Director of Public Prosecutions v Mercer

[2015] VCC 718

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00953

DIRECTOR OF PUBLIC PROSECUTIONS

v

AUBREY MERCER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2015
DATE OF SENTENCE:	1 June 2015
CASE MAY BE CITED AS:	DPP v Mercer
MEDIUM NEUTRAL CITATION:	[2015] VCC 718

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. J. McWilliams	Office of Public Prosecutions
For the Offender	Ms. Z. Broughton	Victoria Legal Aid

HIS HONOUR:

1Aubrey Eric Mercer, you have been found guilty by a jury of one charge of kidnapping, and on a separate indictment, you have pleaded guilty to one charge of possess a small amount of cannabis which carries a monetary penalty only, and one charge of possess amphetamine which carries a maximum penalty of 12 months.  Kidnapping carries a maximum penalty of 25 years imprisonment. 

2You were convicted by a jury after a relatively short trial though I point out immediately that you were also acquitted of a number of very other serious matters.  You get the benefit of the plea of guilty to the much lesser offending but in your particular situation where you were faced with a significant number of additional charges, you in that circumstance, there is certainly no aggravation for having run a  trial.

3The fact of the matter is that you are 41 years of age.  You have a history of prior offending going back many years, both here and in New Zealand.  That prior offending is essentially for matters of dishonesty, driving offences and more street-based offences.  You only have the one conviction for violence and that is, in this circumstance is somewhat comforting. 

4The circumstances of this offending are difficult to determine after a jury has delivered the verdict that it has.  Essentially, what is said to have taken place is that going into the morning of 15 January 2014, you went to a street in Bayswater and, on the finding of the jury, unlawfully took and carried away one Casey Helen Rogers.  That actual taking away was captured on a call to 000.  Because of the jury acquitting you of other matters, I simply regard that kidnapping as having been of short compass. 

5In terms of how it came to be that it occurred, I am left in a significant state of doubt.  I think the only thing I can do here is, where different views may be held as how you came to be at that address, is to sentence on the basis that it was not a pre-meditated action and occurred relatively spontaneously.  Without going into a dissertation of all the facts, it seems to me there is no other way around it.  On the Crown case itself, the complainant had made two phone calls to you just a few minutes prior to your arrival.  The Crown case was that they were in fact answered, it is a bit hard to see how you knew where to go or got there by accident.  All those things being as they may, the jury have clearly acted on the tape which once you have evidence that the two people on that tape are yourself and the complainant, and the concession by you that she was taken in the car elsewhere, the offending is complete.  I will simply sentence on that basis.

6There is a victim impact statement before me which was read out by the complainant and I take that into account in this sentencing process.  Kidnapping is a crime of varying degree, and in your particular situation, whilst had you not been on remand I may have considered, on the basis of Boulton a disposition of non-custody, the fact of the matter is that you have now been in custody for a very significant period of time.  Indeed, as I indicated to counsel without binding anybody; for longer than was necessary.

7You have no real prior convictions for violence so I think the specific deterrence after what has happened and the custodial sentence you have undergone are particularly important.  General deterrence are of significance and there must also be appropriate punishment.  As I have indicated, I think that appropriate punishment is complete.  You have now been on remand for some 500 days.

8Your personal circumstances are that you are 41 years of age.  You were introduced to cannabis at a very young age.  You have a relatively good work record.  You were very seriously injured in a collision where a bus hit you some five or six years ago.  You came to Australia from New Zealand.  Your family upbringing was not ideal, but at 41, you are getting to the stage where you cannot really rely upon that.  You have been in a number of relationships and you have children, one of whom is in Australia and one of whom you would like to have contact with, however there has been in the past, as I understand it, intervention and I do not propose to buy into that. 

9There is a report tendered on your behalf from a Mr Jeffrey Cummins, Psychologist, who says that you have been suffering from a chronic adjustment disorder with depression ever since the mother of your two sons committed suicide some years ago.  You have indicated that you are endeavouring to rehabilitate.  I have material before me that shows that you have done a laudably large amount of courses whilst on remand, and I also have urine samples which display, at least on the days that you were being sampled, you had not been using drugs.  You do not have any disorder which would invite the application of Verdin's. 

10In all the circumstances, yours is a situation where I think just a simple, straight sentence is the appropriate disposition.  I see no reason, where you have already done, I think, more than enough in terms of incarceration, there should be a Community Corrections Order imposed upon the top of that, and in those circumstances, I view the prospects of your rehabilitation as entirely up to yourself. 

11On the charge of kidnapping, 364 days; on the charge of possess amphetamine, 7 days concurrent; on the charge of possess cannabis in a small quantity which only carries a monetary penalty, I can see absolutely no point in imposing a small fine, so in those circumstances on that charge, I will simply convict and discharge. 

12Pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you, and your counsel will explain to you what is needed in that scenario.

13I declare that 364 days be reckoned as having been served under this sentence.  There is no plea of guilty so s.6AA does not apply. 

14MR MCWILLIAMS:  For the other indictment.

15HIS HONOUR:  That's what I've done. 

16MR MCWILLIAMS:  6AAA for the plea on the other indictment, the drugs indictment.

17HIS HONOUR:  It is only on the amphetamine.

18MR MCWILLIAMS:  Yes.  It is up to you, Your Honour.  You have imposed a prison sentence for it. 

19HIS HONOUR:  But for your plea of guilty on the charge of possess amphetamine, I would have sentenced you to be imprisoned for a period of 10 days, if that satisfies the statisticians. 

20MR MCWILLIAMS:  It's more the technicalities we were talking about before, I think.

21HIS HONOUR:  Yes. 

22MR MCWILLIAMS:  Disposal and forfeiture is the only other two orders, Your Honour.

23HIS HONOUR:  They are already made.  Yes, they are made.  I have already done all those.

24MR MCWILLIAMS:  So disposal yes, but forfeiture no.

25HIS HONOUR:  No.

26MR MCWILLIAMS:  Is where we ended.

27HIS HONOUR:  Yes, declined.  Yes.

28MR MCWILLIAMS:  As Your Honour pleases.

29HIS HONOUR:  Yes, Ms Broughton.

30MS BROUGHTON:  Your Honour, as long as Your Honour does not make a remand order, on the proceeds charge - - -

31HIS HONOUR:  That is what I - they will let him go.

32MS BROUGHTON:  - - - they will let him go.

33HIS HONOUR:  That's what I thought.

34MS BROUGHTON:  Yes.

35HIS HONOUR:  Yes, all right.  Thanks for that.  Should I expressly say I am not going to do it.

36MS BROUGHTON:  Yes, Your Honour.

37HIS HONOUR:  Yes, all right.  What I will do, on the unrelated transferred summary matter of possess the proceeds of crime, I will transfer the matter back to the Magistrates' Court and I will make no order as to remand.

38MS BROUGHTON:  As Your Honour pleases.

39HIS HONOUR:  I will transfer it to be heard on 10 June, so if he didn't turn up on the 10th, they would get a warrant. 

40MS BROUGHTON:  That's right.

41HIS HONOUR:  So that solves all that.

42MS BROUGHTON:  Thank Your Honour.

43HIS HONOUR:  Either way, whether he was on bail or not, yes.  Yes, all right, 9.30 tomorrow.