Citation: R v Merheb [2020] NSWDC 385
Court: District Court of New South Wales
Date: 24 June 2020
Judge: Colefax SC DCJ
Background
The offender, a 41-year-old man with an extensive adult criminal history dating back to 1997, appeared for sentence on two residential break-and-enter offences committed in October 2019. At the time of both offences, he was on parole for a drug supply conviction.
The first offence involved breaking into a family home at Rosemeadow in the early hours of 25 October 2019, while the occupants (including a baby) were asleep. The offender stole iPhones, a laptop, house and car keys, and a wallet from the premises. Three days later, he attempted to break into a second dwelling at Bradbury, leaving the backyard gate open (causing the family's dog to escape) and apparently stealing a wallet, though the precise circumstances were unclear.
The offender was identified through fingerprint and DNA evidence left at the second scene, and was arrested on 7 November 2019. His parole was subsequently revoked, partly because of these offences and partly due to separate failures to comply with parole conditions.
Legal Issues
- How each principal offence should be assessed for objective seriousness under ss 112(2) and 113(2) of the Crimes Act 1900 (NSW)
- What weight to give the offender's subjective circumstances, including a difficult childhood, sexual abuse, and long-term drug dependency
- Whether the offender's stated willingness to engage in rehabilitation should attract meaningful mitigation
- What discount to apply for early guilty pleas
- Whether special circumstances existed to justify varying the standard non-parole period ratio
- What the appropriate start date for the aggregate sentence should be, given the overlap with the unexpired balance of the revoked parole
Decision
The District Court assessed both principal offences as sitting roughly midway between the bottom and middle of the range for objective seriousness. The presence of persons in the premises at Rosemeadow was the key aggravating feature for the first offence under s 112(2). The offender's parole status at the time of both offences was treated as a significant statutory aggravating factor. The prosecution did not press his prior criminal history as an additional aggravating factor, and the court did not treat it as one.
On subjective circumstances, Colefax SC DCJ accepted that the offender had experienced a difficult upbringing, including parental separation, an alcoholic mother, and what appeared to be childhood sexual abuse. The court noted the findings of the Royal Commission into institutional child sexual abuse regarding the potential for long-term harm from abuse previously characterised as minor, and accepted that the abuse likely contributed to early substance misuse. However, these factors carried limited mitigatory weight given the length and persistence of the offending.
The court placed little weight on the offender's expressed willingness to engage in drug rehabilitation. His failure to engage with parole supervision and community corrections programs during his most recent period on parole directly contradicted the assurances he had given to the psychologist. The court found his rehabilitation prospects to be "extremely guarded."
A 25% discount was applied to both indicative sentences for the utilitarian value of guilty pleas entered at the first available opportunity. A slight special circumstances adjustment was made to the non-parole period ratio. The start date was set at the date of sentencing rather than the date of arrest, primarily to preserve some effective period on parole. The totality principle also informed this decision.
Orders Made
- Aggregate term of imprisonment of 5 years and 6 months
- Non-parole period of 4 years, commencing 24 June 2020 and expiring 23 June 2024
- Balance of parole of 1 year and 6 months, commencing 24 June 2024 and expiring 23 December 2025
Key Takeaways
- Being on parole at the time of offending constituted a significant aggravating factor for each principal offence, and the court gave this substantial weight in the sentencing exercise.
- A 25% utilitarian discount for early guilty pleas applied even where the Crown case was strong; the pleas were not treated as indicative of remorse beyond their procedural value.
- Where an offender's stated intentions conflict with demonstrated conduct during a recent period of supervised parole, the District Court afforded little mitigatory weight to expressions of willingness to rehabilitate.
- The sentencing court declined to backdate the aggregate sentence to the date of arrest, accepting the prosecution's submission that doing so would eliminate any effective balance on parole and undermine the purposes of the parole system.
- Childhood trauma, including sexual abuse and parental dysfunction, can be acknowledged as a contributing factor in an offender's history without translating into significant sentencing discount, particularly where the pattern of offending is lengthy and rehabilitation prospects are poor.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter and commit serious indictable offence: maximum 20 years, standard non-parole period 5 years)
- Crimes Act 1900 (NSW), s 113(2) (attempted break and enter dwelling house with intent: maximum 10 years)
Cases cited: No cases were cited in the judgment.