R v Merritt

R v Merritt - [2004] NSWCCA 19 - NSWCCA 2003 case summary — Zoe

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CATCHWORDS : CRIMINAL LAW - applicant charged with 3 counts of murder - pleas of guilty - 3 sentences of life imprisonment - whether sentences manifestly excessive - whether subjective circumstances enabled or required trial judge to impose lesser sentences - relevant principles concerning the application of s 61(1) Crimes (Sentencing Procedure Act) 1999. Crimes Act 1900 - s 19A, 431B LEGISLATION CITED : Crimes Amendment (Mandatory Life Sentences) Act 1996 Crimes (Sentencing Procedure) Act 1999 - s 21, 21A, 22(1), 44, 61, 61(1), 61(3), Criminal Appeal Act 1912 - s 6(3) House v The Queen (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Olbrich v The Queen (1999) 199 CLR 270 Pearce v The Queen (1998) 194 CLR 610 Regina v Cheatham NSWSC, Grove J, 6 July 2001 Regina v Cheatham [2001] NSWSC 580 R v Cheatham [2002] NSWCCA 360 Regina v Cocking [1999] NSWCCA 311 Regina v Cikos [2001] NSWSC 35 Regina v Fraser [2004] NSWSC 53 Regina v Folbigg [2003] NSWSC 895 Regina v Garforth, Unreported, NSWCCA 23/05/94 Regina v Harris (2000) 50 NSWLR 409 Regina v Hill [2003] NSWCCA 128 Regina v Israil [2002] NSWCCA 255 Regina v Kalajzich (1997) 94 A Crim R 41 Regina v Kelly (1993) 30 NSWLR 64 CASES CITED : Regina v Khouzame [2000] NSWCCA 505 Regina v Miles [2002] NSWCCA 276 Regina v Monroe (2003) 56 NSWLR 652 Regina v Morgan (1993) 70 A Crim R 368 Regina v O'Donoghue (1988) 34 A Crim R 397 Regina v Oliver (1980) 7 A Crim R 174 Regina v Park NSWSC Sperling J, 3 August 2000 Regina v Park [2003] NSWCCA 142 Regina v Penisini [2003] NSWSC 892 Regina v Petrinovic [1999] NSWSC 1131 Regina v Salameh NSWCCA 9 June 1994 Regina v Thomson and Houlton (2000) 49 NSWLR 383 Regina v Twala NSWCCA 4 November 1994 Regina v Vachalec [1981] 1 NSWLR 351 Regina v Velevski NSWSC, Dunford J, 26 September 1997 Regina v Visconti [1982] 2 NSWLR 104 Skinner v The Queen (1913) 16 CLR 336 Veen (No. 2) v The Queen (1988) 164 CLR 465 PARTIES : Regina Craig Andrew Merritt FILE NUMBER(S) : CCA 60262/03 COUNSEL : G Smith SC (Crown) T Game SC SOLICITORS : C K Smith (Crown) S E O'Connor

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Andrew Merritt pleaded guilty to three counts of murder. The three victims were his children, by different relationships. He seeks leave to appeal against the sentences of life imprisonment which were imposed on each count. The issue on appeal is whether his Honour erred in concluding that he should impose a life sentence, pursuant to s 61 of the Crimes (Sentencing Procedure) Act 1999, in relation to each offence, and in concluding that there were no "subjective circumstances" which enabled, or required him, to impose any lesser sentence. HELD , per Wood CJ at CL (Tobias JA and Hidden J agreeing), granting leave to appeal and setting aside the sentences below: 1) Given its legislative history, and the course of the common law, section 61(1) of the Crimes (Sentencing Procedure) Act 1999 should be given a purposive application: Veen (No. 2) v The Queen (1988) 164 CLR 465 at 476; Regina v Harris (2000) 50 NSWLR 409; Regina v Miles [2002] NSWCCA 276 considered [46-51]. (a) The primary focus of the legislation is the extremity of the offender's culpability. The section should be interpreted as requiring a sentence of life imprisonment if the culpability is so extreme that the community's interest in any combination of "retribution, punishment, community protection and deterrence" could only be met through the imposition of a life sentence: [42], [52]-[54] 2) The sentences were manifestly excessive. This case called for determinant sentences, albeit substantial sentences, not life sentences. [73], [77] (a) Having regard to the desirability for consistency and predictability in sentencing, it was appropriate for reference to be made to the general sentencing patterns concerning offences of murder committed by a parent of his or her children, reflected in: R v Velevski NSWSC, Dunford J, 26 September 1997; Regina v Park NSWSC Sperling J, 3 August 2000; Regina v Cikos [2001] NSWSC 35; Regina v Cheatham [2001] NSWSC 580; Regina v Folbigg [2003] NSWSC 895; Regina v Fraser [2004] NSWSC 53. [63]-[65], [67] (b) The sentencing judge placed undue significance on the inability of the applicant to explain his offences, and gave insufficient weight to his depressed state of mind at the time of their commission. [73] The mental state of the offender is always of considerable relevance for the assessment of the degree of objective culpability involved in his or her offence, even though that state may not have been of the nature, or of the degree, that would have provided a defence or excuse at law: Regina v Israil [2002] NSWCCA 255 per Spigelman CJ at [23]; Regina v Hill [2003] NSWCCA 128, Regina v Cheatham NSWSC, Grove J, 6 July 2001; Regina v Fraser [2004] NSWSC 53, Howie J. [55]-[56] (c) The applicant's gravely serious objective criminality was tempered by the particular circumstances in which the crimes occurred, in particular his condition of depression. [71]-[72] (d) The applicant's subjective circumstances were favourable: he was young, had a relatively minor prior criminal record, he demonstrated significant remorse and contrition, he pleaded guilty at the earliest opportunity, and he had favourable prospects of rehabilitation, and it was accepted that he did not present as an ongoing danger to the community. [74]-[75]

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Wednesday 3 March 2004 Regina v Craig Andrew Merritt Judgment 1 TOBIAS JA: I agree with the orders proposed by Wood CJ at CL and with his Honour's reasons. I only wish to add a comment with respect to his Honour's interpretation of s 61(1) of the Crimes (Sentencing Procedure) Act 1999. 2 In [42] of his judgment his Honour sets out four possible interpretations of the section. In adopting the third of those possibilities his Honour said: (at [52]) "…I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence that can be fixed is one of imprisonment for life" 3 In the application of this test, it is possible (as his Honour illustrates in [53] of his judgment) that one or more of the statutory indicia may be of less significance than the other or others or that one or more of them may be inapplicable. This is so in the present case due to the absence of any finding by the trial judge of future dangerousness or need for future community protection. 4 Notwithstanding the absence of one or more of the statutory indicia, the presence and level of significance of the other or others may still lead to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life. 5 Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated (subject always to s 61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence. 6 It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be attained. On the other hand, as his Honour observes in [53] of his judgment, absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree. 7 As his Honour also observes, it is the combination of the statutory indicia established on the evidence to which regard must be had. It is only where the significance of those indicia, taken in combination, leads inevitably to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life, that such a sentence must be imposed. 8 WOOD CJ at CL: On 12 April 2002, the applicant pleaded guilty to three counts of murder. The offences were committed in the early hours of 2 September 2001, and the three victims were the applicant's children, Jackson, Taylah and Mikaylah. The applicant was, at the time of those offences, aged 30 years. 9 On 4 December 2002 Greg James J sentenced the applicant to life imprisonment on each count, to date from 2 September 2001. The applicant seeks leave to appeal against those sentences. 10 By reason of the nature of the offences of which the applicant stood convicted, it was necessary for his Honour to have regard to section 19A of the Crimes Act 1900 (NSW), and sections 21 and 61 of the Crimes (Sentencing Procedure) Act 1999. 11 S 19A of the Crimes Act provides: " 19A Punishment for murder (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 of murder is to serve that sentence for the term of the person's natural life. (3) Nothing in this section affects the operation of section 21 (1) of the Crimes (Sentencing Procedure) Act 1999 (which authorises the passing of a lesser sentence than imprisonment for life)..." 12 Section 21 of the Crimes (Sentencing Procedure) Act relevantly provides: " 21 General power to reduce penalties (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." 13 Section 61 of the last mentioned Act provides: " 61 Mandatory life sentences for certain offences (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 section 21 (1)." 14 Additionally, in sentencing the applicant it was necessary for his Honour to give consideration to two further provisions of the Crimes (Sentencing Procedure) Act, which are of general application, namely s 21A and s 22(1). 15 S 21A of the Act, at the relevant time, provided: "(1) In determining the sentence to be imposed on an offender, a court must impose a sentence of a severity that is appropriate in all the circumstances of the case. (2) For that purpose, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the case, (b) if the offence forms part of a course of conduct consisting of a series of criminal acts - that course of conduct, (c) the personal circumstances of any victim of the offence, including: i) the age of the victim (particularly if the victim is very old or very young), and ii) any physical or mental disability of the victim, and iii) any vulnerability of the victim arising because of the nature of the victim's occupation, (d) any injury, loss or damage resulting from the offence, (e) the degree to which the offender has shown contrition for the offence: i) by taking action to make reparation for any injury, loss or damage resulting from the offence, or ii) in any other manner. (f) the need to deter the offender or other persons from committing an offence of the same or a similar character, (g) the need to protect the community from the offender, (h) the need to ensure that the offender is adequately punished for the offence; (i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender, (j) the prospect of rehabilitation of the offender. … (4) The matters to be taken into account by a court under this section are in addition to any other matters that are required or permitted to be taken into account by the court under this Act or any other law…" 16 S 22(1) of the Act provides: "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed." 17 In his remarks on sentence, after referring to s 61(1) of the Crimes (Sentencing Procedure) Act 1999, his Honour found: "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 4 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])."

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Facts 21 The circumstances in which the murders occurred were recorded in an agreed statement of facts. They were summarised by his Honour as follows: "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 [Merritt] 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".

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... 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.'" 25 Additionally, his Honour noted that: "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'." 26 The reference to losing his job was to the loss of his licence and job as a security guard, which had followed upon a conviction for an offence of assault occasioning actual bodily harm. Otherwise his criminal record was short and of a minor nature. 27 His Honour noted, in relation to the applicant's initial presentation to Dr Allnutt, that he had denied any recollection of having any disturbance in mood, unusual thoughts or perceptions, and that he had also denied any thoughts of harming the children. He had no recollection of what had occurred between the time of bathing the children and the following morning. In summary, he had been unable to provide to Dr Allnutt any account of how the offences occurred, or of his motivation. 28 His Honour continued: "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 or 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."

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