District Court New South Wales Medium Neutral Citation: R v Greg Merritt [2019] NSWDC 713 Hearing dates: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of five years 3 months with a non parole period of three years. Catchwords: SENTENCING - Relevant factors on sentence -multiple offences - victim vindication – retribution - young offender - history of profound disadvantage – never had the opportunity to live a normal community life - finding of special circumstances. Legislation Cited: Crimes (Administration of Sentencing) Act 1999 Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Henry v R (1999) 46 NSWLR 346 Legge v R [2004] NSWCCA 244 R v Herring (1956) 73 WN (NSW) 203 Category: Sentence Parties: Greg Merritt (the offender) Director of Public Prosecutions Representation: Counsel: Mr R Steward (for the offender) Solicitors: Legal Aid NSW (for the offender) Ms A Bird (for Director of Public Prosecutions) File Number(s): 2018/00390882 SENTENCE – ex tempore revised 1. Greg Merritt was born in May 1998. He is an Aboriginal Australian who although still young has spent most of his life in gaol and juvenile institutions. The material before me indicates that he has never really lived a normal community life. When he was released from gaol in September 2018, he was not ready to lead a normal community life. That is evidenced by the facts that are presently before the Court. 2. It is important to note that CCTV did not prevent these crimes. The almost inevitability of the offender's DNA being left and discovered did not prevent these crimes. The heavy sentences imposed by courts for armed robbery offences did not prevent these crimes and with great respect the guideline judgment of the Court of Criminal Appeal and its implementation since 1998 did not prevent these crimes. 3. On 10 December 2018, he, together with his co-offender (a woman who is to be sentenced in 2020), came into possession of registration plates taken from a blue Toyota Camry in Albion Park. Not long after in Albion Park Rail, a blue Toyota Orion was stolen. Soon after, Merritt was observed on CCTV in that car at a Shell service station. The following day a series of crimes were committed. 4. At about 9.40, on 11 December 2018 a young university student arrived at Wollongong University to take an exam. He parked his VW Golf close to the university. As he left the car, he saw the previously stolen blue Toyota Orion parked a short distance from him. It was being driven by the co-offender Merritt got out of the Orion and ran towards the student. He hurdled a road safety barrier and stopped in front of the student. 5. He pulled out a Taser and used it on his victim to the lower abdomen saying, "Give me your keys brother". His victim handed over the keys. Merritt then demanded his wallet. His victim replied he did not have it with him. Merritt said "As if" and applied the Taser to him again. Merritt said "Take off your chain. Give me your chain". His victim's hands were shaking so much he was not able to unclasp it. Merritt undid the necklace and took it. 6. His co-offender was yelling out from the Toyota, encouraging him to continue. He ran to the VW Golf and took it. He and the co-offender then drove off in convoy. Security and police were soon at the scene. Not long afterwards, another car had its plates stolen. 7. The following day at 7.45 in the morning, another victim, a man, parked his Toyota Kluger in Gipps Street, Gwynneville. Merritt and his co‑offender were sitting in a black car parked nearby. The victim sat outside the shop and then went into the shop to buy a drink. He made the mistake of leaving his wallet and keys on the table outside. The co‑offender entered the store and ordered food but she left before the food it was ready. She was caught on CCTV taking the keys. 8. A short time later Merritt took the Toyota Kluger, presumably using the keys that had been taken. In the car was the victim's briefcase, which contained at least $1,500. 9. Between that date and 13 December, the facts indicate a number of other cars lost their number plates and a number of those matters were linked to this offender and/or his co-offender by DNA, following DNA examination. 10. On 19 December 2018, another victim, a woman, was sitting on the front of her home on Lawrence Hargrave Drive, Thirroul. She went inside leaving her purse out the front. Merritt stole her purse, which contained cards, a packet of cigarettes and a lighter. He left one cigarette behind. Soon after his co-offender used the card at the local IGA. 11. On 19 December 2018 Merritt was arrested. He has been in custody ever since. 12. It is worth repeating that to rob someone and use a weapon on them is a crime of particular seriousness. Mr Steward who appears for the offender pointed out, that perhaps it would have been more terrifying if a gun or knife had been used, but to threaten someone with a Taser and then apply it to them twice, shows a willingness to inflict pain on others for very modest gain. Such behaviour reflects comments made repeatedly by the Courts that robbery while armed is not just a crime involving property. It is a crime against people and it is a crime against the community. 13. Everyone should be able to go out in our community without expecting someone to come up and Taser them and take their property. When people do that, there is a general community expectation reflected in the maximum penalty, here of 25 years imprisonment, that judges will act to punish such activity and exact appropriate retribution. 14. For most people, except those lucky enough to own a home and/or have a mortgage, their most precious and most valuable possession is their car. Most of us need our car for work or study, or just to get around. To have someone take that car not knowing if it will ever be recovered or to use that car knowing that it has been stolen, is a serious offence in itself. 15. Number plates are ubiquitous, but their loss can cost. They cost time to replace. They cost money to replace. 16. Turning to the stealing from the dwelling: the woman was having her morning cigarette at her home, she went inside and returned to find that someone had helped themselves to her property. So too the gentleman at the café in Gwynneville. If we are to live together as a community, we have to trust others. Where property is stolen in such circumstances sometimes criticism is made that the victims are naïve or too trusting. But, the alternative is that we learn to trust no one at any time. We cannot put something down when distracted without the fear that someone will help themselves to it. Without trust we keep a close hold of everything we own; we take everything into our homes with us, and we lock and bar our homes against others. 17. If a community exist in as state of fear and distrust of it is hardly a community worth living in. It is for that reason that significant penalties are imposed by those who breach the trust that everyone should have in each other and the community. It is for those reasons that each of the crimes committed from the least to the most serious is viewed significantly by the Court and why in all the circumstances custodial sentences should be imposed. 18. There must be a degree of separate punishment for the discreet offences, but in circumstances like this, we simply do not add one on top of the other. I have to indicate an appropriate sentence for each offence and structure them so that the total sentence, or the aggregate sentence, is just an appropriate to all the crimes committed by Merritt. There would be little public confidence in the administration of justice if someone got some sort of discount for multiple offending. Here, simple accumulation would result in a harsh crushing sentence; where a harsh and crushing sentence is not in all the circumstances justified. I also have to recognise the fact that for every month, every year in gaol, the sentence has a harsher impact on Merritt. While some in the community might think it appropriate and justified, harsh punishment will do little to prevent reoccurrence of crimes by Merritt if he comes out of gaol without hope, without prospects for the future and without the assistance that he so desperately needs. 19. Sentences and appropriate punishment involve retribution. They must consider rehabilitation and community protection. While the community can be protected from Merritt for the period he is in custody, he must be released and if he is released in a worse position than when he went in, all that is going to happen is he is going to commit more crimes and go back to gaol. 20. I do not want him committing crimes against anyone in the community ever again. I am sure at the moment he would prefer not to. He would prefer to be out living a life in the community. He will have to spend a period in custody to reflect the seriousness of what he did. . 21. That sentence can be moderated because the background material before me indicates that Merritt has had none of the advantages that most in the community expect. His mother had significant drug problems. The material before me, which is uncontroversial and is reflected in his record, even though not the subject of sworn evidence, indicates that that from when very, very young he was exposed to the use and abuse of illicit drugs. He says that he started using methylamphetamine, ice, with his mother when he was a young teenager. 22. The use and abuse of illicit drugs and alcohol was a constant in his young life and is part of his childhood memory. He has been in and out of juvenile detention. He has never had an opportunity to properly engage with schooling or engage in education programs to any great extent while in juvenile detention. It appears from all the material before me that in his short stints in adult gaol, he is yet to engage in any form of drug rehabilitation program. Such a program is sorely needed. 23. If he had committed his offences other than in the Illawarra, he may have well qualified for the highly regarded Compulsory Drug Treatment Program. But again I note that the people in the Illawarra are disadvantaged by not having offenders able to access that program. Ms Gellin's report which is comprehensive, concludes: "His current social and legal problems stem from childhood adversity, the deficit in executive function exacerbated by his chronic addiction to cannabis and ice. He is not a psychologically resilient man. He is unable to self-direct his efforts successfully to utilise family and social supports". I interpose, because none are available to him in this community. "He does require external forms of formal support and assistance. His disturbing psychosocial history is aggravated by his mal-adaption to incarceration, which has further compromised his functional social and interpersonal skills. 1. She refers there to a history that he is becoming well adjusted to the security that custody offers and less capable as a consequence of leading a law abiding life in the community. The consequences of not breaking the cycle of crime, gaol, crime and crime, custody, crime interspersed when in the community with excessive drug use are dire. If efforts are not made by Merritt with help from Community Corrections and State Parole and others his situation is bleak. Help must include provision of housing, courses such as alcohol and other drug therapy, perhaps enrolment in the young offender's program, and the Ngarayura program. 2. Merritt has complex needs. He will require intensive case management from experienced and proactive Aboriginal caseworkers. Even with such support I could not be confident that he would not re-offend. Ordinarily that would cause the Court to simply impose a sentence that removes him from the community for as long as possible. 3. As the High Court eloquently set out in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, where a person has been raised as the evidence by me indicates, it can be mitigate his sentence because the person's moral culpability is likely to be less than the culpability of an offender whose formative years were not so marred. The effects of such profound deprivation do not diminish over time and should be given the full weight of determining the sentence. 4. A background such as that lived by Merritt has left a mark and it has compromised his capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending. It can impact in the sense of requiring a harsher penalty. In this case, the countervailing factors, of his youth and immaturity and the possibility that he will mature during the course of the sentence, apply. Every effort should be made. Here, I will structure the sentence so that after he serves the minimum of the objective seriousness of his crimes and the purposes of sentencing require he can be given an opportunity of proving himself in the community, should the State Parole Authority feel it is appropriate, applying the test in 136 of the Crimes (Administration of Sentencing) Act 1999, to release him. 5. I am indebted to both counsel for their comprehensive submissions, which fully ventilated the Henry guideline and how this matter related to it: Henry V R (1999) 46 NSWLR 346. I note however it is a guideline, not a tram line: Legge v R [2004] NSWCCA 244. The decision in Henry does however indicate the need for retributive and harsh punishment and the need to vindicate the dignity of each of the victims, particularly that of the armed robbery. 6. The community does not and will not tolerate such crimes. There is a community expectation the offender will suffer appropriate punishment. Sometimes the term retribution is interchangeably with deterrence. As Street CJ said in R v Herring (1956) 73 WN (NSW) 203, at 205: "I think the proper sentence to impose to mark this Court's view of the seriousness of the crime, and to let other wrongdoers know the retribution which will fall upon them if they commit similar crimes." 1. I will impose an aggregate sentence taking all those matters into account I will indicate a sentence for each of the 13 matters. There will be a finding of special circumstances to give an opportunity for Mr Merritt to engage in programs and be tested in the community. Each of the indicated sentences reflect a 25% reduction for the early plea of guilty. Orders 1. For the robbery while armed with dangerous weapon offence I indicate a sentence of four years and one month imprisonment. 2. For the take & drive conveyance w/o consent of owner, the VW Golf, I indicate a sentence of one year and one month imprisonment. That sentence will be substantially concurrent with the first count. 3. For the take & drive conveyance w/o consent of owner, the Toyota Kluger, I indicate a sentence of one year and one month imprisonment. 4. For the larceny from the Kluger I indicate a sentence of one year and one month imprisonment. There can be substantial concurrence between those two counts. 5. For the related s 166 matters being carried in conveyance taken w/o consent of owner, I indicate a sentence of nine months' imprisonment. 6. For the steal property in dwelling-house, from Thirroul, I indicate a sentence of one year and one month imprisonment. 7. For each of the remaining larceny offence I indicate a sentence of three months' imprisonment with substantial concurrence. 8. The total aggregate sentence in this matter is five years and two months. There will be a non-parole period of three years reflecting a substantial finding of special circumstance. The sentence will commence on 19 December 2018. Mr Merritt will be eligible for consideration for release to parole not before 18 December 2021. 9. There will be a parole period of two years and two months. It is anticipated that some of that period may be in supervised residential accommodation in the community, but it is for the State Parole Authority to decide whether and when he should be released. HIS HONOUR: Do you understand that Mr Merritt? OFFENDER: Yes your Honour. HIS HONOUR: If you continue committing offences in gaol you can start putting that date back further and further. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2020