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Supreme Court 4 December 2002

REGINA v. MERRITT

[2002] NSWSC 1159

Homicide
MURDER THREE COUNTS OFFENDER'S INFANT CHILDREN WORST CLASS OF CASE HEINOUSNESS EXTREME LEVEL OF CULPABILITY

Citation: Regina v Merritt [2002] NSWSC 1159
Court: Supreme Court of New South Wales (Criminal Division)
Date: 4 December 2002
Judge(s): Greg James J

Background

The offender pleaded guilty to three counts of murder. Each victim was one of his natural children by a different partner. The children, aged six years, eleven months, and eleven weeks respectively, were staying with the offender at his mother's home for Fathers' Day weekend.

On the night of 1 to 2 September 2001, after consuming alcohol and sending a series of farewell text messages to family members, the offender suffocated all three children in their beds. He then attended Parramatta Police Station and told officers he had "put his kids to sleep permanently." Post-mortem examinations confirmed mechanical asphyxia in two of the children; the cause of death in the youngest could not be definitively determined, though the court accepted that all three had been suffocated.

Those who knew the offender described him as having a good and loving relationship with his children before that night, with no history of aggression or abuse toward them. The sentencing proceedings involved extensive psychiatric evidence, victims' impact statements from the mothers of the deceased, and detailed written submissions from both the Crown and the defence.

  • Whether the objective culpability of the offences was so extreme as to require the maximum penalty of life imprisonment under the applicable sentencing principles
  • Whether the offender's subjective circumstances, including his age (30 at the time of the offences), prospects of rehabilitation, and any mitigating factors, were capable of displacing the prima facie case for life sentences
  • How the totality principle and the principles in Pearce (1998) 194 CLR 610 applied when sentencing for three concurrent murders
  • Whether the court's acknowledged preference for retaining the ability to fix a non-parole period could properly lead it to impose determinate sentences rather than life sentences

Decision

Greg James J applied a two-stage process drawn from the Court of Criminal Appeal's decision in Miles [2002] NSWCCA 276. At the first stage, the court must determine whether the objective facts disclose a level of culpability so extreme as to warrant the maximum penalty. At the second stage, the court must assess whether subjective factors are capable of displacing that prima facie need for the maximum.

At the first stage, the court found that the murders fell within the worst class of case. The victims were entirely defenceless infants and a young child in the care and trust of their father. The heinousness of three deliberate killings of the offender's own children, carried out in circumstances of complete vulnerability, placed the offending at the extreme end of culpability.

At the second stage, the court found the subjective circumstances were wholly overwhelmed by the objective gravity of the crimes. The court acknowledged the offender's youth, his prior good relationship with the children, the absence of a significant criminal history, and the difficulty of serving life sentences under strict protection conditions. However, applying the principle from Miles, those factors could not displace the requirement for the maximum penalty.

The court expressly acknowledged that it retained a discretion, and that it would be an error to avoid imposing an otherwise required life sentence merely to preserve the ability to set a non-parole period. Noting that even lengthy determinate sentences would approach the period of custody a life sentence would involve, the court imposed life imprisonment on each count.

Orders Made

  • On each of the three counts of murder, the offender was sentenced to life imprisonment, to date from 2 September 2001.

Key Takeaways

  • The Supreme Court applied the two-stage Miles framework: first, assessing whether objective culpability is extreme enough to warrant the maximum penalty; second, assessing whether subjective factors can displace that prima facie requirement.
  • Where the appalling objective circumstances of a murder completely overwhelm all subjective considerations, including prospects of rehabilitation and the offender's youth, life imprisonment is required rather than discretionary.
  • A sentencing court cannot properly decline to impose a life sentence, where principle and law otherwise require it, merely to preserve the ability to set a non-parole period.
  • Guilty pleas and the absence of a significant prior criminal history do not automatically operate as effective mitigating factors when the objective gravity of the offending is at the extreme end of the scale.
  • The totality principle and the Pearce requirements for multiple offences do not operate to reduce sentences below what each individual offence demands when that offence warrants the maximum penalty.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)

Cases:
- Miles [2002] NSWCCA 276
- Harris (2000) 50 NSWLR 409
- Pearce (1998) 194 CLR 610
- Veen (No. 1) (1978-79) 143 CLR 458
- Veen (No. 2) (1986) 161 CLR 158
- Previtera (1997) 94 A Crim R 76
- Petrinovic [1999] NSWSC 1131
- Rose (CCA, unreported, 11 October 1999)
- Ibbs (1987) 163 CLR 447
- Twala (CCA, unreported, 1 November 1994)
- Veleski (Dunford J, unreported, 26 September 1997)
- Park (Sperling J, unreported, 3 August 2000)
- Cikos (Dunford J, unreported, 9 February 2002)
- Cheatham (Grove J, unreported, 16 July 2001)
- Garforth (CCA, unreported, 23 May 1994)