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Supreme Court 23 May 2016

R v Merrick (No 5)

[2016] NSWSC 661

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MANSLAUGHTER VERDICT OF GUILTY AFTER TRIAL SINGLE BLOW OCCASIONING DEATH DOMESTIC VIOLENCE

Citation: R v Merrick (No 5) [2016] NSWSC 661
Court: Supreme Court of NSW
Date: 23 May 2016
Judge(s): Wilson J

Background

The offender, Ross Merrick, was tried for the murder of his partner, Marika Ninness, who died on 21 December 2013 after being struck in a car park outside Greenhills Shopping Centre in East Maitland on the night of 7 December 2013. The offender maintained throughout trial that any physical contact was accidental. The jury rejected that account and returned a verdict of not guilty of murder but guilty of the alternative charge of manslaughter.

The relationship between the offender and Ms Ninness had been volatile and marked by prior violence. The offender had assaulted Ms Ninness on 27 October 2013, propelling her head into a wall with sufficient force to penetrate the cladding. In the days before her death, Ms Ninness had told friends she feared for her life and wanted to leave the offender, but was too frightened to do so.

On the night of the offence, the couple argued at a hotel before leaving separately. A sequence of hostile text messages followed. The offender then located Ms Ninness in the car park of a nearby shopping centre and struck her a single blow to the head. She never regained meaningful function and died two weeks later. This judgment addresses sentencing for the manslaughter conviction.

  • What facts, consistent with the jury's verdict, could be found proved beyond reasonable doubt for sentencing purposes?
  • What weight, if any, should be given to victim impact statements in a manslaughter sentencing, and what purposes do they serve?
  • What relevance, if any, did the offender's conditional pre-trial offer to plead guilty to manslaughter have to the sentencing exercise?
  • What was the appropriate sentence, having regard to the objective seriousness of the offence, the domestic violence context, general deterrence, and the offender's personal circumstances?

Decision

Wilson J found, consistently with the jury's verdict, that the offender had deliberately struck Ms Ninness a single blow to the head that was both unlawful and dangerous, and that this blow caused her death. The offender's own account was rejected as evasive, implausible, and indicative of mendacity. The prior assault of 27 October 2013 was relevant not to punishment for that separate event, but to what it revealed about the offender's character and to the warning it should have given him about the harm he could cause to a woman significantly smaller and weaker than himself.

On the question of victim impact statements, the court confirmed that such statements are not read to enhance a sentence beyond what is otherwise appropriate, but that they are relevant to the court's understanding of the full impact of the offending and to the expression of denunciation. The statements from members of Ms Ninness's family described profound and ongoing grief, and the court acknowledged their significance within the proper limits.

The offender's pre-trial conditional offer to plead guilty to manslaughter was considered in the sentencing exercise. Because the offer was conditional and not a genuine plea, it did not attract the same discount as an unconditional guilty plea. However, the court acknowledged that the absence of remorse and the decision to put the Crown to proof at trial were relevant factors in assessing the utilitarian value of any concession.

Wilson J identified the domestic violence context as a significant aggravating feature, noting that the offence occurred in the context of a relationship characterised by prior controlling and violent behaviour. General deterrence was accorded considerable weight given that domestic violence manslaughter demands a clear sentencing response from the courts.

Orders Made

• Guilty of manslaughter: 6 years - NPP 3.5 years
• Guilty of manslaughter: 5.5 years - NPP 3 years

Key Takeaways

  • In manslaughter sentencing, facts adverse to the offender must be proved beyond reasonable doubt, consistent with the High Court's direction in The Queen v Olbrich (1999) 199 CLR 270.
  • Victim impact statements in manslaughter proceedings do not operate to increase a sentence beyond its otherwise appropriate level, but they are properly received to inform the court's understanding of the harm caused and to serve the function of denunciation.
  • A conditional pre-trial offer to plead guilty does not attract the same sentencing discount as an unqualified guilty plea; its weight depends on whether it represented a genuine and unconditional acceptance of criminal responsibility.
  • The domestic violence context of an unlawful and dangerous act manslaughter constitutes a significant aggravating feature, reflecting the breach of trust inherent in intimate partner violence and the prior warnings available to the offender about the harm he could inflict.
  • General deterrence carries substantial weight in sentencing for domestic violence manslaughter, and prior violence within the relationship is relevant to the assessment of the offender's character even where that prior conduct is not itself the subject of the sentence being imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Ernest Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
- R v Lavender [2005] HCA 37; (2005) 222 CLR 67
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v Previtera (1997) 94 A Crim R 76
- R v Thompson; R v Houlton [2000] NSWCCA 309; (2002) 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528
- R v Loveridge [2014] NSWCCA 120
- Field v R [2015] NSWCCA 332
- Villalon v R [2015] NSWCCA 229
- Morton v R [2014] NSWCCA 8
- R v AB [2011] NSWCCA 229
- R v Carroll; Carroll v R [2010] NSWCCA 55
- Hopley v R [2008] NSWCCA 105
- R v Cardoso (2003) 137 A Crim R 535
- R v Dodd (1991) 57 A Crim R 349
- R v Fidow [2004] NSWCCA 172
- R v Johnson [2003] NSWCCA 129
- R v Oinonen [1999] NSWCCA 310
- R v Bryce (No 5) [2014] NSWSC 1184