AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
30
Court of Criminal Appeal 28 August 2007

R v Merrin

[2007] NSWCCA 255

Also reported as (2007) 174 A Crim R 100
Theft & property
CRIMINAL LAW SENTENCE CROWN APPEAL BREAK, ENTER AND STEAL OFFENCES CONCURRENT SENTENCES STANDARD NON

Citation: R v Merrin [2007] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 28 August 2007
Judges: Giles JA, Howie J, Fullerton J

Background

The respondent was a young man who, between late 2003 and October 2005, committed or participated in 16 offences of break, enter and steal on domestic premises. Many offences were aggravated: they were committed in company, in homes where people were present and sleeping, and several occurred while the respondent was on parole for a similar offence. The most serious charges under s 112(2) of the Crimes Act 1900 carried a maximum penalty of 20 years imprisonment.

In June 2007, Acting Judge Moore sentenced the respondent in the District Court to an overall term comprising a non-parole period of 1 year and 9 months and a balance of term of 2 years and 9 months, with all sentences backdated to December 2005. The practical effect was that the respondent was due for release to parole in September 2007, less than three months after being sentenced.

The Crown appealed to the Court of Criminal Appeal, arguing the sentences were manifestly inadequate and infected by fundamental errors of principle.

  • Whether the overall sentence was manifestly inadequate for 16 offences of break, enter and steal, many of which were aggravated
  • Whether it was appropriate to impose concurrent sentences across multiple offences involving repeat, serial offending
  • Whether the sentencing judge erred by failing to take the standard non-parole period into account
  • Whether backdating all sentences to the date of the respondent's return to custody was appropriate in the circumstances
  • How to balance the interests of a youthful offender against the public interest in adequate sentences, particularly where release was imminent

Decision

Howie J, with whom Giles JA and Fullerton J agreed, held that the sentence was manifestly inadequate "to a very substantial degree" and that the sentencing remarks contained patent errors of principle that materially affected the judge's discretion. Despite the respondent's imminent release, the Court held it was bound to intervene in the public interest. The Court acknowledged the real disappointment this would cause the respondent, whose expectations of early release had been raised by an erroneous sentencing exercise.

A central error identified was the imposition of entirely concurrent sentences across what was, in substance, a series of separate criminal episodes committed over two years. The Court referred to the principle in Pearce v The Queen that offences occurring on different occasions ordinarily attract some degree of cumulation, reflecting the fact that each offence represents a distinct breach. Running all sentences concurrently failed to reflect the seriousness and serial nature of the respondent's conduct.

The sentencing judge also failed to engage with the standard non-parole period provisions under s 54B of the Crimes (Sentencing Procedure) Act 1999. The Court noted that while the respondent's youth and other subjective factors were relevant considerations, these did not justify the degree of leniency imposed. The failure to address the standard non-parole period at all was a distinct error, separate from the question of manifest inadequacy.

On the question of backdating, Howie J observed there were sound reasons not to backdate sentences in this case, including that the respondent had immediately re-entered a drug-using lifestyle on release from his earlier sentence, which itself constituted a parole breach. However, because the Crown had not formally challenged the backdating on appeal, the Court extended the respondent the benefit of that aspect of the original sentencing.

Orders Made

  • The appeal was allowed
  • Sentences imposed by Acting Judge Moore were quashed
  • In substitution, the following sentences were imposed:
  • Counts 2, 3 and 4: Fixed terms of 7 months each, from 12 December 2005, expiring 11 July 2006
  • Count 5: Fixed term of 10 months from 12 March 2006, expiring 11 January 2007
  • Count 1 (Form 1): Non-parole period of 14 months from 12 July 2006, expiring 11 September 2007, with a balance of term of 8 months
  • Counts 8 and 9: Fixed terms of 15 months each, commencing 12 June 2008, expiring 11 September 2009
  • Count 7 (Form 1): Non-parole period of 18 months from 12 June 2008, with a balance of term of 2 years and 5 months
  • The respondent is eligible for release to parole on 11 December 2009
  • Overall sentence: 7 years with a non-parole period of 4 years, dated from 12 December 2005

Key Takeaways

  • Concurrent sentences across multiple offences committed on separate occasions will ordinarily be inappropriate; the principle established in Pearce v The Queen requires that separate criminal episodes attract some degree of cumulation to reflect the distinct nature of each offence.
  • A sentencing court's failure to engage with the standard non-parole period under s 54B of the Crimes (Sentencing Procedure) Act 1999 constitutes an independent error of principle, distinct from a finding of manifest inadequacy.
  • The Court of Criminal Appeal confirmed it will intervene in Crown appeals even where a respondent's release is imminent, provided the sentence is sufficiently erroneous to warrant intervention in the public interest.
  • Where a Crown appeal succeeds, the appellate court will moderate the replacement sentences to account for the respondent's raised expectations of release, the nature of a Crown appeal, and proportionality with co-offenders.
  • Youthful age at the time of offending is a relevant mitigating factor but does not, of itself, justify a departure from sentencing principles where the offending is serious, serial, and aggravated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B

Cases:
- R v Harrison [2001] NSWCCA 79
- R v MAK and MSK [2006] NSWCCA 381, (2006) 167 A Crim R 159
- Pearce v The Queen (1998) 194 CLR 610
- R v Harris [2007] NSWCCA 130
- Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- R v Wall [2002] NSWCCA 42
- Markarian v The Queen (2005) 79 ALJR 1048
- R v Hammoud (2000) 118 A Crim R 66
- Johnson v The Queen (2004) 78 ALJR 616
- Marshall v R [2007] NSWCCA 24
- R v Mostyn (2004) 145 A Crim R 304
- R v Way (2004) 60 NSWLR 168
- R v Cunningham [2006] NSWCCA 176