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District Court 5 April 2023

R v Merritt

[2023] NSWDC 339

Firearms & weaponsPublic order & justice offences

Citation: R v Merritt [2023] NSWDC 339
Court: District Court of New South Wales
Date: 5 April 2023
Judge: Haesler SC DCJ

Background

The offender had been sentenced by the same judge in 2019 for a series of serious offences and was released on parole in December 2021. He relocated to the South Coast with his partner, found work, and settled into a more stable life. However, a return to the Wollongong area, combined with renewed methamphetamine use and mounting personal stresses, preceded the commission of the present offence.

At approximately 2am on 28 June 2022, the offender attended a residential address in southern Wollongong with at least three other people. When a homeowner opened the door, the offender emerged from behind a pillar, shouted abuse, pulled at the glass door, and pointed what appeared to be a shortened firearm wrapped in a towel at those inside. The incident was captured on CCTV. The firearm was not discharged, though a loud bang was heard when the offender struck the outside of the premises in apparent frustration.

The offender pleaded guilty to using an offensive weapon with intent to commit the indictable offence of intimidation while in company, contrary to section 33B(2) of the Crimes Act 1900 (NSW). A key aggravating factor was that the offence was committed while the offender was on parole. Following his arrest, the offender provided police with information that led to the recovery of what the court accepted was the firearm used in the offence.

  • What was the appropriate sentence given the objective seriousness of the offence, including the use of a firearm, commission at the victim's home, and presence of multiple offenders?
  • What weight should be given to the offender's deprived Aboriginal background under the principles in Bugmy v The Queen, particularly in the context of repeated offending?
  • How should the sentence be reduced to reflect the offender's assistance to police in recovering the firearm, pursuant to section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • Did special circumstances exist justifying a non-parole period shorter than the statutory proportion?
  • Was a social worker's report rendered inadmissible by section 15 of the Children (Criminal Procedure) Act 1987 (NSW), which restricts disclosure of certain information about a person's conduct as a child?

Decision

Haesler SC DCJ assessed the offence as objectively serious. The use of a firearm to intimidate occupants inside their own home, in the company of at least four people and at 2am, warranted a custodial sentence. The maximum penalty of 15 years imprisonment for the offence was noted as a reference point, and the parties agreed that only a custodial sentence was appropriate.

The court applied Bugmy v The Queen (2013) 249 CLR 571, which requires sentencing courts to give ongoing weight to the moral culpability-reducing effect of severe social disadvantage experienced during an offender's upbringing, even where the offender has re-offended. The offender's background included significant deprivation, time in juvenile detention, and limited stable influences. The court found that his return to Wollongong, use of methamphetamine, and consequent offending were connected to that background. The six-month period on parole without offending was noted as meaningful in the context of the offender's life, even if modest in absolute terms.

The court reduced the sentence by three months under section 23 of the Crimes (Sentencing Procedure) Act 1999 to reflect the offender's assistance to police in locating the firearm. The reduction was made expressly in months rather than as a percentage, for transparency. The court found no evidence of genuine remorse motivating the disclosure and acknowledged the assistance was offered in exchange for a sentencing benefit. Nonetheless, the recovery of a weapon that would otherwise have remained in the community warranted the reduction. A finding of special circumstances was made, resulting in a non-parole period equal to the parole period, to allow for maximum supervision on release.

On the evidentiary objection, the court held that section 15 of the Children (Criminal Procedure) Act 1987 did not render the social worker's report inadmissible. The section has specific requirements, and the mere fact that an offender had been in juvenile detention does not, without more, engage the provision.

Orders Made

  • Non-parole period of 1 year, commencing 1 September 2022, with eligibility for release to parole on 31 August 2023.
  • Parole period of 1 year from 31 August 2023.
  • Total sentence expires 31 August 2024.
  • Special circumstances found, resulting in a non-parole to parole ratio of 1:1.
  • The social worker's report (Ms Jelen) was not found inadmissible under section 15 of the Children (Criminal Procedure) Act 1987.
  • CCTV footage (Exhibit B) directed to be returned to the Director of Public Prosecutions rather than made subject to a suppression order, to protect the upcoming trial of co-accused.

Key Takeaways

  • The Bugmy principle that severe childhood deprivation reduces moral culpability continues to apply on sentencing regardless of prior convictions or repeated offending. The District Court reaffirmed that this principle does not diminish with each successive sentence.

  • A sentence reduction under section 23 of the Crimes (Sentencing Procedure) Act 1999 for assistance to police in recovering a weapon can be expressed as a fixed number of months rather than a percentage, where the court considers this more transparent.

  • Where an offender provides information leading to recovery of a firearm but does so in exchange for a sentencing benefit rather than out of remorse, the court may still apply section 23, though the absence of remorse remains a relevant factor in the overall assessment.

  • Under section 15 of the Children (Criminal Procedure) Act 1987, the bare fact that a person was once held in juvenile detention is not inadmissible in sentencing proceedings. The section's specific requirements must be engaged before material is excluded.

  • Special circumstances justifying a departure from the standard non-parole period ratio can be established where an offender has a demonstrated need for extended supervision and support on release, particularly where rehabilitation depends on structured post-release programs and community-based assistance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 25D
- Children (Criminal Procedure) Act 1987 (NSW), s 15

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Merritt [2019] NSWDC 713
- R v Moradian [2011] NSWDC 130