Citation: R v Quirk [2023] NSWDC 394
Court: District Court of New South Wales
Date: 4 August 2023
Judge: Haesler SC DCJ
Background
In the early hours of 28 June 2022, the offender drove three others to a residential unit in southern Wollongong. One of the group approached the door while another, Greg Merritt, produced a shortened firearm and demanded entry. The offender and a fourth person remained in the shadows, unseen by the residents. CCTV footage captured the incident, and all four were arrested on 1 July 2022.
The offender pleaded guilty in the Local Court to using an offensive weapon in company with intent to commit an indictable offence under s 33B(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 15 years' imprisonment.
The offender had remained in custody for approximately nine months before being bailed to Oolong House, a residential rehabilitation facility. He appeared before the District Court for sentencing after completing that program.
Legal Issues
- How objectively serious was the offender's role in the group offending, compared with that of the principal offender, Merritt?
- How should parity principles apply, given that Merritt had already been sentenced?
- What weight should be given to the offender's youth, drug dependency, and mental health conditions as mitigating factors?
- Whether time spent at the Oolong House rehabilitation facility qualified as quasi-custody, warranting a sentence reduction.
- Whether an Intensive Correction Order (ICO) was appropriate, having regard to community safety as the paramount consideration.
Decision
Objective seriousness and role: Haesler SC DCJ found the offence was objectively serious. Armed intimidation at a person's home is a significant intrusion on personal security, and the group nature of the offending increased its gravity. The offender's role was instrumental: the offence could not have occurred without him driving the group to the scene. However, the court accepted that he was less culpable than Merritt, noting that the offender retreated once the situation escalated and that the two remaining participants were not visible to the victims.
Parity: The court applied parity principles by reference to the earlier sentencing of Merritt (R v Merritt [2023] NSWDC 29), where the starting point before statutory reductions was three years' imprisonment. Like must be compared with like, and the court was satisfied that differential treatment was justified by the offender's lesser culpability and his distinct subjective circumstances.
Subjective case: The offender was born in 2001 and had a prior criminal history, though this was his most serious matter. A forensic psychologist's report diagnosed him with Major Depressive Disorder, Generalised Anxiety Disorder, and Stimulant Use Disorder. The court accepted that none of these conditions causally contributed to the offending, but found they were nonetheless relevant to rehabilitation prospects and the purpose of sentencing. His family provided support, and he had engaged with programs at Oolong House, though the reports indicated he was not yet fully ready to address his core issues.
Sentence and ICO: The court determined that, had it imposed a backdated term of full imprisonment, the sentence would have been 1 year and 10 months with a non-parole period of 11 months, incorporating a special circumstances finding and a two-month reduction for quasi-custody at Oolong House. Because an ICO cannot be backdated, the court sentenced the offender to 11 months' imprisonment to be served by way of intensive correction in the community. The paramount consideration for an ICO under Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 is community safety. The court found that supervised community correction, with mandatory mental health and drug relapse programs, offered the best prospect of reducing the offender's future risk.
Orders Made
- The offender was sentenced to 11 months' imprisonment to be served by way of Intensive Correction Order (ICO) in the community.
- Standard ICO conditions applied: good behaviour, reporting to Community Corrections, and acceptance of supervision.
- Additional conditions imposed:
- Engage in mental health care as directed
- Engage in drug relapse prevention programs
Key Takeaways
- The District Court confirmed that parity remains a live consideration in co-offender sentencing: where one co-offender has already been sentenced, the court must compare like with like and account for differences in culpability and subjective circumstances when arriving at a just outcome for the later offender.
- A lesser operational role in group offending (such as driving rather than wielding the weapon, and retreating as matters escalated) can reduce relative culpability, even where legal liability is the same.
- Time spent in a residential rehabilitation facility on bail can qualify as quasi-custody, attracting a sentencing discount. Here, four months at Oolong House produced a two-month reduction.
- Under Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, community safety is the paramount consideration before an ICO is imposed. The court must be satisfied that an ICO can adequately moderate future risk, not merely that full-time custody would be counterproductive.
- An ICO cannot be backdated to account for time already served in custody or rehabilitation, a feature that can affect the final structure of a sentence where a custodial term with a backdated non-parole period might otherwise have been ordered.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33B(2) (use of offensive weapon in company with intent to commit an indictable offence)
Cases
- R v Merritt [2023] NSWDC 29 (co-offender sentencing, applied for parity)
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 (community safety as paramount consideration for ICOs)