New South Wales Supreme Court CITATION : REGINA v. MERRITT [2002] NSWSC 1159 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC No. 70010 of 2002 HEARING DATE(S) : 31 May 2002; 26 July 2002 JUDGMENT DATE : 4 December 2002 PARTIES : REGINA v. MERRITT, Craig Andrew JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: P. Dare Off: P. Zahra, SC. SOLICITORS : Crown: S.E. O'Connor Off: D.J. Humphreys CATCHWORDS : Murder - three counts - offender's infant children - worst class of case - heinousness - extreme level of culpability - life sentence - two stage process - absence of effective subjective matters LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Previtera (1997) 94 A. Crim. R. 76 Veen (No. 1) (1978-79) 143 CLR 458 Veen (No. 2) (1986) 161 CLR 158 Petrinovic [1999] NSWSC 1131 Harris (2000) 50 NSWLR 409 Rose (CCA, unreported 11 October 1999) Miles [2002] NSWCCA 276 CASES CITED : Pearce (1998) 194 CLR 610 Ibbs (1987) 163 CLR 447 Twala (CCA, unreported 1 November 1994) Veleski (Dunford, unreported 26 September 1997) Park (Sperling, J., unreported 3 August 2000) Cikos (Dunford, J., unreported 9 February 2002) Cheatham (Grove, J., unreported 16 July 2001) Garforth (CCA, unreported 23 May 1994) DECISION : On each of the three counts in the indictment, I sentence the offender to life imprisonment to date from 2 September 2001. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION GREG JAMES, J. WEDNESDAY 4 DECEMBER 2002 No. 70010 of 2002 REGINA v. CRAIG ANDREW MERRITT SENTENCE 1 HIS HONOUR: The offender, Craig Andrew Merritt, was arraigned on 12 April 2002 before Barr, J. on which arraignment he pleaded guilty to three counts in the indictment presented against him. Subsequently, he adhered to his pleas before me. 2 The proceedings were stood over from time to time to permit the filing by both the Crown and the offender of extensive written submissions to which I have had close and anxious regard. 3 Opportunity was furnished to the offender's legal advisers to embark on extensive investigations to seek to ascertain the motivation and the mental state of the offender. 4 The Crown provided me with an agreed statement of facts and other written materials which included statements by family members. For the offender, two reports from Dr. Allnutt, psychiatrist, were tendered. All this material was admitted by consent and without challenge. 5 The facts of what occurred giving rise to the offences charged are not in dispute. 6 In each of the counts contained in the indictment and to which the offender has pleaded guilty, he stood charged with the murder of one his natural children. All of the murders were committed on 2 September 2001. Each victim was the child of the offender by a different partner. 7 The deceased were all very young children. At the time of their deaths, the deceased Jackson James Merritt was aged six years, Taylah Pringle was aged 11 months and Mikaylah was aged 11 weeks. 8 The children were staying with the offender overnight at his mother's home. He had custody of the children that weekend. The children were to spend the weekend with the offender and his family for Fathers' Day. 9 On the evening of Friday 31 August 2001, the children were bathed, fed and put into pyjamas. Taylah had fallen asleep by 7.30 pm. The offender put her into his mother's bed where she usually slept. He later put Mikaylah into bed in his sister's room and shortly thereafter put Jackson to bed. Taylah woke up and the offender brought her from the bedroom. There was a disagreement between the offender and his mother as to who would attend to the baby. 10 The offender apparently had consumed an amount of liquor. Accounts as to how much, to an extent, vary. At 12.08 am, he had an acrimonious telephone conversation with his aunt and following that conversation sent her a text message, "Thank you & good bye!". She did not reply to this message. About 1.30 am, he contacted his then current companion, who had been at the house earlier on the prior day, by a text message, "Good Buy (sic)" which was followed, when she did not respond, by a further text message, "Good Buy (sic) from me, my son and my daughters". Later, she received a further text message, "Good bye till next life. I've always loved U and UR sons.". She replied, "I still love you and your kids". 11 She was awakened about 5.30 am after hearing noises in her house. The offender was kneeling at the side of her bed, he was shaking and crying. He said to her, "I love you. I'm sorry and tell my mem that I am sorry.". He left the premises. She phoned the Merritt household later and a police officer spoke to her and she was later told of the death of the children. 12 When the offender's mother and sister, Kylie, woke on 2 September 2001, they discovered that the children were dead in the bed. Some days later, the offender's mother discovered Jackson's "rat tail", which was a feature of the young boy's hairstyle, which the offender had wished him to cut off for some time, had been removed. 13 At about 8.08 am on 2 September 2001, the offender attended Parramatta Police Station and informed the probationary constable then on duty, "I've just put my kids to sleep". When asked what he meant by that, he said, "I mean I've put them to sleep permanently … if you do not take me I'll walk out the door … don't leave me here or I'll walk out the door". He was spoken to by senior police to whom he repeated that he had put his children to sleep. The smell of alcohol was noted on his breath. He was taken into custody and seen by a legal aid solicitor. 14 Subsequently, he was charged with the offences. 15 The bodies of the children were discovered lying on the bed in the mother's premises alongside each other dressed in night clothes with no major injuries apparent. Jackson and Taylah were discovered, on post mortem, to have died from mechanical asphyxia consistent with suffocation. A definitive diagnosis was unable to be made in the case of Mikaylah. However, given the circumstances of the discovery and the admissions made by the offender, it is plain that all three children had been suffocated by him. 16 The offender has a short record of previous criminal offences. Most of them are of a minor nature, although there is one offence of assault occasioning actual bodily harm. 17 Although the offender had had a tempestuous domestic background with the three mothers of the deceased children, partly explicable, on their accounts, by his emotionalism and possibly by his having problems with drinking and gambling, it seems that, overall, his relations with his former partners were, as far as his access to the children of each of his previous relationships was concerned, reasonably amicable. It appears that the mothers of the deceased children and the various friends and relatives who were aware of the offender's relationship with those children, were all of the view that prior to the killings, the offender had a good and loving relationship with his children. There is no suggestion of any history of aggression towards the children nor of any act of abuse. Nor is there any suggestion that at any time he was otherwise irresponsible in respect of the children. 18 He seemed to be a person who was concerned to have an amicable family relationship, but was unable to maintain a steady relationship with a partner. There had been times at which he had disagreed with his partners and his mother concerning the children, claiming an ability to take care of his children, notwithstanding some criticism of his life choices. 19 On the night in question, having regard to the evidence of the offender's mother, there would seem to have been some incident concerning Jackson having forgotten to buy a Fathers' Day present for the offender. But the offender had played with the boy the preceding afternoon when he was apparently in a good mood. According to his mother, however, he had discussed with her whether he had been a failure, having had children by three partners and was a little bit emotional about attempting to care for the baby. He had had a disagreement with his aunt over having had three children to three mothers and had had a disagreement with Mrs. Frary (his current partner) when she was at the home that day. 20 The offender's aunt, as a result of the phone conversation she had with him, became concerned about whether the offender might harm himself. It appears no-one was concerned that he might, in any way, harm the children. That, notwithstanding, that at a point in 1999, he is said to have remarked to Mikaylah's mother that at one time he had thought about taking his and Jackson's life, but dismissed that thought saying, "why should he suffer because it's not his fault". Even in retrospect and having regard to that statement, what occurred is incomprehensible to those who knew the offender. 21 Victims' Impact Statements were provided by the mothers of the deceased children. I had, during the hearing of the matter, treated those statements in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 and Regina v. Previtera (1997) 94 A. Crim. R. 76. 22 The offender's prior circumstances are set out in detail in the reports of Dr. Allnutt, psychiatrist. Dr. Allnutt refers to the offender having, for some time, drunk alcohol but not to the extent of having any major alcohol problem. He referred to the offender's schooling which was disrupted at about age 13, but the offender's behavioural difficulties were not such as to prevent him attending high school until Year 10. Although his parents had separated, he had a good relationship with his mother, who was loving and supportive, as well as having a good relationship with his younger sister. He had been an apprentice electrician for two and a half years, subsequently working as a labourer in various jobs from which he denied being dismissed. 23 In January 2000, after some sort of dispute, he was charged with the offence of assault occasioning actual bodily harm, to which I have referred above, and of which he was, in due course, convicted. As a consequence, he lost his licence as a security guard, work that he had been engaged in since about 1994. Since that time and prior to the commission of these offences, he had apparently been attempting to get part-time employment. 24 He described to the psychiatrist six serious relationships, denying any overt violence of any unusual nature during those relationships. It is notable that his description of those relationships centred on the children rather than the partners. 25 His initial account to Dr. Allnutt of his recollection of the commission of the offence was completely defective. He denied any recollection of any disturbance in mood, unusual thoughts or perceptions. He denied thoughts of harming the children in any way. He recalls bathing the children, but claimed no recollection thereafter until the following morning. He denied dwelling on Jackson having failed to get him a Fathers' Day gift. He recalled drinking some alcohol, but not the entire bottle of Bourbon that some evidence claimed he drank. 26 At this point he made reference to prior periods of binge drinking during which he had had blackouts. This would suggest an alcohol problem of some seriousness. Whether because of his drinking or from some other cause (to this Dr. Allnutt returns), he was unable to give Dr. Allnutt any account of how the offences came about or his motivation. 27 Dr. Allnutt attempted to ascertain his possible motivation by speaking to his mother and aunt. Both, however, found the events of the night to be "totally unpredictable and essentially inexplicable". Dr. Allnutt had great difficulty in accessing information about the offender's emotional state, either at the time that he saw the offender or in the past. The offender's affect was flat and he was unwilling or unable to discuss his emotions. 28 Dr. Allnutt diagnosed him initially as suffering from a chronic, fluctuating, depressed mood which had its initial onset in late 2000. There was no psychotic disorder nor major depressive disorder. Dr. Allnutt characterised the offender's condition as a chronic adjustment disorder which is characterised by a fluctuating, depressed mood disturbance with associated difficulties in sleep, appetite, concentration and motivation. There was no evidence that he suffered from either a mental illness of mental disorder. The doctor thought that it was unlikely that he was feigning amnesia, since he accepted, although not remembering it, what it was he had done. 29 In the report of 29 May 2002, Dr. Allnutt notes that following further interviews with the offender, it was still clear that he continued to have no memory of the offence itself. He told Dr. Allnutt that he was in an emotionally stable state, not particularly bothered by anything. He had no recollection of a period of high emotion between himself and his mother, or himself and his aunt in the early hours of the morning. He recounted how emotionally affected he was at separation from Jackson as a consequence of his separation from Jackson's mother. He did not manifest any significant disturbances suggestive of underlying neurological illness, although reporting a depressed mood. He had suicidal thoughts in prison. He did not manifest any symptoms of psychosis. He said:- "I have to accept that I killed my children. Whether I'm in goal or whether I'm out of gaol, I'll be punished for the rest of my life." 30 He told the psychiatrist that he believed he should be punished for what he did; didn't seem to care about what the outcome would be for him; and accepted that it was likely that he would be incarcerated for a long time; he believed that this was the justice due to him. 31 Dr. Allnutt noted that the offence appeared to have no explanation. He referred to the most striking feature of the case as the contradiction between the offender's admission of guilt from the outset, his voluntarily handing himself into the police, pleading guilty and a desiring acceptance of even the most severe punishment, and, on the other hand, his absence of any account of what he had done to commit the offence. 32 Dr. Allnutt hypothesised that there was a genuine inability to recall the crime by reason of psychogenic amnesia arising out of the emotional response to an extreme stress arising from the crime. As I understand it, that is, he feels guilty and deserving of the maximum penalty so adopts a psychological mechanism of choosing a severe punishment rather than seeking to remember, admit or justify his behaviour. 33 Dr. Allnutt postulated that it was possible that he had feelings of unworthiness and frustration as a father on the day of the offence and says:- "Having regard to the text messages, I believe it would be reasonable to conclude that, at the material time of the offence, he had developed both homicidal and suicidal thoughts in the context of a depressed and irritable mood; and an emotional state of mind". 34 Dr. Allnutt pointed to the presence, at the material time, of depressive symptoms and feelings of anger and frustration. He said:- "It is also possible that the offence itself was triggered by a transient, yet pessimistic and despairing perception of his circumstances and possible alcohol consumption." 35 He said:- "Overall, notwithstanding that Mr. Merritt has committed an horrific crime, in my view, he can be regarded as falling into a low risk group of offenders for future re-offending." 36 From the observations in these reports and the evidence of the offender, it is apparent that the offender will need to be carefully considered within the gaol system as a person who might be at risk from others or from himself. It is likely that for a long time the present circumstances of his confinement in strict protection will continue and thus his imprisonment will be unusually onerous. 37 The offender gave evidence in the sentencing proceedings before me as did Dr. Allnutt. Their oral evidence supplemented the written material with which I was provided. 38 When the offender gave evidence, he confirmed that he had suffocated his three children, intending at the time to kill them. He reiterated that he had no memory, however, of doing so; that his last recollection was of bathing the children and getting them ready for bed the previous evening. The account he gave in chief was essentially that to which I have already referred. During that account, I raised the following issue:- "HIS HONOUR: Mr. Zahra, your client may not know what it was that caused him to do what he did, but he would have himself thought about it and speculated as to what it was that caused him to do it. Whether right, wrong or otherwise. Are you intending to elicit evidence about what he thinks about what he did? ZAHRA: Yes. I was in fact going to come to that now, your Honour. I do not expect my examination in chief to take much longer but, in a sense -- HIS HONOUR: Take as long as you like, but it has got to deal with that crucial issue. ZAHRA: It is an important platform. I will address further on that connection." 39 The offender claimed to have been happy that evening with all three children. He claimed no memory of any disagreement with his aunt or his then current partner, nor any recollection of how much alcohol he had consumed, nor any discussions with his mother. In evidence, there occurred the following questions and answers:- "Q. Mr. Merritt, do you know what your state of mind was at the time that you killed your children? A. No. Q. Can you offer any explanation as to why you killed your children? A. No. Q. You have been in custody now for some time? A. Yes. Q. Have you thought about what in fact had happened? A. Yes. Q. Have you attempted to get some understanding of what your state of mind was at the time? A. Yes. Q. What do you believe your state of mind was? A. That I was upset. I was just bottling things up all the time. Q. What were you bottling up? A. Everything, not being able to see my children all the time, losing my job, my car. HIS HONOUR: Q. Sorry, what about the car? What happened about the car? A. I had an accident in my car and lost it. … Q. Were there any other matters? I interrupted you when you referred to the car. Were there any other matters that you were taking into account that were bottled up inside? A. No. Q. The disapproval of your aunt? A. Yes, sorry. ZAHRA: Q. What do you think affected you about that? A. Previously I had spoken to her on the phone and asked her when she would next be in Sydney, if she wanted to see my kids and we ended up having an argument on the phone and that made me feel really bad and I thought, 'What's happening? All I want to try and do is be a good father and – and nothing seems to work'. HIS HONOUR: Q. Was there some discussion concerning being a failure as a father? A. To the point where she – she turned around and she got angry with me or explained to me that it's not good to – to be a father of three children to three different mothers. I should be more like a normal family and have three children to one mother. ZAHRA: Q. Do you recall how you reacted to that? A. Yeah, I cried on the phone." 40 The offender gave evidence that when he had to take the kids home (from the exercise by him of access):- "I would think, 'What have I done wrong? Why – why can't I have my children every day? Why can't I be a normal father, be able to see – wake up with my children, go to sleep with my children, more than once a fortnight'." 41 He gave evidence that he had considered himself, at times, to be a failure; that he was unable to come to grips with his problems that kept building up and had bottled them up. He claimed to be suicidal at about the time that he killed his children and had damaged his car. He was asked how he now felt concerning what he had done to his children. He said:- "Nothing I ever say or do for the rest of my life will ever make up for what I have done. I have got to be punished. As to whether – whatever sentence the judge hands down is – is not going to be any more than what I have to live with every day, knowing that it's my fault, I am responsible." 42 Dr. Allnut was called to give evidence and confirmed on oath the material in his reports. He described the offender as having a depressed mood to the extent that he suffered problems with energy and concentration which included periods of suicidal thoughts. He did not doubt that the offender was telling the truth when he said that he could not talk about the killing. When asked about the ability of a person suffering from such a depressed mood to control their actions when evidencing increased irritability, he pointed out that "you do not lose your ability to control your actions, but you may be more likely to respond impulsively to something". He referred to the ingestion of alcohol as tending to aggravate negative emotions and the offender seeing matters in more negative terms and behaving in a more impulsive way. 43 The doctor was cross-examined by the Crown concerning the doctor having spoken to the offender now a number of times over a lengthy period of time and having made enquiries amongst the offender's friends and family. The following question and answer were given in evidence:- "Q. None of them could shed any light upon what led him to commit these acts? A. No. HIS HONOUR: Q. And I gather, Dr. Allnutt, you can't either? A. I am very limited in the ability that I can shed light in this case, your Honour. Q. You have referred to matters that might, in combination, potentially have produced such a depressive mood as might have been one of the factors responsible? A. That's correct. Q. That is about as far as you can go? A. Yes, that's correct." 44 On all of this material, I am left, therefore, with very little information on which to attempt to draw any conclusion as to why the offender acted in the way in which he did to commit these abominable crimes. 45 It was accepted, however, by the Crown that there was no such evidence as would affirmatively establish future dangerousness (transcript 26 July 2002 – p.3; see The Queen v. Veen (No. 1) (1978-79) 143 CLR 458 and The Queen v. Veen (No. 2) (1986) 161 CLR 158). It is common ground that I should accept that the offender has pleaded guilty to these offences at the earliest possible occasion, having regard to the necessity to investigate as much as was possible his mental state and motivation. It is common ground also that the offender has manifested a high degree of contrition and remorse. 46 I turn to the provisions of the Crimes (Sentencing Procedure) Act 1999 to consider what course the statue law requires me to take in these circumstances. It is to that aspect of this sentence that the extensive written submissions to which I have referred have been addressed and it is that aspect of the sentencing task that has given me much cause for anxious deliberation including during the lengthy period subsequent to the receipt of the written submissions and whilst awaiting the notification from the parties, which was delayed for some time, that no further evidence or submissions were to be provided. 47 The Crown submits that the acts of the offender in taking the lives of his three children for no discernible reason were willed and intentional acts of multiple murder. It is submitted he was fully responsible for his actions both factually and legally. The circumstances in which the offences were committed, their objective seriousness, and the absence of any subjective, or other circumstances which might have operated in mitigation of sentence it is said, require sentences of imprisonment of life. 48 On behalf of the offender, Mr. Zahra, SC. submits that there was no premeditation or planning and that the offences were all committed in one short spontaneous burst of criminality at a time at which the offender's ability to control his actions must have been to some extent impaired, considering that the conduct in which he engaged in killing his children was so dramatically different in its emotional nature from the way in which he had acted towards the children otherwise. 49 Section 22 of the Crimes (Sentencing Procedure) Act 1999 requires me to take into account the early plea and, if not passing a lesser penalty because of it, to give my reasons. Should I otherwise be required by application of the criteria in s.61(1) of that Act to pass sentences of life imprisonment, I do not apprehend that the fact of such early pleas in itself would necessarily operate to require mitigation of otherwise appropriate penalties, notwithstanding any willingness to facilitate the processes of justice or the utility of such pleas even when accompanied by contrition and remorse. 50 Having regard to s.24 of the Act, the sentences will commence on 2 September 2001, the day of arrest. 51 The statutory provisions applicable are as follows:- 1. Section 19A of the Crimes Act 1900:- "(1) A person who commits the crime of murder is liable to imprisonment for life. (2) A person sentenced to imprisonment for life for the crime or murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of s.21(1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)." 2. Section 21 of the Crimes (Sentencing Procedure) Act 1999:- "(1) If by any provision of an Act an offender is made liable to imprisonment for life, a court may nevertheless impose a sentence of imprisonment for a specified term. … (4) The power conferred on a court by this section is not limited by any other provision of this Part. (5) This section does not limit any discretion that the court has, apart from this section, in relation to the imposition of penalties." 3. Section 61 of the same Act:- "(1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. … (3) nothing in subsection (1) affects s.21(1)." 52 There is a tension between s.21 and s.61 having regard to s.61(3) to which I referred in Regina v. Petrinovic [1999] NSWSC 1131. In Regina v. Harris (2000) 50 NSWLR 409, the Court of Criminal Appeal held:- "An obvious tension exists between s.61(1) and s.61(3). Greg James, J. in Petrinovic (1999) NSWSC 1131 identified that tension in relation to s.431B(1) and s.431B(3), but concluded that where the case for sentence met the criteria specified in s.431B(1), then a life sentence was mandated. This may have been what was intended but that interpretation does not sit very happily with the words of exception contained in the earlier s.431B(3) and now contained in s.61(3)." 53 Thus, even if the court is satisfied "that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence", there remains a discretion to sentence an offender to less than life. That discretion must, however, be exercised judicially and applying the legal principles enunciated in such cases as Regina v. Rose (CCA, unreported 11 October 1999); Harris (supra) and Regina v. Miles [2002] NSWCCA 276. Regard may be had to the number of offences (Harris (supra at 94)). 54 In the case of multiple offences, the principles set out by the High Court in Regina v. Pearce (1998) 194 CLR 610 regarding the necessity to pass sentences which each are appropriate for each crime charged and then to consider the appropriateness of concurrence or cumulation or any degree of it having regard to the principle of totality must be applied. 55 The Crown submissions contend that:- "1. The maximum penalty prescribed for the crime of murder is imprisonment for life: s.19A Crimes Act 1900. However, a court has a discretion to impose a sentence for a specified term: s.21(1) Crimes (Sentencing Procedure) Act 1999. 2. The real question arises as to whether the crime is so heinous that a life sentence should be imposed either by employing the common law (the so-called 'worst type of case') or by reason of statute: s.61(1) Crimes (Sentencing Procedure) Act 1999." 56 Mr. Zahra, SC. for the offender contends that the killings do not warrant the maximum penalty or that the discretion that it should not be passed should apply. 57 Objectively speaking, these killings constitute criminality of the highest order and that criminality does not appear to be mitigated in any significant way by any subjective feature of the offender. These killings meet the criteria set out in s.61(1). True it is that he might have been depressed and suffering from feelings of self-doubt and frustration. True it is also that the offender may have ingested a substantial quantity of alcohol. But those matters provide no mitigating reason for his acting in the way he did to deprive his children of their lives. These are plainly crimes in the worst class of case (Ibbs v. The Queen (1987) 163 CLR 447 at 451-452) such that their particular features are of very great heinousness. I can see no facts mitigating the objective seriousness of the killings when applying the test set out in Regina v. Twala (CCA, unreported 1 November 1994). 58 In such cases, it is to be expected that the maximum penalty will be imposed (Harris (supra [100]) and this because the level of culpability is so extreme as to displace the effect of mitigating subjective features (Harris (supra [103]-[105]). 59 Mr. Zahra submits that by comparison with the circumstances in Regina v. Veleski (Dunford, J. unreported 26 September 1997); Regina v. Park (Sperling, J., 3 August 2000); Regina v. Cikos (Dunford, J., 9 February 2002) and Regina v. Cheatham (Grove, J., unreported 16 July 2001), these killings are not so culpable as to fall within s.61 or are such that the discretion to pass a lesser sentence than life should be exercised. Mr. Zahra contended that the views of the judges who decided those cases would mind me to treat these as crimes deserving less than life sentences. I do not see that the views expressed in the circumstances of those cases assist me on whether the facts of this case meet the statutory criteria. 60 Emphasis was placed on the prospect of rehabilitation, notwithstanding the Court of Criminal Appeal in Regina v. Garforth (CCA, unreported 23 May 1994) held that matter should not of itself mitigate the punishment for offences to which the s.61 criteria applied if the circumstances of the offence reached such an extreme level of culpability. 61 In support of his submissions, Mr. Zahra referred me to numerous cases said to illustrate circumstances of particular heinousness to compare with the circumstances in this case. He referred, in particular, to the absence of planning, the absence of prior abuse or aggression to the children and the immediate confession and remorse. He referred to the decision of the CCA in Miles (supra at [201]-[204]):- "This takes me to a primary legal argument on behalf of the Crown. It was argued that the terms of s 61(1) are such that if the criteria therein set out are satisfied then subjective circumstances can have no relevance. This submission must, in my view be rejected. It is not consistent with well established sentencing principles and cannot stand with the judgment of this Court in Harris . In that case the Court considered the subjective circumstances at pages 425-426 and at par 105 concluded: 'For the reasons already mentioned, I am of the view that the present case is one that answers this description with the consequence that the subjective circumstances could not displace the need for life sentences.' The reference by Wood CJ at CL to "this description" is a reference to remarks by Abadee J in R v Fernando (1997) 95 A Crim R 533 at 544-545 in which his Honour referred to the fact that in some cases falling within the category of the worst class of cases, there is little utility in considering the prospects of rehabilitation and the subjective circumstances generally. In other words the appalling objective circumstances may completely overwhelm whatever subjective circumstances there may be, which include the prospects of rehabilitation. There is a two stage process involved in determining whether a life sentence is mandated. The Court must first determine whether on the objective facts the level of culpability is so extreme that it warrants the maximum penalty. The Court must then determine whether the subjective factors are capable of displacing the prima facie need for the maximum penalty." 62 I accept that I should proceed in accordance with those principles. I accept I have a discretion not to impose life sentences and am fully conscious of the appalling effect such sentences have, particularly where they are to be served, at least in part, on strict protection and thus under the most onerous circumstances. I am entirely conscious that the offender was only 30 years of age at the time of the commission of these offences and hence if sentenced to life could expect to spend in the order of 40 years in custody. 63 However, for crimes of this culpability applying the principles in Pearce (supra) and the totality principle, determinate sentences, even if partly concurrent, would be expected to give a total sentence of very great length, even approaching the expected period of custody involved in the life sentence although accompanied by a non-parole period. 64 I share the view of the Court of Criminal Appeal that the power to impose a non-parole period in an appropriate case, and this might be one such case, is highly desirable (Harris (supra) at [123]-[134]). 65 But it would be an error on my part to decline to impose life sentences otherwise required by principle and law so as to be able to impose a non-parole period (see Harris (supra) at [106]-[122]). 66 I have closely examined the numerous cases to which I have been referred and the views of other judges expressed in them. I have, however, concluded that the application of principle and law requires I hold that these are crimes in which "the appalling objective circumstances completely overwhelm whatever subjective circumstances there may be which include the prospects of rehabilitation" (Miles (supra) at [203]), so that I am required on each charge to sentence the offender to life imprisonment. 67 Craig Andrew Merritt on each of the three counts in the indictment, I sentence you to life imprisonment to date from 2 September 2001, the date on which you went into custody. ********** Last Modified: 12/05/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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