R v Merrin [2007] NSWCCA 255

Reported Decision: 174 A Crim R 100

New South Wales Court of Criminal Appeal

CITATION: R v Merrin [2007] NSWCCA 255

HEARING DATE(S): 22/08/2007

JUDGMENT DATE: 28 August 2007

JUDGMENT OF: Giles JA at 1; Howie J at 2; Fullerton J at 63

DECISION: The appeal is allowed. The sentences imposed by Acting Judge Moore are quashed. In lieu the following sentences are imposed: Counts 2, 3 and 4 - Fixed terms of 7 months each from 12 December 2005 to expire on 11 July 2006; Count 5 - Fixed term of 10 months from 12 March 2006 and to expire on 11 January 2007; Count 1 (Form 1) - Non-parole of 14 months to commence on 12 July 2006 and to expire on 11 September 2007 with a balance of term of 8 months; Counts 8 and 9 - Fixed terms of 15 months each to commence on 12 June 2008 and to expire on 11 September 2009; Count 7 (Form 1) - Non-parole period of 18 months from 12 June 2008 with a balance of term of 2 years and 5 months. The respondent is eligible to be released to parole on 11 December 2009.

CATCHWORDS: Criminal Law - Sentence - Crown Appeal - Break, enter and steal offences - Concurrent sentences - whether appropriate for multiple repeat offending - standard non-parole period - failure to take into account - youthful offender - whether sentences manifestly inadequate.

LEGISLATION CITED: Crimes Act 1900 - s 112(2) Crimes (Sentencing Procedure) Act 1999 - s 54B

R v Harrison [2001] NSWCCA 79 R v MAK and MSK [2006] NSWCCA 381, (2006) 167 A Crim R 159 Pearce v The Queen (1998) 194 CLR 610 R v Harris [2007] NSWCCA 130 Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 R v Wall [2002] NSWCCA 42 CASES CITED: Markarian v The Queen (2005) 79 ALJR 1048 R v Hammoud (2000) 118 A Crim R 66 Johnson v The Queen (2004) 78 ALJR 616 R v Harris [2007] NSWCCA 130 Marshall v R [2007] NSWCCA 24 R v Mostyn (2004) 145 A Crim R 304 R v Way (2004) 60 NSWLR 168 R v Cunninghan [2006] NSWCCA 176