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District Court 18 December 2019

R v Greg Merritt

[2019] NSWDC 713

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES VICTIM VINDICATION RETRIBUTION YOUNG OFFENDER

Citation: R v Greg Merritt [2019] NSWDC 713
Court: District Court of New South Wales
Date: 18 December 2019
Judge: Haesler SC DCJ

Background

The offender, a young Aboriginal Australian man born in May 1998, was sentenced for 13 offences committed in the Illawarra region in December 2018. The offences spanned armed robbery, taking and driving conveyances without consent, larceny, and stealing from a dwelling. He had spent most of his life in juvenile detention or adult custody and, by the court's assessment, had never meaningfully lived in the community.

The most serious offence involved the offender approaching a university student in a car park at the University of Wollongong, deploying a Taser to the student's lower abdomen on two separate occasions, and stealing the student's car keys, necklace, and vehicle. A co-offender participated in the series of crimes and was yet to be sentenced at the time of this judgment.

The offender pleaded guilty to all matters. He had been in custody continuously since his arrest on 19 December 2018.

  • How to structure an aggregate sentence across 13 separate offences so that the total is just and appropriate without becoming harsh or crushing
  • What weight to give the offender's profound background disadvantage, including childhood drug exposure, lack of education, and extensive institutionalisation, in the context of Bugmy v The Queen
  • Whether special circumstances existed under the Crimes (Administration of Sentencing) Act 1999 to justify a non-parole period that departs from the statutory ratio
  • How to balance the sentencing objectives of retribution, deterrence, community protection, and rehabilitation for a young offender who had never had the opportunity to live a normal community life

Decision

Haesler SC DCJ characterised the armed robbery as an offence of particular seriousness. The court observed that using a Taser to inflict pain on a victim for modest gain demonstrated a willingness to harm others, and that robbery while armed is not merely a property crime but a crime against individuals and against the community as a whole. The maximum penalty of 25 years imprisonment for that offence reflected the community's expectation that such conduct be met with meaningful punishment.

The court acknowledged, however, that simple accumulation of sentences across 13 matters would produce a harsh and crushing result that was not justified in all the circumstances. Applying the totality principle, the court structured the individual sentences so that the aggregate reflected the overall criminality rather than mechanically stacking each term.

The offender's background warranted significant consideration in moderating the sentence. His mother had serious drug problems, and the offender began using methamphetamine with her as a young teenager. He had never had a stable education, had been in and out of juvenile detention, and had not yet engaged with any drug rehabilitation program in adult custody. Consistent with the High Court's approach in Bugmy v The Queen, the court treated this history of profound disadvantage as a mitigating factor without diminishing the objective seriousness of the offences.

The court found special circumstances, making a substantial departure from the standard non-parole period ratio. The purpose was to maximise the supervised parole period so that the offender would have a genuine opportunity to engage with rehabilitation programs and transition into the community with support. A 25% discount was applied across all matters for the early guilty pleas.

Orders Made

  • Robbery while armed with dangerous weapon: 4 years and 1 month imprisonment
  • Take and drive conveyance without consent (VW Golf): 1 year and 1 month imprisonment, substantially concurrent with the first count
  • Take and drive conveyance without consent (Toyota Kluger): 1 year and 1 month imprisonment
  • Larceny from the Kluger: 1 year and 1 month imprisonment, substantially concurrent with the Kluger driving count
  • Being carried in a conveyance taken without consent (s 166 matters): 9 months imprisonment
  • Steal from dwelling (Thirroul): 1 year and 1 month imprisonment
  • Remaining larceny offences: 3 months imprisonment each, with substantial concurrence
  • Aggregate sentence: 5 years and 2 months imprisonment
  • Non-parole period: 3 years (reflecting a substantial finding of special circumstances)
  • Sentence commencing 19 December 2018; earliest parole eligibility 18 December 2021
  • Parole period of 2 years and 2 months; the State Parole Authority to determine whether supervised residential accommodation is appropriate upon release

Key Takeaways

  • The District Court reaffirmed that armed robbery is not a property offence alone; it is a crime against individuals and the broader community, attracting significant retributive weight regardless of the weapon used.
  • Under the totality principle, sentencing courts must structure concurrent and cumulative terms so that the aggregate sentence is just and appropriate to the overall offending, rather than merely adding each penalty in sequence, which can produce a crushing and unjust result.
  • A history of profound disadvantage, including childhood drug exposure and near-total institutionalisation from a young age, remains a mitigating factor in sentencing consistent with Bugmy v The Queen, even where the objective seriousness of the offences is high.
  • Special circumstances within the meaning of the Crimes (Administration of Sentencing) Act 1999 were found where the offender had never lived in the community and required an extended supervised parole period to access rehabilitation programs and transition meaningfully into free society.
  • Rehabilitation was treated not merely as a matter of individual benefit but as a community interest: a sentence that leaves an offender without hope or support on release is likely to produce further offending, undermining community protection over the longer term.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentencing) Act 1999 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Henry v R (1999) 46 NSWLR 346
- Legge v R [2004] NSWCCA 244
- R v Herring (1956) 73 WN (NSW) 203