum will not necessarily reflect that gravity adequately when combined with a serious antecedent history and absence of remorse.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1968 (UK), s 8(4) and Sch 2, par 2(1)

Cases
- 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