New South Wales Court of Criminal Appeal CITATION : R v Merritt [2000] NSWCCA 365 FILE NUMBER(S) : CCA 60239/00 HEARING DATE(S) : 9 August 2000 JUDGMENT DATE : 13 September 2000 PARTIES : Regina v Noel Joseph Merritt JUDGMENT OF : Beazley JA at 1; O'Keefe J at 2; Smart AJ at 45 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0071 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : R D Cogswell SC and G Rich - For Crown M G Pincott, solicitor - For Appellant SOLICITORS : S E O'Connor - For Crown Sydney Regional Aboriginal Corporation Legal Service - For Appellant CATCHWORDS : Criminal Law - Appeals - Crown appeal against sentence - inadequacy - Second trial - Constraint of second trial judge by sentence imposed after first trial - Misapplication of principles in R v Gilmore and R v Bedford LEGISLATION CITED : Criminal Appeal Act 1968 (UK) s.8(4) and Sch.2 par 2(1) R. v Gilmore (1979) 1 ACR 416 R v Bedford (1986) 5 NSWLR 711 House v The King (1936) 55 CLR 499 CASES CITED: Minister for Aboriginal Affairs v Peko Walsend Limited (1985-86) 162 CLR 24 R v Garrett (1978) 18 SASR 308 R v Henry (1999) 46 NSWLR 346 Veen v The Queen (1987-88) 164 CLR 465 DECISION : Appeal against sentence for offence of larceny dismissed.; Appeal against sentence for the offence of armed robbery with wounding - allowed; sentence quashed; In lieu of sentence imposed for armed robbery with wounding a sentence of imprisonment for 18 years commencing on 2 June, 1999 with a non-parole period of 13-1/2 years commencing on that date and ending on 1 December, 2012. IN THE COURT OF CRIMINAL APPEAL NO: 60239 of 2000 BEAZLEY JA O'KEEFE J SMART AJ Date: 13 September 2000 REGINA v NOEL JOSEPH MERRITT JUDGMENT 1 BEAZLEY JA: I agree with O'Keefe J 2 O'KEEFE J: This is an appeal by the Crown against two sentences of imprisonment imposed on Noel Joseph Merritt (the prisoner) by Luland DCJ on 24 March, 2000. The ground of appeal is that the two sentences are inadequate. 3 On 16 March 2000 the prisoner was convicted of two offences, namely: 1. On 13 September, 1995 being armed with an offensive weapon, namely a sawn off rifle, he assaulted Robert Leggett with intent to rob him, and at the time of the assault wounded him (the first offence); 2. On or about 13 September, 1995 he stole a motor vehicle (second offence). 4 On 24 March, 2000 Luland DCJ sentenced him to a minimum term of nine years to commence on 2 June, 1999 and expire on 1 June, 2008 and an additional term of five years to commence on 2 June, 2008 and expire on 1 June, 2013 in respect of the first offence and a fixed term of twelve months to commence on 2 June, 1999 in respect of the second offence. The date of 2 June, 1999 was the day following the date of expiry of a minimum term of imprisonment which the prisoner was then serving in respect of a charge of escaping from custody. 5 The trial of the prisoner before Luland DCJ was his second for the two offences on which he was convicted, having been previously convicted on 1 August, 1997 for those offences as well as for an offence of escaping from lawful custody. The previous convictions on the two matters now before the Court were set aside by the Court of Criminal Appeal (Wood CJ at CL, James and Adams JJ) on 10 March, 1999. 6 The circumstances of the relevant offences are that the prisoner in company with two others went to the vicinity of the then Children's Hospital at Camperdown on 13 September, 1995 in a vehicle which had been stolen. Shortly after 10am on that day two employees of an armoured delivery service company, Messrs Malone and Leggett, were making a delivery of money to a credit union which had offices within the hospital. Mr Malone carried the money into an inner office of the credit union whilst Mr Leggett stood guard at the door which led into the credit union offices from a corridor of the hospital. Whilst standing guard he was attacked by one of the persons accompanying the prisoner and in the course of the struggle a sawn off rifle being carried by that person was discharged and Mr Leggett was shot in the lower abdomen. 7 As Mr Leggett's assailant stood over him, Mr Malone saw the prisoner in the credit union offices. Mr Malone thereupon fired a number of shots at both the prisoner and Mr Leggett's assailant and then chased them when they sought to escape. The two men ran from the building. It was apparent that Mr Leggett's assailant had been wounded by Mr Malone's shots but he escaped in a car driven by the third person, who had been waiting in the car obviously ready to make a get away. 8 The prisoner made his escape by running across Bridge Road into the car parking area of a block of Housing Commission flats opposite the hospital. There he discarded what was later found to be a balaclava, a latex glove and a beanie head covering. The glove was found to bear his finger prints. 9 The prisoner was not apprehended until January, 1996. On arrest it was found that he too had been wounded by the shots fired by Mr Malone. However, the prisoner sought to explain the scars left by the bullet wounds on the basis that he had injured himself when he fell on a fence. 10 Notwithstanding a strong Crown case and the fact that two juries had convicted him of the offences the subject of the present appeal, the prisoner attacked the jury's finding and showed no remorse. Indeed, as is apparent from the transcript of what passed between the prisoner and Luland DCJ on 17 and 24 March, 2000, the prisoner sought to portray himself as the victim rather than Mr Leggett, argued against the jury's verdict, largely on the basis that the evidence against him was circumstantial. He claimed further that the jury was bored and had given no consideration to or displayed any interest in him as the accused person before them. He also attacked the jury and hence its verdict saying that "they could be racist against my culture, they could be racist against a number of things".(AB 015). 11 He criticised his legal representation on the basis that "they have a relationship to protect the interest of the Crown and the police allegations. They haven't got no interest in protecting the social or legal rights of an accused person who maintains he is innocent." In imposing the sentences Luland DCJ commented: "The prisoner shows absolutely no remorse for his offence. From his remarks to me following his Counsel's submission and here again today he continues to express his non-acceptance of the laws of this country as having application to him" 12 In my opinion this is a fair summary of the attitude of the prisoner as manifest by his behaviour at the time of the crimes of which he was convicted, subsequent thereto and at his trial before Luland DCJ. 13 The first offence is, of its very essence, grave. The circumstances of its commission mark it out as extremely so. Freeman DCJ, the trial judge at the first trial of the prisoner described the first offence "as being an appalling crime". Luland DCJ in describing its seriousness said: "One needs say nothing further as to the seriousness of the robbery and wounding charge other than to confirm and accept the remarks by Judge Freeman and also to have (sic) note as to what the Court of Criminal Appeal said when it determined the matter and said it regarded this offence as towards the upper end of seriousness." 14 The prisoner has a very bad record, extending back to his days as a juvenile. It has progressed through stealing offences to having explosives in his possession, possessing unlicensed firearms, escaping from custody and ultimately to a number of offences of robbery whilst armed (3), armed assault with intent to rob whilst wounding and robbery in company. In respect of these last mentioned offences he was sentenced to substantial terms of imprisonment in 1976, 1980, 1984, 1985 and 1990, but appears to have learnt nothing from such sentences. 15 At his first trial for the offences presently under consideration, Freeman DCJ sentenced the prisoner to a minimum term of nine years with an additional term of five years in respect of the first offence . In respect of the second offence the prisoner was sentenced to a fixed term of twelve months to be served concurrently with the other sentence. 16 From the convictions and sentences that resulted from the first trial, both the prisoner and the Crown appealed. As the prisoner was successful in his appeal in relation to his conviction it was unnecessary for the Court of Criminal Appeal to make a final determination in respect of the inadequacy of the sentence that had been imposed upon him by Freeman DCJ. However, in the course of the judgment the Court of Criminal Appeal referred to the attitude of the prisoner to the laws of the State and adverted to his previous convictions . The judgment records that the prisoner said : "I have never accepted a conviction against me. I have never acknowledged that I was guilty in any way. I am not guilty. I am still not guilty and I will always be not guilty … that's my state of mind now and that will be my state of mind ten years, twenty years, that will be my state of mind until the day I die." (para 83) 17 However, notwithstanding the above reference the Court stressed that: "It would be completely inappropriate to punish the appellant more harshly for having expressed his defiance of the law and attempting to justify his behaviour by rejecting the notion that by committing crimes against his fellow citizen … he had done something wrong. At the same time, the mitigation is lacking that would otherwise be present where there is genuine contrition to ameliorate the severity of a sentence determined largely by the objective seriousness of the offence, the need to protect the community and the requirement of general and personal deterrents." (para 91) 18 In the result the Court was of the view that: "Giving due consideration to the maximum penalty provided by law the sentence passed by the Court below was so lenient as to indicate a failure by the learned sentencing judge properly to apply his discretion." (para 92) 19 Although these last remarks are strictly obiter dicta, I respectfully agree with and adopt them as a proper description of the sentence imposed by Freeman DCJ. In his reasons for sentence Luland DCJ expressed the view that the sentence imposed by Freeman DCJ "does not reflect the seriousness of the offence", but nonetheless felt "constrained from imposing any greater sentence," having regard to the principles enunciated in R v Gilmore (1979) 1 ACR 416 and R v Bedford (1986) 5 NSWLR 711. 20 It has been submitted on behalf of the Crown that Luland DCJ fell into appellable error in determining the sentence that he should impose of the prisoner and that as the sentence imposed was inadequate this Court should review it. 21 The imposition of a sentence to a term of imprisonment depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of such a discretion should be determined is governed by well established principles. It is not enough that the judges constituting the appellate court consider that if they had been in the position of the judge who imposed the sentence, they would have imposed a different sentence. As was said in House v The King (1936) 55 CLR 499: "It must appear that some error has been made in exercising the discretion. If the judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (at 505 per Dixon, Evatt and McTiernan JJ) 22 See also Minister for Aboriginal Affairs v Peko Wallsend Limited (1985-86) 162 CLR 24. 23 Since Luland DCJ "felt constrained" not to impose a heavier sentence than the trial judge at the first trial of the prisoner for the offences now before the Court, it is necessary to examine the basis that he relied on for such constraint, namely the decisions in R v Gilmore (supra ) and R v Bedford (supra ). 24 R v Gilmore was an application for leave to appeal against the severity of sentences imposed as a consequence of Gilmore's conviction on two counts of maliciously throwing an explosive substance into a building with intent to cause damage, one count of demanding money with menaces and one of throwing an explosive substance near a vehicle with intent to cause damage. 25 The sentences appealed against had been imposed following a second trial. At the first trial , which had been presided over by another judge , sentences aggregating 8 years with a non-parole period of 3 years had been imposed. Although the convictions at the first trial were the subject of appeal, no appeal was instituted in respect of the sentences and there was no suggestion that such sentences were other than appropriate. However, at the second trial the sentences imposed aggregated 14 years with a non-parole period of 6½ years. There was thus a very substantial disparity between the sentences resulting from each of the trials. 26 Street CJ, with whom Lusher J agreed, examined the statutory provisions in England which gave to the English Court of Criminal Appeal's power to order a new trial and noted that where a first conviction is quashed on appeal the English legislation imposes a statutory limit upon the sentence that may be imposed on the new trial. That sentence may not be "a sentence of greater gravity than that passed on the original conviction" (Criminal Appeal Act 1968 (UK) s.8(4) and Sch 2 par 2(1)). He said that there were policy considerations underlying the specification of the upper limit on the sentence, namely that a person whose conviction was defective should not be required to run a risk of suffering a heavier sentence on a new trial, it being wrong that a person may feel constrained not to expose the defect lest on a new trial a heavier sentence is imposed . 27 Secondly, if a heavier sentence is imposed on a new trial , it could be seen as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overturned. Although such a perception would be groundless, it is in the interests of justice to avoid such a perception which could expose the criminal justice system to criticism. 28 The policy considerations that underlay the English legislation were, as Street CJ pointed out, the basis of a principle or policy of sentencing. It was in this context that Street CJ said: "It is a sound principle of sentencing that on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial" (supra at 419); and "… so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again" (id). 29 The formulation of this statement is not the formulation of a fixed principle of law. The context of the judgment in which it occurs as well as its form, in my opinion, make it clear that what is being stated in the proposition referred to above is a principle or policy that is not inflexible, but rather one that expresses the prima facie situation, the application of which will yield in an appropriate case (supra at 419). The use of the word "ordinarily" also highlights this, as does the use of the word "should" in relation to the application of the principle or policy. 30 The statement in R v Gilmore has been applied frequently in New South Wales and has been adhered to notwithstanding that in some other States a different principle or policy has been applied. That there was a divergence between States (e.g. Garrett (1978) 18 SASR 308) was considered by the New South Wales Court, but this did not deter the New South Wales Court from stating the principle or policy referred to above. 31 That the Court did not intend that R v Gilmore should be regarded as absolutely depriving a judge on a second trial of any discretion in relation to the sentence to be imposed is demonstrated by R v Bedford (1985-1986) 5 NSWLR 711. In that case the Court of Criminal Appeal (Street CJ, Slattery CJ at CL and Brownie J) considered an appeal against the sentences imposed following a second trial in respect of a number of sexual offences of which the appellant had been previously convicted. The sentences imposed following the second trial were such that when regard was had to the non-parole period fixed in each case the appellant would have to serve a greater period of imprisonment than he would have been required to serve under the sentence imposed at the first trial. It was argued that this was an infringement of the principle stated in R v Gilmore (supra). As a consequence the Court examined what it was that R v Gilmore actually decided. 32 Street CJ, with whom Slattery CJ at CL and Brownie J agreed , said: "It is significant to emphasise that the enunciation of the principle includes "should ordinarily not receive". The word "ordinarily" must be given full room to operate. It might perhaps have been preferable to have expressed this as a prima facie approach rather than elevating it to principle." (at 713-714) 33 The approach referred to in R v Gilmore when correctly understood in the light of the explanation in R v Bedford means that: "Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the prime facie approach to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to that view." ( R v Bedford supra at 714). 34 Street CJ gave a number of examples of situations in which the sentence on the second trial may properly be higher that that imposed at the first trial. These included the existence of particular subjective elements or "a multiplicity of factors" (at 714) which could lead to a departure from the prima facie situation. One situation in which the prime facie situation established by the sentence imposed at the first trial may be departed from would be where the sentence imposed at the first trial was remarkably lenient. In my opinion, another would be where the sentence imposed at the first trial was such that had it been the subject of an appeal, either by the Crown or an accused person, it have been such as to bespeak intervention by the Court of Criminal Appeal on the ground that it was either inadequate or excessive. A sentence which is "remarkably lenient" will usually be inadequate. 35 Furthermore, the Court stressed that "(w)hat was described as a principle ordinarily to be followed will not prevent such a departure" (ibid). 36 The sentence imposed by Freeman DCJ was in my opinion inadequate and such as to bespeak intervention on appeal by the Court of Criminal Appeal. That was the view taken by the Court of Criminal Appeal in the prisoner's first appeal, albeit in obiter dicta. It is the view which I hold in respect of the sentence. In my opinion this means that Luland DCJ was not, in the circumstances of the present case, constrained to impose a sentence less than he thought appropriate in the proper exercise of his discretion as the sentencing judge. He used as the yardstick of the sentence imposed by him a sentence which was so inadequate as to be open to being set aside. There was no constraint on Luland DCJ to do so in the present case. His sentencing on the basis that there was, constitutes an error of law in the exercise of his discretion of a kind described in House v The King (supra). 37 For the foregoing reasons I am of opinion that Luland DCJ fell into error in exercising his discretion to impose the sentence on the first offence. The Crown appeal in respect of the sentence imposed in relation to the first offence should therefore be allowed and the sentence imposed in respect of it should be quashed. 38 In R v Henry (1999) 46 NSWLR 346 the Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL, Newman, Hulme and Simpson JJ) laid down guidelines for sentencing in relation to offences under s.97 of the Crimes Act 1900. Spigelman CJ set out a number of circumstances particular to the offence of armed robbery to be taken into account in fixing a sentence. These include: "i. nature of the weapon; ii. vulnerability of the victim; iii. position on a scale of impulsiveness/planning; iv. intensity of threat or actual use of force; v. number of offenders; vi. amount taken vii. effect on victim(s)." (at 381) 39 The first offence was extremely grave, both in its nature and its characteristics. A firearm was used. It had been cut down making it more readily concealable but no less dangerous. Mr Leggett was vulnerable by virtue of being a carrier and protector of money . Three people were involved in the commission of the offence. The involvement of those people, the use of a get away car, the fact that one of the perpetrators remained in the car to facilitate quick escape and the means taken by way of dress and gloves to conceal identity all indicated a high degree of planning for the carrying out of the crime. Considerable force was used. A weapon was discharged resulting in Mr Leggett being shot in the abdomen. The weapon was discharged in a situation in which others, including children, and other members of the public attending the hospital as well as hospital staff, had the potential to be involved. On the scale of seriousness the circumstances are in the zone of extreme gravity. This means that the element of retribution is significant in fixing the sentence. 40 The prisoner, as indicated above, has a history of armed robbery, robbery in company and armed assault with intent to rob whilst wounding. Whilst the previous criminal history of the prisoner may be taken into account in determining his sentence, it cannot be given such weight as to give rise to a penalty which is disproportionate to the gravity of the offence. However, such history is relevant to show that the offender has demonstrated a continuing attitude of disobedience of the law. In such a case retribution, deterrence and protection of society may indicate that a more severe penalty is warranted. Where such record shows a dangerous propensity on the part of the prisoner or the need to impose well-merited punishment to deter him or others from committing similar offences it is appropriate to take it into account. 41 In Veen v The Queen (1987-88) 164 CLR 465 it was said: "… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell . The antecedent criminal history is relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence, and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." (at 477 per Mason CJ, Brennan, Dawson and Toohey JJ) 42 In view of the extreme gravity of the offence, the absence of mitigating factors, the maximum sentence provided by Parliament, namely 25 years, the fact that, to adopt the words of the Court of Criminal Appeal on the first appeal, it was an offence the circumstances of which "place it well towards the upper end of seriousness" for the type of crime in question, the need for appropriate retribution, the deterrence of others and the protection of society, the correct sentence is one of 18 years imprisonment with a non parole period of 13 ½ years to commence at the expiration of the minimum term of the sentence for escaping from lawful custody. 43 The sentence imposed by Luland DCJ in respect of the second offence, larceny of a motor vehicle, falls within the parameters of discretion open to him. In my opinion no error is disclosed in respect of the sentence imposed by Luland DCJ in respect of the second offence. The fact that the vehicle was stolen for the purposes of the first offence combined with the principle of totality in my opinion make it appropriate that such sentence should be served concurrently with the sentence for the first offence. 44 I propose the following orders: (1) Appeal against sentence for the second offence of larceny dismissed; (2) Appeal against sentence for the first offence of armed robbery with wounding allowed; sentence` quashed; (3) In lieu of the sentence imposed for armed robbery with wounding Noel Joseph Merritt is sentenced to imprisonment for 18 years commencing on 2 June 1999 with a non parole period of 13 ½ years commencing that day and ending on 1 December 2012 on which day Noel Joseph Merritt is eligible for release on parole. 45 SMART AJ: I agree with O'Keefe J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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