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Court of Criminal Appeal 5 November 2007

R v Merrin (No. 2)

[2007] NSWCCA 310

Other
CRIMINAL LAW SENTENCE CROWN APPEAL

Citation: R v Merrin (No. 2) [2007] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 5 November 2007
Judge(s): Giles JA, Howie J, Fullerton J

Background

This matter arose from a Crown appeal against sentences originally imposed in the District Court by Acting Judge Moore. The Court of Criminal Appeal heard the Crown appeal on 22 August 2007 and delivered judgment on 28 August 2007, allowing the appeal and substituting new sentences for the respondent across multiple counts.

After that judgment was pronounced, the Court identified that the individual sentences it had imposed, and the orders specifying their commencement dates, did not produce the aggregate result the Court had intended. Some sentences had also been structured as fixed terms, which breached section 45(1) of the Crimes (Sentencing Procedure) Act 1999. A fixed term is a sentence with no non-parole period and no balance of term, and the Act restricts when such sentences can be imposed.

The Court therefore reopened the matter to correct the error. Both parties were notified of the Court's intention to resentence, and neither was asked to make further submissions.

  • Whether the sentences pronounced on 28 August 2007 achieved the Court's stated intention of an aggregate sentence of 7 years with a non-parole period of 4 years, commencing 12 December 2005.
  • Whether those sentences had been structured in breach of section 45(1) of the Crimes (Sentencing Procedure) Act 1999, which limits the circumstances in which a fixed term may be imposed.
  • Whether the Court had power to reopen the matter and impose corrected sentences.

Decision

The Court found that the sentences imposed on 28 August 2007 failed to give effect to its own intended outcome. The cascading commencement dates assigned to the individual counts did not produce a total sentence of 7 years with a 4-year non-parole period. Additionally, at least some of the sentences had been imposed as fixed terms, in breach of section 45(1).

The Court reopened the matter on its own initiative to rectify these errors. It revoked all sentences imposed on 28 August 2007 and replaced them with a fresh set of sentences across five sentencing groupings, each with a specified non-parole period, balance of term, and commencement date.

The revised structure achieves the intended aggregate: the total sentence runs from 12 December 2005, and the respondent's earliest eligible release to parole falls on 11 December 2009, reflecting a 4-year non-parole period.

Orders Made

The sentences imposed on 28 August 2007 were revoked and replaced as follows:

  • Counts 2, 3 and 4: Non-parole period of 7 months, balance of term of 4 months, commencing 12 December 2005; non-parole period expires 11 July 2006.
  • Counts 5 and 6: Non-parole period of 10 months, balance of term of 6 months, commencing 12 March 2006; non-parole period expires 11 January 2007.
  • Count 1 (and Form 1 matters): Non-parole period of 14 months, balance of term of 8 months, commencing 12 July 2006; non-parole period expires 11 September 2007.
  • Counts 8 and 9: Non-parole period of 15 months, balance of term of 8 months, commencing 12 September 2007; non-parole period expires 11 December 2008.
  • Count 7 (and Form 1 matters): Non-parole period of 18 months, balance of term of 3 years, commencing 12 June 2008; non-parole period expires 11 December 2009, being the earliest date of eligibility for release to parole.

Key Takeaways

  • The Court of Criminal Appeal has power to reopen a sentencing matter after judgment to correct sentences that fail to achieve the court's stated intention.
  • Under section 45(1) of the Crimes (Sentencing Procedure) Act 1999, fixed term sentences (those with no non-parole period and no balance of term) can only be imposed in limited circumstances; departing from that structure without statutory authority is an error on the face of the orders.
  • Where multiple sentences are imposed with cascading commencement dates, care is required to verify that the aggregate result, including the total head sentence and non-parole period, matches the intended outcome.
  • Reopening in this instance proceeded without further submissions, reflecting that the correction was technical in nature and did not alter the Court's underlying sentencing intentions.
  • No change was made to the intended aggregate: 7 years imprisonment with a 4-year non-parole period commencing 12 December 2005.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(1)

Cases cited: None cited in the judgment.