Director of Public Prosecutions v Bloomfield
[2023] VCC 427
•12 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL JURISDICTION
CR-20-01159
CR-20-01160
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN BLOOMFIELD LUKE MERRYFULL |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23 August 2023 | |
DATE OF SENTENCE: | 12 April 2023 | |
CASE MAY BE CITED AS: | DPP v Bloomfield & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 427 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL- LAW
Catchwords: sentence – rape-indecent assault-significant delay-rehabilitation-
combination sentence
Legislation Cited: Sentencing Act (Vic) 1991 s44
Cases Cited:R v Mill (1988) 166 CLR 59, Miceli (1998) 4 VR 588, Re Broes [2020]
VSC 128, The Queen v Merrett, Piggott and Ferrari [2007] 14 VR 392,
Duncan v The Queen [1983] 9 ACR 354, DPP v Keller (a Pseudonym) [2021] VSC334,
Boulton v The Queen [2014] 46 VR 308, Worboyes v The Queen [2021] VSCA 169,
Stafford v King [2022] VSCA 229, Queen v Mills [1998] 4 VR 235, The Queen v
Azzopardi & Ors [2011], DPP v Alsop [2010] VSCA 325, DPP v Leich [2003] 139 ACR
64, Jurisic[1998] 45 NSW, DPP v McInnes [2017] VSCA 374, DPP v Dalgleish [ 2015]
VCC 1352
Sentence: Bloomfield: Total effective sentence of 19 months’ imprisonment (time
served) and three-year community corrections order.
Merryfull: Total effective sentence of 19 months’ imprisonment (time
served) and a two-year community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Thomas | Ms B. Cunningham |
| For Mr S. Bloomfield | Mr R. Nathwani | Mr A. Tweedly |
| For Mr L. Merryfull | Mr R. Edney | Mr A. Tweedly |
HIS HONOUR:
1
Shaun Bloomfield and Luke Merryfull, on 23 August 2022 the jury found you,
Mr Bloomfield guilty of two charges of rape and one charge of sexual assault, and you, Mr Merryfull, were found guilty of one charge of rape.
2
The circumstances of these crimes, were succinctly set out by
His Honour Judge Mullaly in his sentence dated 10 April 2019. In essence they are as follows.
3 The circumstances that gave rise to these crimes were that you men and the victim were invited to a 21st birthday celebration of a mutual friend Sherry Much. The party was held on 2 April 2016. The victim planned to stay the night and she brought her swag to sleep in but in the end, she was invited to sleep in a caravan. Originally Ms Much was to sleep there as well, however, Ms Much and her boyfriend were able to sleep inside the house.
4 Prior to Ms Much and her boyfriend leaving the caravan for the house, a number of those at the party had come into the caravan, including you two men. The victim was lying on her bed in the caravan, as was Ms Much. You two men got onto the bed, either side of the victim. Others were there, or came into the van, skylarking before leaving.
5 Like all those at the party, the victim had been drinking. She was significantly affected by alcohol. At this point she was in the caravan in the early hours, now, of 3 April 2016 and what she simply wanted to do was fall asleep in that caravan to awake the next day.
6
After the other young party guests had left the caravan, you, Luke Merryfull, suggested that the three of you that is, that you, Luke Merryfull, you,
Shaun Bloomfield and the victim engage in sex as a threesome. I have no doubt that the jury accepted the evidence of the victim that the threesome was suggested by you, Luke Merryfull, and then immediately and clearly rejected by her. The victim made it clear to you both that she did not consent to any sex with the two of you at the same time in a threesome, or indeed any sex of any kind with either of you. She repeated no, to you, when you, Mr Bloomfield first started to touch her. What then occurred was first you, Mr Bloomfield put your hand on the victim's leg and then underneath her underwear. You then digitally raped the victim.
7 This was followed by you, Mr Merryfull, removing the victim's pants and underwear and committing penile rape. Your DNA was later detected on the swabs taken from the victim. Having ejaculated you, Luke Merryfull, then got up saying words to the effect, 'She's all yours now'.
8
These words are concerning in that they show a certain degree of callousness towards the victim, as merely an object for each of you in being able to have sex with, without her consent. After you, Luke Merryfull had left, you,
Mr Bloomfield, then sexually assaulted the victim by touching her - by having her touch your penis, before you then raped her by penile penetration. This penetration continued until she pushed you in the chest, causing you to wake up to yourself and getting off.
9 Both of you men left the party shortly after making your way back to your own homes. The victim was in considerable distress. She tried to contact friends seeking help. Although it was in the early hours of the morning, ultimately, a university friend of the victim from Geelong spoke to her. In that witness's evidence she outlined just how distressed and confused the victim was. As has been made clear, one of the more distressing aspects of this ordeal for the victim, arises because she considered both of you men as long-term friends, whom she could trust. Both of you comprehensively breached that trusted friendship by what you did.
10
The victim was able to get in contact with a Rosie Hutchins, who was in Balmoral and who had earlier been at the party. Eventually Rosie Hutchins and
Rosie Hutchins' mother came to the house to pick up the victim. Contact was made with the victim's mother and father. The victim spoke with the police later that day and had medical examinations. Both you men on your arrest, exercised your right to silence.
Gravity of offending
11 As to whether the jury may have considered that either of you held a genuine belief in the consent of the victim, but that belief was not based on reasonable grounds, thus resulting in a conviction, was canvassed before me. The prosecution have contended that what the victim said and did and given all the circumstances of the case, each of you must have known that she was not consenting but you went ahead and penetrated her nonetheless.
12 As His Honour Judge Mullaly stated,
'It is no easy task to determine to the criminal standard precisely each of your states of mind at the time of the penetration in that caravan in the early hours of April 2016'.
13 Plainly the jury rejected your evidence and found the third element of the crime of rape, to be proven beyond reasonable doubt. For my own part it would appear to me that the only explanation consistent with this state of mind, may be found in the amount of alcohol that each of you had consumed and in the evidence of good character both before and after the offending that has been adduced on your behalf.
14 In any event His Honour Judge Mullaly went on to say,
'Having the considerable benefit of seeing and hearing the victim, I am of the view that in particular, what the victim said in telling you men, "No, no way", and the things that she did in the difficult circumstances she found herself in, that is initially wedged between you two men, I am satisfied beyond reasonable doubt that this was not a case of you men genuinely believing that she was consenting. In my view each of you knew she was not consenting but you went ahead believing or hoping nothing would later come of it at all.'
15 For my own part, I am not prepared to demur from His Honour's categorisation. Further, His Honour went onto say,
'While such a finding does add to the seriousness of your crimes, it remains the case that even with a more favourable finding, the gravity of each of the crimes is high. The victim was a friend who trusted you to understand and importantly accept her words that she did not want to have sex with either of you. She was entitled to safely enjoy, as so many young people do in the city and the country, 21st birthday celebrations of a friend by drinking, and then going off to sleep on the property with other friends around them. She was entitled to feel safe in that environment. To be sexually violated, raped by two men whom she trusted, is a grave thing. The crimes are serious examples of rape by a known acquaintance. It is aggravated by reason of there being two of you involved, though you are not complicit in each other's offending. The moral culpability of each of you is high'.
Victim impact statements
16 Understandably, the impact on the victim and her family has been considerable. In her victim impact statement, she wrote of continual feelings of hurt, anger, sadness and confusion towards the event and the after effects. She had suffered long depressive episodes through 2017. She found it difficult to eat or leave the house. She had been required to seek the assistance of a psychologist fortnightly for three years and she sees that this will continue into the foreseeable future. She had serious mental health problems relating to Post-Traumatic Stress Disorder, depressive episodes and severe anxiety. It has made it difficult for her to leave the home to attend to things that she should be available to attend to, her university classes, social events and exercise and sport. She has a substantial loss of confidence and trust in anything and everyone, and it impacts upon all aspects of her life.
17 She has moved interstate. She finds it difficult to return back to her family in the small town in which she lived. She finds it difficult to make new friends, because she has difficulty in trusting anyone. She writes about being ostracised from the local community. His Honour stated that he made it clear he did not consider it is a matter that it is your fault that there might be a feeling of ostracisation in the local community. He went on to say, but it is something that she says has affected her. She fears going home to visit her family, she does not feel safe, living even in Geelong. She has moved interstate at significant cost to her and to her university studies. She summarises in this way,
'The last three years of my life have been the worst I've had to go through. Having two friends I trusted and have known for 10 years assault me, this crime will always have an impact on my life'.
18 She says with some degree of hope and optimism that she's working on the impact being less and less each year, but her view of the world and her trust of people will always be affected. She had had to put her life on hold due to the mental illness that arises from the rapes that she sustained, and the sexual assault, and due to the many court dates. Unfortunately, many of them changed around and because of that it is hard for her to think about her future or have plans. She used to be quite active, sporting, but since this happened to her, she writes she cannot do these things without significant stress and she certainly cannot do them alone.
19 She is hoping that therapy and working harder on her own mental health, will be enough for her to pursue her career, once she finishes her university studies. She points out that of course, she would have finished her university studies by now, and be moving into her career had this not happened to her.
20 In a further impact statement before me, she has confirmed these matters, bravely, in open court. With respect to the victim's mother, His Honour stated,
'Her mother in her victim impact statement notes that she is grieving, that she feels for loss of the daughter she once had, who is now very different. She was once the life of the party, full of fun and laughter. She rarely goes out says the mother of her daughter, and never by herself. Her mother feels sadness, anger and hopelessness. She feels isolated and rejected in her community'.
21 His Honour stated, 'I repeat the words of not attributing that to you'.
Personal circumstances
22 His Honour stated at paragraph 22,
'Dealing first with you, Mr Merryfull, you are now 24 [and I infer that it's now 28], but as I understand it, 21 at the time. You come from a close family that had been in the Balmoral district for generations. You went to school locally and then as a border Ballarat. You excelled at sport and became an important member of your local football team. You were seen as a leader. You and your family have had to overcome the heartbreak of your mother dying too young from cancer. She was under treatment for a number of years before passing just some months after these allegations were made. You and your sister, your father and your extended family have supported each other, but the loss of your mother has no doubt left a mark.
After finishing Year 12, you worked in the mining industry in Victoria and then Western Australia. You have saved money and together with your sister have bought land. After returning from Western Australia, you obtained an electrician's apprenticeship in Geelong and moved there. You have done well impressing your employer, who is, to his credit, willing to standby you after your release. You have continued with your football career in Geelong. I heard impressive evidence of your contribution to the local club from the ex-president, a man who has known your family and you for decades. Your aunt also gave important evidence of your character, the loss of your mother and the ongoing support that is there for you.
I have heard evidence of your good character during the trial as well. I have no doubt that you have solid prospects of resuming a lawful, productive life after release. Hopefully you will complete your apprenticeship and establish a career as an electrician'.
23 His Honour then dealt with Mr Bloomfield in the following way.
'As to your personal circumstances, Shaun Bloomfield, you were raised in Balmoral, attending school there until Year 10. Thereafter you secured an apprenticeship as a diesel mechanic. You completed that apprenticeship and remained with your then employer until 2017. You then moved to a new employer in Horsham. You are a senior mechanic there, leading the training and education of other young apprentices and workers. You are a key man in that business and the proprietor wrote to the court of your good work ethic and good character. Your work history is very much to your credit, as it was with Mr Merryfull.
You too, lost your mother in the months after the allegations. You have had to deal with that, but also you have helped and stood by your father and sisters. Your relationship with your girlfriend, your current partner is important to you and to her. She is devastated at your circumstances but stands by you, as does her family. Her family are impressed by your character and how you have dealt with the knocks that you have had in your life. You are ordinarily a respectful young man willing to help. The high point in that regard was your brave and selfless rescue of
two drowning men at Yamba Beach near Port Fairy in January 2014. You were just 19 years old when you headed into the surf to save those
two people.
This bravery was recognised to the highest level with you receiving The Royal Humane Society of Australia's certificate of merit. The award was conferred on you by the Governor of Victoria in December 2015. This is no small matter. It is a significant contribution by you to our community and one of the rare cases where s6C of the Sentencing Act is engaged in my overall assessment of your character. The offending stands in stark contrast to this earlier brave behaviour. I will factor your conduct in January 2014 into the sentencing synthesis that is very much in your favour.
Your prospects are solid. You have very considerable support from your father and sisters and have your extended family and your many friends in and around your home town. You are making the most of your difficult circumstances in - well you have - you are making the most of your difficult circumstances in prison. On release you will be well supported and hopefully able to resume your career and relationship'.
Delay
24 As to delay, when sentencing you both nearly four years ago, His Honour stated.
'The offending occurred in early 2016 and is now three years' old. Neither of you contributed to that delay. It has been hard on you both, but notwithstanding that to your credit, in both cases, you have both been law-abiding and hardworking since. The victim too, spoke of delays and the shifting court dates. In the end the case was moved to Geelong, to ensure that it was heard as the lists in Warrnambool were too heavy. The delay is a factor mitigating penalty, it is regrettable'.
25 In the further four years since then, there have been three more County Court trials commenced regarding these proceedings and the final one culminating in the verdict before me. There has also been one application to the Court of Appeal on your behalf which was successful, where new evidence was adduced by Lisa Hutchins to the effect that the victim had said, words to the effect that maybe she consented to Luke but not to Shaun. In any event, after nearly four days of deliberation, the jury by majority obviously rejected this evidence, at least with respect to Mr Merryfull. Further it was put on your behalf before me, Mr Merryfull as follows.
'First, the delay in this case has been exceptional and has infected the process right from the very start. (i), When there was a considerable period of time, between the allegation being made and the charge being laid; (ii), Substantial delay between the committal hearing and the first trial hearing; (iii), Delay in the appeal being heard by the Court of Appeal; (iv), the interruption and suspension of jury trials, because of
COVID-19; (v), discharge of the second and third juries in extraordinary circumstances, and (vi), the conclusion of the matter on 23 August 2022. Delay has long been recognised as a substantial mitigating factor. There are in effect, two aspects of components to delays in mitigating factor.
First, delay is mitigating because the authorities recognise that delay in the disposition of a criminal proceeding, produces anxiety and stress over and above the normal incidents awaiting determination of criminal proceedings. Second, delay in the determination of a criminal proceeding, can also be relevant in the assessment of the prospects of rehabilitation as it may enable an accused to demonstrate that in fact, the offending was out of character, by living a pro-social existence, while awaiting the conclusion of the criminal proceedings.
Of course, in this case Mr Merryfull was 21 years of age at the time of the offence and was thereby a youthful offender and is now
28 years of age. The anxiety and stress visited upon Mr Merryfull has been compounded and magnified over a number of years and has had a substantial impact upon him. Your counsel submits indeed if there was an exemplar of a criminal justice process itself constituting a form of punishment, then this is such a case'.
26 On your behalf Mr Bloomfield, counsel stated, In the case of Todd[1],
Chief Justice Street, identified several considerations relevant to the assessment of delay and these remarks have frequently been applied in Victoria.
[1] [1982] 2 NSWLR 517 cited with approval by the High Court in R v Mill (1988) 166 CLR 59 at [64]
27 His Honour stated at pp519-520,
'Where there has been a lengthy postponement whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach. Passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation, playing a dominant role in the determination of what should be done in the matter of sentence. At times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner'.
28 Counsel further submitted that these observations are apposite to this matter. The accused has had this prosecution hanging over him for nearly seven years. To put that into context that is just under a quarter of his life. This includes the anxiety surrounding the potential impact imprisonment and returning to prison has had on him. As the Court of Appeal stated in the seminal case of Michelli[2],
'Proper sentencing principles dictated that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced, particularly when rehabilitation is a real prospect'.
[2] Miceli (1998) 4 VR 588
29
In written submissions before me, counsel for you, Mr Merryfull submitted that the jury having delivered its verdict on 23 August 2022, this was the fourth trial of the allegations against you and you were found guilty by a majority verdict after deliberating for a number of days of one charge of rape. This had occurred in a context where you had originally been sentenced to a term of imprisonment of four years and 10 months' imprisonment, with a non-parole period of
two years and 10 months, by Judge Mullaly on 10 April 2019, but where the appeal was allowed by a unanimous Court of Appeal decision on
20 September 2020, and you were released on bail, having served some
522 days.
30 It is further submitted that,
'What was clear from the evidence in the trial was that almost all of the young people who attended the party, were affected by alcohol and the offending occurs in that context'.
31 The procedural history, counsel submitted, can only be described as extraordinary and exceptional. I accept this submission, there have been four County Court proceedings commenced, and one Court of Appeal decision as has already been outlined.
32
It is further submitted that the original sentence imposed by His Honour
Judge Mullaly can in truth no longer be considered appropriate, given everything that has happened since that sentence was imposed four years' ago on
10 April 2019. In particular, it is highlighted that you were 21 years of age at the time and are now 28. Further the anxiety and stress visited upon you has been compounded and magnified over a number of years and has had a substantial impact upon you.
33
Second, delay is a further substantial mitigating factor because the productive way, following your release on bail on 17 September 2020, by the
Court of Appeal, that you have used your time on bail while awaiting your re-trial. It is submitted that following your release, you have led an exemplary life while under the enormous pressure that you may or may not have, of having to return to custody. It is submitted that you have worked consistently throughout that period, and you have attempted as best you can, to live your life in spite of not knowing what the outcome will be of any re-trial.
34 It is further submitted that when you served your term of imprisonment of some 19 months, it was under COVID-19 prison conditions. As part of the regime introduced by Corrections Victoria, all contact visits with family and friends were suspended because of COVID-19. Programs were curtailed and contact with the outside world was effectively suspended. Lockdowns of varying lengths occurred on a rolling basis. Prison as a result became much more burdensome, as the qualitative experience of prison became much harder. The service of that harder time by you, Mr Merryfull, during those 19 months in COVID-19 prison conditions, and the further emasculation of the already restricted range of freedom afforded to a prisoner is directly relevant to the assessment of proportionality and the punishment to be imposed upon you in the re-sentencing for this offence.
35
As to good character, it was submitted that you have no prior convictions and you have no subsequent or pending matters. Indeed, it is submitted that this is the only time you have had any contact with police, that which rose out of this investigation. The character references relied on by you, of which there are
21 in total, are impressive by virtue of not only the amount but the fact that attest to the very relevant period of your life and to every aspect of your life. I accept this submission.
36 Your counsel submits that they can be distilled into a number of adjectives about your character. 'Loyal, hardworking, reliable, supportive and considerate'. It is further submitted, 'Of course his conviction on this charge is radically inconsistent with the allegation that has been proved against him', and, I would add, that much is certainly obvious.
37 It is submitted in a plea on your behalf that the extensive good character evidence also demonstrates that this event ought not to define the essence of who you are, or who you were, or what you will become. It is submitted that you have excellent prospects of rehabilitation. It is submitted that ordinarily when a sentencing judge sentences an offender there is an assessment about the rehabilitative prospects of that offender, and various adjectives are used to describe those prospects, good, poor, excellent or uncertain.
38 Those assessments are necessarily speculative and tentative because it is a prospective finding about the unfolding of future events. But it is submitted that this is not so in the case here, because you have demonstrated since your release and in trying circumstances awaiting your re-trial, your ability to not only obtain gainful employment, but also to reintegrate into the community and act in a pro-social manner.
39 It is submitted that in addition, the fact that you have spent in excess of two years in the community leading a lawful and productive life, and will likely live the rest of your life in that manner, means a positive, as opposed to a speculative finding, can be made that you have excellent prospects of rehabilitation.
40 It is further submitted that the time of imprisonment of some 19 months has had a major impact upon you. It can be safely assumed, it is submitted that the work to be done for specific deterrence, in this case has been exhausted, I accept that submission.
41 Further it is submitted that a return to the custodial environment is likely to have an adverse impact on your mental health and lead to deterioration in that mental health. The report of Dr Patrick Newton, makes clear the significant stressors that have impacted upon you over the last seven years and led you to suffer a degree of depression and anxiety together with continued grief over the loss of your mother in 2016, and the length and tumultuous nature of these proceedings. It is submitted that a return to custody at this point is likely to compromise significantly your mental health. There is no submission before me, that any of the principles of Verdins applies, but however I do take into account, in my instinctive synthesis, that there is merit in the submission being forwarded.
42 Finally, it is submitted on your behalf that mercy is a legitimate tool in a sentencing judge's repertoire. It is of course to be used sparingly and where the particular circumstances of a case excite such a reaction in the judicial officer. It is submitted that yours is a case where mercy is appropriate. I will return to that point at a later time.
43 On your behalf, Mr Bloomfield, it was submitted both orally and in writing, that you were born in June 1994 to Darren and Ruth. You were 21 years old at the time of the offending and you are now 28. You are one of four children; you have three sisters and two half-sisters. You are in close contact with all of your family and you have provided immeasurable support to your father Darren, since his wife, and your mother's, passing.
44 In the months immediately after being charged with rape, your mother was diagnosed with terminal cancer and you cared for her in her last few months until she passed away in September 2016. You then cared for your grieving family and friends, common with your character.
45 Not long after the passing of your mother, you began a relationship with Olivia. You were candid about the allegations that you faced at that time. Notwithstanding your incarceration, your relationship continued. You reside together in Horsham. It appears no doubt that the relationship will continue irrespective of the outcome of this matter. It is submitted that Olivia is a positive influence upon you and provides you with considerable emotional support.
46
You attended school in Balmoral. You were an average student. As a consequence, you began focussing from Year 9 on VCAL undertaking a
trade-based training program. On leaving school aged 15, you completed an apprenticeship as a diesel mechanic. You worked primarily in this field ever since. Your only break from employment was this period of incarceration. The court heard evidence at the trial from your employer. You impressed the employer despite the pending rape trial, to the extent you obtained employment but went on to be in a management role.
47 The employer says that you are a fundamental member of his team and valued by him. However, it is likely imprisonment will result in the loss of this employment. It is submitted that there is no doubt that you have a very strong work ethic, but your work will be impacted by any matter that requires working with children check.
48 It is submitted on your behalf, that you are to be sentenced for two rapes and a sexual assault that arose in short compass during a fairly short incident. It is of note, that as far as the penile vaginal rape is concerned, the victim accepted that as soon as she pushed you, you immediately withdrew your penis and stopped the rape and that it was relatively short in duration. This may be true on the face of it, but it does not, in my view, detract markedly from the seriousness of the offending. Your counsel asked the court to note that after your arrest the police were so concerned about the risk of you self-harming that welfare checks were undertaken.
49
Further it is submitted on your behalf that you are a person of positive good character. Once again it is highlighted about your bravery in saving the
two drowning men in Port Fairy in January 2014. It was also put on your
behalf that after your release from prison you volunteered with the
Balmoral Fire Rescue to assist with fighting the bushfires.
50 Further there are a plethora of character statements before the court that best reflect your character and demonstrate your true character. When in prison, you obtained a privileged role as a prison listener whereby you were trusted to assist others who had been remanded in custody. It is submitted it follows that the court should accept under s6C of the Sentencing Act that you have made a significant contribution to the community and mitigate your sentence accordingly and I will do so.
51 Further it is submitted that rather than sit on your hands and await the conclusion of this case, since your release from prison, you have obtained steady employment, you have a strong work ethic and you are a contributing member of your community.
52
Your counsel reiterated the stress you underwent whilst in prison, due to the COVID-19 scenario. It's further submitted, you had limited access to programs or courses. For instance, you were unable to complete the relevant
sex offenders' program, you had no physical contact with family and loved ones, you had limited online contact with them, you were the subject of numerous lockdowns. And in the future if you return to prison, you may be subject to further lockdowns implemented for health reasons in addition to the initial
14-day quarantine.
53 This was particularly relevant in light of being your first time in the custodial system. As was recognised by Justice Lasry in Re Broes [2020] VSC 128 at paragraph 40.
'Offenders who are in prison for the first time during COVID will find it particularly onerous given the lack of contact with family and friends which is significant in assisting them settle into their new environment. It is submitted that you were a prime example of this. Your time in custody of 19-20 months was much harder than for those entering the prison prior to COVID'.
54 It is submitted that COVID is still an issue within the prison system and that is relevant to your sentence should the court be considering further imprisonment.
55
In a case such as this the length of delay between the offending and
the sentence being nearly seven years and the steps taken by each
respondent to reform his behaviour are considerable mitigating factors. In
The Queen v Merrett, Piggott and Ferrari
[2007] 14 VR 392 and also at [2007] VSCA 1, President Maxwell with whom Chernov, Justice of Appeal and Acting Justice of Appeal Habersberger agreed, stated,
'The relevance of delay was rather in the effect which the lapse of time however caused has on the accused. Delay constitutes a powerful mitigating factor'.
56
In particular it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in
Duncan v The Queen
[1983] 9 ACR 354 at 356-7,
'Where prior to sentence there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process, should not be allowed to prevail, so as to possibly destroy the results of that rehabilitation. The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf'. [35]
57 It is also appropriate, in my view, to take into account that both accused have undergone a sentence of imprisonment of approximately 19 months prior to being granted bail by the Court of Appeal. In DPP v Keller (a Pseudonym) [2021] VSCA 334, the court consisting of President Maxwell and Justices of Appeal, Kaye and Sifris stated,
'As an allied consideration, it was appropriate for the judge to take into account that the sentence of imprisonment imposed on the respondent was his first experience of custody. That experience was to undergone during the pandemic in which the respondent was required to undergo quarantine for 14 days in circumstances of isolation and he would then be required to serve his sentence in an environment which was strictly controlled in order to prevent the entry of the virus into the prison's population... In addition, there were other mitigating circumstances, the respondent had been gainfully employed in the construction industry for more than 30 years.
He had been actively involved in sport in the local community both as a participant and as a coach and mentor to young footballers. The character references tendered on behalf of the respondent attested to this work ethic, to this close relationship with his daughters and his loyalty to in support of his family. Finally, and relevantly the judge accepted the view of Ms Matthews, the forensic psychologist, that there was a very low risk of the respondent reoffending in a sexual manner'.
58 The court went on to say,
'Considered in combination, the mitigating factors to which we have referred were particularly powerful. As we have discussed the judge was correct to take into account the period of delay and in particular the genuine remorse experienced by the respondent and the steps that has been taken during the period of delay to reform and rehabilitate himself. It was strongly in the public interest that the sentence imposed should so far as possibly enable that process of rehabilitation to continue. A combination sentence was therefore particularly appropriate, given the unique capacity with the CCO to advance an offender's rehabilitation'.
59 All three counsel directed my attention to various cases which they considered may be of assistance in sentencing both offenders. I have read each of the cases referred to by counsel and would note that none of the cases referred to are completely comparable in terms of the factual scenario or the circumstances of each accused. However, I have taken the sentencing dispositions of the case as referred to in account, as they do provide some guidance as to the application of the relevant sentencing principles in this area. I bear in mind however, that I am not bound by any of the dispositions but do take them into account in my overall instinctive synthesis in sentencing.
60 The prosecutor submitted that despite the long period of delay and the legitimate rehabilitation which both of you have demonstrated in the intervening period, general deterrence, just punishment and denunciation all still carry significant weight in the sentencing synthesis and that a head sentence with a non-parole period involving a return to prison for further incarceration is warranted.
61 Conversely, both counsel for the accused submitted that no further gaol time is warranted in this case such as a Community Corrections Order in combination with the term already served would be within the range of sentences open to the court.
62 In sentencing you I must take into account the principles of totality and parsimony. In the particular circumstances of this case, the principle of parsimony requires me to consider whether there is any feature of the offending by either of you, which requires a conclusion that imprisonment is the only option, given that a Community Corrections Order can be imposed for a period of years with both punitive and rehabilitative conditions attached.
63 Without making any promises as to disposition, I have had you both assessed for a Community Corrections Order in this case and both have been assessed as suitable.
64 With respect to you Mr Merryfull, the assessor stated that you,
'Engaged with the writer in a polite forthcoming manner for the duration of the assessment. With regards to the offending in this context,
Mr Merryfull indicated that he plead not guilty and continues to maintain his innocence, however was able to accept the potential harm caused to the victim. He described the victim as one of his close friends at the time and acknowledged the effect the offending had on the victim and her family following the formal reading of the victim impact statement during the hearing.
At the time Mr Merryfull reported being under the influence of alcohol, but did not describe any significant intoxication to impact judgement.
Mr Merryfull is employed as a landscaper on a full-time basis. The writer notes the material tendered to his service from his employer. All the conditions indicated by the court have been explained in full and
Mr Merryfull provided verbal consent to the imposition of the
Community Corrections Order. In light of the above information and identifiable protective factors such as ongoing familial support and an expressed willingness to comply, Mr Merryfull is deemed a suitable candidate.'
65 As to Mr Bloomfield, the assessor stated that,
'You engaged with the writer in an appropriate forthcoming manner. When invited to discuss the offending in this context, Mr Bloomfield stated that, "It is a very serious charge in regards to rape and that the victim might have felt that way, but I had no inkling of it at all, maybe she felt something that way". Mr Bloomfield indicated that he had plead not guilty the whole time and maintained his innocence. He did not demonstrate considerable remorse or insight regarding the offending, unable to iterate any potential harm caused to the victim.
Mr Bloomfield is employed on a full-time basis as GPS technician. He described a significant familial community support as demonstrated in the references provided to this service. All conditions indicated by the court have been explained in full and Mr Bloomfield provided verbal consent to the imposition of a Community Corrections Order. In light of the above information and identifiable protective factors such as stable accommodation, employment and expressed willingness to comply,
Mr Bloomfield is deemed a suitable candidate'.
66
It would appear that the assessor, the same for both parties, highlighted both accused maintaining their innocence but differentiated on the basis that
Mr Merryfull had some empathy for the victim following the reading of her statement, whereas Mr Bloomfield was unable to 'iterate any potential harm caused to the victim'.
67
The question in all the circumstances is whether in circumstances where both accused having served a sentence of some 19 months already, could be considered suitable for release on a Community Corrections Order. In the
oft cited case, of Boulton v The Queen [2014] 46 VR 308 at paragraph 131,
five members of the Court of Appeal with respect to Community Corrections Orders stated,
'A CCO maybe suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment. Such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape, and some categories of homicide. The sentencing judge might find that in view of the objective gravity of the conduct and the personal circumstances of the offender a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects for rehabilitation'.
68 Clearly, no one has submitted in this case that a period of imprisonment is not required. The ultimate question is whether a further period should be ordered, involving a head sentence and a non-parole period or a Community Corrections Order with or without a gaol sentence should be ordered given that 19 months have already been served.
69 The prosecutor submits that the circumstances of the offending with respect to both offenders justifies a head sentence of non-parole period in excess of the period that both offenders have served to date. Those circumstances which involve questions of just punishment, denunciation, gravity of offending and impact on the victim, are all to the fore..
70 In constructing my instinctive synthesis however, I do take into account the long period of delay, now amounting to some seven years, none of which I consider can be visited at the feet of either of accused. Both accused have now served the sentence in circumstances where COVID-19 was a prominent consideration, with respect to the conditions of imprisonment as set out in the well-known case of Worboyes[3].
[3] Worboyes v The Queen [2021] VSCA 169
71
Of some concern is that neither of the accused has acknowledged the correctness of the jury verdict in both hearings. I accept that Mr Merryfull has empathy for the victim which I note, regrettably, is not present the case of
Mr Bloomfield. There is no suggestion that either accused was in any way involved with the new evidence given at the trial before me, to which the jury must have given little or no weight.
72 In a case such as this, the length of the delay between the offending and the sentence and the steps taken by the respondents to reform their behaviour, were properly regarded by the primary judge in a matter of Keller, which went on appeal in the matter of DPP v Keller reported at [2021] VSCA 334, where the court said at paragraph 91 and following,
'In a case such as this, the length of the delay between the offending and the sentence and the steps taken by the respondent to reform his behaviour, were properly regarded by the judge as powerful mitigating factors. In The Queen v Merrett, Piggott and Ferrari [2017] 14 VR 392, President Maxwell with whom, Justice of Appeal Chernov and Habersberger stated, "The relevance of delay lies rather in the effect which the lapse of time however caused has on the accused. Delay constitutes a powerful mitigating factor, in particular it focuses an attention of issues of rehabilitation and fairness as referred to above"'.
73
These principles were later followed and applied by the court in the matter of Byrne [2011] VSCA 159 at paragraph 30. In that case the appellant pleaded guilty to one charge of rape of his partner. The offending occurred in
November 2004. The victim did not make a formal complaint to police until November 2008. The appellant was interviewed in January 2009 but was not charged until November 2009. He was sentenced in July 2010. On appeal this court held that the sentencing judge failed to give adequate weight to the delay. The court observed,
'What makes delay such a powerful mitigating factor in a case such as the present, is that considerations of rehabilitation and fairness weigh heavily on the sentencing synthesis mitigating the punishment which the seriousness of the offence might otherwise warrant.’
74 Further, more recently the effect of delay was considered by the Court of Appeal in Stafford v King [2022] VSCA 229, where it was held that inordinate delay is a powerful mitigating factor and justifies a considerable discount in sentence.
75 Having both been found suitable for a satisfactorily tailored CCO, the essential question and in exercising my instinctive synthesis, is whether a combination sentence can be considered or whether, as submitted by the prosecution, a further term of actual imprisonment is required. Neither the prosecution nor the offenders challenged Judge Mulally's sentence with respect to its adequacy. It is nearly four years since that sentence was delivered and the offenders have served a further 522 days imprisonment before being released on bail by the Court of Appeal on 17 September 2020.
76
Both offenders have demonstrated significant rehabilitative measures, such that I am satisfied that neither of you is a significant risk of reoffending. I am also satisfied that specific deterrence does not loom large as both of you have undergone a significant salutary experience of commencing four trials with
two verdicts and a successful Court of Appeal outcome. I find that the delay of nearly seven years since the offending is a significant mitigating factor as per the authorities cited above.
77 The prosecutor's submission that neither of you has accepted your guilt over the offending is concerning, I agree. It took this jury nearly four days of consideration, before convicting by a majority verdict. The offending took place late at night, after all parties had been drinking and had known each other for a number of years. Perhaps that goes someway to explaining the respective behaviour of both of you, but in the end, it does not excuse the appalling behaviour that each of you demonstrated.
78 If one accepts that His Honour's sentence was within range when handed down in 2019, which I do, I should still take into account the mitigating factors of the further four years delay over double the time of delay considered by His Honour, the commencement of three further trials and an appeal to the higher court. Further to the task, the fact that significant rehabilitative matters including stable employment and relationships are to be weighed in the balance.
79 I do take into account that in this current case, general deterrence is of lesser importance because of your youth and because of your good character. Correspondingly your rehabilitation should be at the forefront of the court's consideration when determining a sentence in this matter. This approach has been commented upon favourable in the well-known case of Queen v Mills [1998] 4 VR 235 and also in the case of The Queen vAzzopardi & Ors [2011] VSCA 372.
80 With respect to just punishment, I am mindful what the Court of Appeal has said in DPP v Alsop [2010] VSCA 325, where Justice of Appeal Redlich stated at paragraph 30,
'Second, the overall sentence should not be "crushing" in the sense that it would destroy any reasonable expectation of a useful life after release. The critical question then is whether after allowing for mitigating circumstances the total sentence including the parole sentences reflects what is appropriate for the overall criminality of the convicted person'.
81 Finally, another factor that is applicable in both your cases is whether the court should exercise a modicum of mercy when administering justice. As Justice of Appeal Eames said in DPP v Leich [2003] 139 ACR 64,
'It is particularly important that the Court of Appeal should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought to be grasped. That after all may be a decision which rebounds very much to the benefit of the community'.
82
Finally, as Chief Justice Spiegelman stated in the matter of Jurisic [1998]
45 NSW Law Reports 209,
'It has long been accepted that denunciation of criminal conduct is a relevant factor in the sentencing process. In the course of such denunciation courts do and should have regard to the moral sense of the community and to community expectations of appropriate punishment. Courts are however aware that the requirements of justice and the requirements of mercy are often in conflict, but that we live in a society which values both justice and mercy'.
83 Despite the maintenance of innocence referred to above, I consider that s44(1) of the Sentencing Act permits a combination sentence that involves no more than 12 months of imprisonment into the future as distinct from the past. In all the circumstances I propose to order a Community Corrections Order with respect to both accused, which includes a substantial component of community work together with a requirement to undergo programs that address the offending behaviour as recommended by the assessor and would thus satisfy both the punitive and rehabilitative aims at sentencing.
84 I also take into account that by virtue of s54C of the Sentencing Act, I am obliged not to impose a sentence that involves your confinement unless I consider that the purpose or purposes for which the sentence is imposed cannot be achieved by a Community Correction Order to which one or more of the conditions referred to in s48F, 48G, 48H, 48I and 48J are attached. Section 5(2) of the Sentencing Act provides for a range of factors that a court must have regard to when sentencing, which so far as is relevant includes the matters set out therein from (a)-(g).
85 The Court of Appeal has said that these conditions must be balanced as a matter of instinctive synthesis, so as to arrive at a sentence which is just in all the circumstances. The extent to which each factor in s5(2) bears upon the formation of the instinctive synthesis is inevitably a matter of judgment allowing a measure of discretion to the sentencing judge. Given the discretionary nature of the required judgment there is no single sentence that is just in all the circumstances. See DPP v McInnes [2017] VSCA 374 at paragraph 72.
86 Their Honours also referred to the seminal High Court case of DPP v Dalgleish. Their Honours Justices Gaugler and Gordon remarked as follows at paragraph 82,
'Section 5(2)B does not in terms provide that current sentencing practices set boundaries on what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices as well as every other matter listed in s5(2). Current sentencing practices stand in the same position as every other matter listed in s5(2)'.
87 Further, they state at paragraph 83,
'Sentences are not binding precedence but are merely historical statements of what has happened in the past. As was said in
Hill v The Queen, that history does not establish that the range is the correct range or that the upper or lower limits to the range are the correct upper and lower limits. Examination of sentences imposed in comparable cases may inform the task of sentencing, but such examination goes beyond its rationale when it is used to fix boundaries that is a matter of practicality by the court'.
88 I am also satisfied that on the basis of the evidence presented by Mr Newton that a term of imprisonment for Mr Merryfull would be more onerous for him than the normal prisoner, for the reasons set out therein.
89 Further, although the gravity of the offending of Mr Bloomfield is greater as reflected in the sentences imposed by Judge Mullaly, I am of the view, taking into account good character, service to the community in fighting the bushfires, and also the bravery extended means that the balancing can be done by a longer CCO with the punitive terms.
90 It is my view that this is one of the rare cases where ordinary members of the community would not necessarily expect a further term of imprisonment to be imposed in either case. Doing the best I can, I impose the following penalties.
91 Mr Merryfull could you please stand?
92
Mr Merryfull on Charge 2 of rape, you are convicted and sentenced to
19 months' imprisonment, being the period held in custody pursuant to s18 of the Sentencing Act 1991 together with a Community Corrections Order for a period of two years.
93 The total effective sentence is one year and seven months. I further declare that the period that you have been in custody in respect of these offences, namely 19 months be reckoned as a period of imprisonment already served under this sentence which is to be deducted administratively.
94
Further on Charge 2 you are convicted and ordered to serve a Community Corrections Order for a period of two years. The order commences on
12 April 2023 and it ends on 11 April 2025. You must attend at the Geelong Community Correctional Services by 14 April of this year at 4 pm.
95
In addition to the mandatory terms. You must undergo unpaid community work. You must perform 200 hours of unpaid community work, over a period of
two years as directed by the regional manager. You must be under the supervision of a Community Corrections Order for a period of two years. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. And you must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manger.
96
I should indicate to you that if you accept the terms of this Community Corrections Order, that if you fail to adhere to the terms of the Community Corrections Order you can be brought back before me for sentencing,
re-sentencing on the original charge and you may also be subject to a gaol sentence for the breach itself.
97 Are you prepared to accept the terms of the CCO in the way that I've described?
98 OFFENDER MERRYFULL: Yes, Your Honour.
99 HIS HONOUR: Yes, you may have a - - -
100
MS THOMAS: Your Honour before Your Honour proceeds to ask either
Mr Merryfull and Mr Bloomfield to sign a Community Corrections Order I can indicate Your Honour cannot impose a sentence of more than 12 months.
101 HIS HONOUR: Yes.
102 MS THOMAS: In conjunction with a Community Corrections Order. So the order that Your Honour has announced is not lawful, with respect.
103 HIS HONOUR: Well, I'll amend the - I'll amend it as follows.
104 MR NATHWANI: If it assists, just to assist Your Honour, so Your Honour's intention is clear. I agree with what my learned friend says. Often on a sentence Your Honour has the additional comments and Your Honour can put it into there, that you take it into account the 19 months.
105 HIS HONOUR: Well, can I just interject to you that this is how, I've already indicated that I believe it's within power under s44(1) of the Sentencing Act on the basis that after deduction of the period that it's not to exceed 12 months. And what the record should show is this and perhaps if I read it out to you, I thought I put this in the original.
106 That Mr Merryfull you are convicted and sentenced pursuant to s44(1) of the Sentencing Act to a period of 19 months' imprisonment, being the period held in custody under s18 of the Act. In addition, you are sentenced to a Community Corrections Order for a period of two years. Now that follows the words of the Act and I will amend the record to reflect those words.
107 MR NATHWANI: Thank you, Your Honour.
108 HIS HONOUR: Mr Bloomfield could you please stand?
109
On Charge 4 of rape, you are convicted and sentenced pursuant to s44(1) of the Sentencing Act to a period of 19 months' imprisonment, being the period held in custody under s18 of the Act. In addition, you are convicted and sentenced to a Community Corrections Order for a period of three years as follows. The order commences on 12 April 2023 and it ends on
11 April 2026. You must attend at the Horsham Community Correctional Services by 14 April 2023 at 4 pm.
110 In addition to the mandatory terms, unpaid community work: you must perform 300 hours of unpaid community work, over a period of three years as directed by the regional manager. Supervision: You must be under the supervision of a Community Corrections Officer for a period of three years. Treatment and rehabilitation: You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. You must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manger.
111 On Charge 1, rape, you are convicted and sentenced to 19 months' imprisonment.
112
On Charge 3, being sexual assault, you are convicted and sentenced to
six months' imprisonment.
113
I direct that the sentence on Charge 4 be the base sentence and I direct that
19 months of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 3 be served concurrently upon each other and upon the sentence imposed upon Charge 4.
114 I direct that all sentences imposed in this case are to be served concurrently, and the total effective sentence stated is one year and seven months.
115 I further declare that the period that you have been in custody in respect of these offences, namely 19 months, be reckoned as a period of imprisonment already served under this sentence which is to be deducted administratively.
116 Pursuant to s6F of the Sentencing Act Victoria, you are sentenced as a serious sexual offender in respect of Charge 4.
117 Are you prepared to enter into a Community Corrections Order on the terms that I have expressed?
118 OFFENDER BLOOMFIELD: Yes, Your Honour.
119 HIS HONOUR: And you realise and I should indicate to you that any breach of that Community Corrections Order, may result in you coming back to be resentenced on these charges and you may also be convicted of a breach per se which may involve a gaol sentence. Are you still prepared to enter into that sentence?
120 OFFENDER BLOOMFIELD: Yes, Your Honour, yes.
121 HIS HONOUR: Yes, have a seat please. Now counsel as I understand what is sought from the media is the indictment, prosecution summary and the defence response and records of interview, although there is no record of interview. I have no difficulty with the media having the indictment, and it seems to me the prosecution summary and the defence responses are already incorporated in the sentencing remarks that I've made, but they will be available to the members of the media on the media portal, meaning that they can listen to the words that I have said. I'm not in a position to give any hard copy. That will become available to the parties very shortly, but it will be provided shortly, but not right now. Is there any difficulty with that?
122 MS THOMAS: Not from my perspective, Your Honour.
123 MR NATHWANI: No, Your Honour.
124 HIS HONOUR: All right, thank you. Is there anything further?
125 MR NATHWANI: No, thank you.
126 MS THOMAS: No, Your Honour.
127 HIS HONOUR: Ms Thomas do I need to state the reporting period for the sex offender's registration?
128 MS THOMAS: It should be stated on the record as well.
129 HIS HONOUR: What do you submit is the period?
130 MS THOMAS: To be honest Your Honour, I'm not sure whether that - this was provided. Perhaps I can just get some instructions? My instructor is on the link.
131 HIS HONOUR: Do you have a submission on that Mr Nathwani?
132 MS THOMAS: I don't think that there is a registration required for these offences Your Honour.
133 MR NATHWANI: Yes, and if I recall - - -
134 MS THOMAS: Being adult - an adult complainant.
135 HIS HONOUR: Right, thank you.
136 MS THOMAS: Yes. And that's why I didn't remember including it in my submissions.
137 HIS HONOUR: Thank you.
138 MS THOMAS: Because it didn't apply. The serious sexual offender requirements for sentencing required, but not registration.
139 HIS HONOUR: Yes, thank you. All right, is there anything further? No, I've got just to get these forms signed. Yes, can we adjourn the court please?
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