Director of Public Prosecutions v Mercer (a pseudonym)
[2019] VCC 1193
•30 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT MERCER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2019 | |
DATE OF SENTENCE: | 30 July 2019 | |
CASE MAY BE CITED AS: | DPP v Mercer (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1193 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Gray | Office of Public Prosecutions |
| For the Accused | Mr A J Patton | Theo Magazis & Associates |
HER HONOUR:
1 Scott Mercer[1], you were charged on one indictment with two charges of false imprisonment, charges of causing injury intentionally and causing injury recklessly (each in the alternative to one another), and one charge of attempting to pervert the course of justice. You pleaded not guilty to all charges on this indictment and a trial by jury ensued. You were found guilty of one charge of false imprisonment which carries a maximum penalty of ten years’ imprisonment, and one charge of attempting to pervert the course of justice, which carries a maximum penalty of 25 years’ imprisonment. Prior to trial, you pleaded guilty to a charge of persistent contravention of family violence intervention order on a separate indictment, which carries a maximum penalty of five years’ imprisonment.
[1] A pseudonym.
2 In addition to making oral submissions, your Counsel relied on a Written Outline of Submissions for plea hearing (Exhibit 1), and also tendered a Psychological Report dated 14 July 2019 prepared by Ian Mackinnon, Consultant Psychologist (Exhibit 2), and the Reasons for Sentence of Her Honour Judge Gaynor of this Court dated 23 October 2014, in relation to one of your previous matters (DPP v Scott Mercer (a pseudonym), Exhibit 3). I have since received a four-page notification to prisoner of results indicating your clean urine samples (which I will now exhibit as Exhibit 4). I have also had regard to those documents in formulating my reasons for sentence.
3 The facts of the offences of which you have been found guilty are as follows.
4 You and the complainant, Nina Meiron[2], had been in a de facto relationship, which started in 2002 and ended in 2009. On 6 August 2017, the relationship recommenced. You were both heavy users of illicit drugs.
[2] A pseudonym.
5 On Sunday 26 November 2017, at about 5.00am, you decided to go to the Crown Casino in Melbourne. At 6.00am, you and Ms Meiron left in your ute. You drove for some time. It began to rain heavily, and you started to drive erratically and slammed on the brakes, causing the car to skid. At a roundabout at Governor Road, Mordialloc, you lost control of the vehicle and mounted the median strip, causing a flat tyre. Ms Meiron jumped out of the car and ran across Boundary Road and down Governor Road, Braeside, where she hid behind a tree. You demanded that she return to your vehicle, and drove the car towards her, then you stopped the car and got out. Ms Meiron ran across the road and you again drove towards her. She ran back across Boundary Road and you dragged her back across the road and back to your vehicle. This final act is the commencement of the false imprisonment charge of which you were found guilty, which was agreed between the parties in the course of your plea in mitigation of penalty to have lasted approximately half an hour.
6 After forcing Ms Meiron into your car, you drove to the industrial area of Braeside. At 9.30am, you pulled into a BP Service Station situated at 1400 Princes Highway, Oakleigh. Ms Meiron escaped and ran from the vehicle into the station. She jumped the counter, and asked staff to call the police. The service station attendants locked the doors, and whilst you attempted entry, you then returned to the vehicle and left the area. Ms Meiron locked herself in a small office behind the counter and called triple zero. In the course of your trial, your Counsel drew upon evidence that Ms Meiron gave – that she was, at the time of the false imprisonment, drug affected and in the grip of a mental health breakdown, and that she willingly got back into the car. By its verdict, the jury rejected that version.
7 Police and ambulance officers attended. Ms Meiron was extremely agitated and erratic, and was taken for medical treatment.
8 On 28 November 2017, you were arrested in a unit in Campbell Street, Frankston. You were transported to the Frankston Police Station, where you were served with a complaint and warrant in relation to an Intervention Order in which Ms Meiron was the protected person.
9 In breach of this order, you telephoned Ms Meiron from prison 17 times to her landline. You used a fellow inmate’s phone list to contact her. In the course of one of those conversations, you admit knowledge of the police taking out the intervention order that you are breaching a deposition (D389-390). The 17 calls is the conduct referable to your proceeding charge of persistent breach of intervention order, to which you pleaded guilty, and I am told that it was always your intention to plead guilty to this charge.
10 In the course of those calls, you had the following discussions with Ms Meiron, among others.
11 In a recorded conversation on 6 December 2017 at 14:05:18, the following conversation took place:
· Ms Meiron, “Now what do I do about these charges because I can’t do anything about it they were already”;
· You said, “Yeah well, well you just tell them you weren’t in your right state of mind”;
· Ms Meiron, “Just tell me what you”;
· Mr Mercer, “Listen”.
· Ms Meiron, “What?”;
· Mr Mercer, “You tell them you weren’t in your state of mind when you made these things, your”;
· Ms Meiron, “Yeah, but I did”;
· You said, “You’re just bipolar and fucking everything”;
· Ms Meiron, “Yeah, I did”;
· You, “Was just (indistinct) and you want to drop the charges”.
12 On 6 December 2017 at 14:37:17, the following conversation took place:
· You, “Hey well I sorted something out, yeah”;
· She said, “What? What?”;
· You said, “I’ll get a lawyer, I’ll pay for a lawyer”;
· She said, “Ah huh”;
· You said, “Okay for, to call ya and make a stat dec. You’ve got to make a stat dec saying you weren’t in the right state of mind. You can’t even remember making these allegations”;
· You said, “Like, yeah, yeah, and I’ll get someone to call on my phone, yeah, like a lawyer and that and that and just, like I said to make a stat dec with him I’ll organise my lawyer to get another lawyer for ya, okay, for you to do a stat dec cause you need to do a stat dec”;
· She said, “That’s fine, I don’t care what”;
· You said, “Saying, saying that you weren’t, yeah”;
· She said, “Whatever. I just need all of this to be over and I need to leave Victoria”.
13 On 6 December 2017 at 16:13:26:
· She said, “I heard something, I heard something different, it doesn’t really matter. What do I need to write down about what, is what happened. Basically I was going psycho, you said basically, she said having a breakdown going nuts and then, we were on drugs you were going”;
· You said “Yeah yeah, listen you got to see a lawyer, you gotta go see a lawyer’’;
· Then you said, “Well you have to do on your behalf because I can’t do it on my behalf”;
· She said, “Why can’t I just go to the cops and write it out there?”;
· You said, “Because the cops will fuckin turn on ya”;
· She said “I will go get a lawyer and do it there, what do I do then”;
· You said, “Are you even gonna like”;
· She said, “Yes, I am”;
· You said, “Are you interested in getting me out?”’;
· She said, “That’s that”;
· You said, “Do you want me to get out or not?”;
· She said, “Can you just take the tone out of your voice because you caused this shit”;
· You said, “Well I am trying to get something through to you so you understand”;
· Later, you (indistinct) saying you weren’t even in the right state of mind when you made these things, you can’t even remember what you said, okay;
· She said “Yep okay so denying the whole thing all right, fine”;
· You said, “And yeah, just saying that she said I will do that I will do that”;
· You said, “Isn’t what it seems”;
· She said, “I will do what I have got to do to get you out”.
· You said, “Just say you are trying to help me, I did not realise that at the time”.
14 Your words in these exchanges constituted the charge of attempting to pervert the course of justice. You pleaded not guilty to this count, and your Counsel contended that your conduct was merely lawful persuasion aimed at securing a legitimate end – that is, you were urging a drug-affected, mentally ill woman to point that out in a statutory declaration. You were, nonetheless, found guilty by the jury.
15 At trial, Ms Meiron was called as a witness for the prosecution, but her sworn evidence exculpated you from the charges to which you pleaded not guilty. She was declared unfavourable following application by the prosecution, and statements that she had made to police were put to her as prior inconsistent statements. Directed acquittals followed in relation to the charges of intentionally and recklessly causing injury. The jury also acquitted you of one charge of false imprisonment, an allegation in respect of which there were no witnesses called by the prosecution to confirm the complainant’s earlier account to police. In relation to the proceeding charge of false imprisonment, a number of civilian witnesses were called by the prosecution, who gave evidence as to your anger prior to forcing Ms Meiron into the car, and the force that you used to take her to the car.
16 However, in relation to the charge of attempting to pervert the course of justice, I am obliged to sentence you in accordance with the case as put by the prosecution and as accepted by the jury – that is, at the time of making the calls from prison, you intended to persuade Ms Meiron to “drop the charges.” I do not and cannot sentence you on the basis that, by Ms Meiron giving an entirely different and exculpatory account before the jury, your conduct had its desired effect.
Plea of guilty
17 I accept and take into account in mitigation of penalty that you have pleaded guilty to the count of persistent breach of intervention order, and that it was always your intention to do so. This was, of course, in the face of an overwhelming case, in which every breach of the order had been captured by Arunta recording.
18 Mr MacKinnon, psychologist, noted that at the time of his assessment of you on 20 June 2019 (Exhibit 2), you appeared genuinely remorseful over your history of offending, and deeply regretful of the turbulent and destructive side of the relationship you shared with Ms Meiron. I accept that your plea to the persistent breach charge reflects your remorse. However, given your pleas of not guilty to the remaining charges, I will make no allowance for remorse for commission of those offences, though I do understand that since the verdict you are developing insight into your offending.
Personal circumstances
19 You are now 36 years of age, and were 34 at the time of offending. You were born in Australia and were raised by your natural parents (who are of Lebanese Druze heritage). Your father’s main work was in cafes, and your mother worked in cafes, and in your uncle’s pizza shop. Your parents remain married. Your father has retired, and has cardiac problems and diabetes.
20 You have two brothers and one sister. You describe your parents as being strict and quite traditional in their parenting approach. You described your childhood to Mr McKinnon, psychologist, as being really sheltered, and then you got bullied at school, until you started standing up for yourself.
21 You attended Clayton South Primary School, and then Westall Secondary School, where you completed part of year 7.
22 At age 13, your family travelled to Lebanon, where you lived for 18 months. Whilst you were there, you attended school for only one hour per day.
23 In Lebanon, you were sexually abused by a male family member. Understandably, this has caused you enormous trauma, and you came back to Australia very unsettled. You consider that you have blocked out the abuse for most of your life and have never really spoken about it, nor discussed it with your family, nor sought counselling.
24 Upon your return to Melbourne when you were 14 or 15, you attempted to complete year 8 at Mordialloc-Chelsea College, but you found that your attempts at school were thwarted by not being able to read or write properly; indeed, Mr McKinnon assessed your general cognitive functioning as falling within the normal adult range, and noted that you appeared to possess English language skills at around the Year 7 level.
25 You then left school and have been employed in the construction and building industry sporadically since you were 17.
26 Like your father, you suffer cardiac problems, and have had three heart attacks. You are on medication for your heart condition, and you have had two stents put in.
27 Since your early adolescence, you have used substances including alcohol, cannabis, speed, ice, GHB, heroin, MDMA, benzodiazepines, and cocaine.
28 You told Mr McKinnon that, since 25, you have regularly abused ice, and you have had extended periods when you were habitually using 1g a day, either smoked or injected. At times you have gone without significant periods of sleep for five or six days on end. You have suffered heightened visual and auditory hallucinations, paranoia, anxiety and anger as a result of your misuse of the drug. You have previously attended for substance abuse counselling at a Frankston clinic, and you have completed drug and alcohol programs during past terms of imprisonment, including a 24-hour program whilst you have been on remand for these offences.
29 Prior to your remand on these matters, you were prescribed the antipsychotic medication, Zyprexa, in response to symptoms arising from your chronic abuse of ice.
30 You first became involved with Nina Meiron, the complainant, when you were 19 years of age. You have broken up and reconciled on multiple occasions, and your numerous periods of imprisonment have added to the instability of the relationship. She has a 17-year-old daughter. Your relationship is marked by shared illicit substance abuse.
31 Ms Meiron visited you after you were remanded into custody on these offences, however was eventually banned for a period by the authorities. Your Counsel has informed me in the course of the plea that, following trial, Ms Meiron provided her contact details for you to get in touch with her, but that you have chosen not to put her name on your list, and that you recognise that it is in both of their interests that you cease contact (in reflection of your volatile relationship and mutual love of illicit drugs). This if I can say is very sensible, and another sign of your growing understanding of what drives your offending behaviour.
32 You are employed as a unit billet in prison as a reward for your good conduct. Whilst on remand, your urine screens have been clear of drugs (Exhibit 4). You sporadically work out in the gym whilst in custody, which serves your mental health well.
33 You have told Mr McKinnon that you are determined to stay clean and would like to work in the building industry, or in landscaping with your brother, and live with your parents upon release.
34 Mr McKinnon assessed your psychological state and concluded that you appeared to be suffering “residual” or mild Post-Traumatic Stress Disorder, with its primary antecedents in the sexual abuse you experienced when you were about 13 years old, being exacerbated by later traumas and difficulties including several concussive episodes, conflict in the criminal milieu and several terms of imprisonment. He opines that you do not possess an entirely antisocial or criminal disposition; however, you have developed some antisocial tendencies during your troubled and unstable life, and you are more likely to act out in a criminal manner when struggling with heightened personal stressors. He noted that you appeared intensely depressed and anxious at the time of assessment.
Prior criminal history
35 On 23 October 2014, you pleaded guilty in this court to five charges of common law assault, one charge of intentionally causing injury, one charge of threatening to inflict serious injury, and one charge of false imprisonment. Those charges related to a protracted incident involving your domestic partner of 12 months. On 14 April 2012, you had smoked ice, then interrogated her about drugs, committed behaviour including slapping her across the face, punching her to the head with a clenched fist, you picked her up by the hair and threw her back on the bed, and stood on her feet, you whipped her across the hand with a wire coat hanger, you threatened to inflict serious injury, then punched her with a clenched fist to the stomach, pushed your knee into her chest, preventing her from breathing, and subjected her to a false imprisonment for several hours before she escaped to a neighbouring house, raising the alarm. You then visited Ms Meiron for assistance, and were arrested in Queensland.
36 Her Honour Judge Gaynor sentenced you to a total effective sentence of three years and six months, with a minimum of two years and six months before parole eligibility. I am told you served the head sentence, and were released on 4 August 2017, just short of four months prior to committing these offences.
37 Her Honour reviewed your criminal history prior to that conviction as follows:[3]
[3]Exhibit 3; DPP v Scott Mercer (a pseudonym) [2014] VCC 1757 at [24]-[32].
“You have a fairly extensive prior criminal history which began in 1999 with a shoplift charge, which was dealt with at the Frankston Children’s Court.
In 2002 you received 12 months’ detention in a youth training centre for armed robbery and theft, which your counsel informed me involved a group of youths, of which you were one, holding up a person with a pair of scissors. You had no memory of what was taken.
In 2007 you were placed on a community-based order and suspended sentence for driving whilst disqualified and criminal damage.
In 2009 you were placed on a 12 month intensive corrections order for unlicensed driving and refusing to accompany police for a breath test.
In 2011 you were placed on a suspended sentence by the La Trobe Valley Magistrates’ Court on charges of driving whilst disqualified, refusing to accompany police for a breath test, speeding and use of an unregistered vehicle.
In August 2011 you were fined $500 by the Melbourne Magistrates’ Court for recklessly causing injury, which was an assault you apparently became involved in whilst drunk. …
Then in December 2012 you were ordered to serve the unexpired portion of an intensive corrections order, which you had breached, amounting to 361 days. You were also dealt with for breach of suspended sentence, and the effective total term of six months was reimposed and you were sentenced to six months’ imprisonment as well on the breaching charge. …
In August 2013 you were sentenced to a total effective sentence of four months for charges of shop theft, intentionally damaging property, contravening a family violence order … failing to answer bail and criminal damage.
Finally, in July [2014] you were fined $1,000 on charges of affray and attempted possession of amphetamine.”
Moral culpability, and objective gravity of the offences
38 In relation to the proceeding charge of false imprisonment, a number of civilian witnesses were called by the prosecution at trial who gave evidence as to your anger prior to forcing Ms Meiron into the car, and the force that you used to take her to the car. Witness Gabrielle Weis[4] gave the following evidence:[5]
[4] A pseudonym.
[5]T211
“He was fuming. He was so angry with her. She hid in bushes, like a dog, on the ground. And he pulled her out by the hair. And that’s how he put her back in the car by her hair.”
The witness was sufficiently concerned by what she saw that she and her partner followed your car in their car, until they eventually lost you.
39 Whilst you were affected by drugs, including ice, on the morning which no doubt fuelled your rage, I consider that this charge reflects your underlying rage, your violence towards your partner, and your need to control her. She tried to get away from you and your car, but she could not. The offending in relation to the false imprisonment endured for a period of 30 minutes.
40 Courts have repeatedly emphasised the need to condemn family violence. Though I find that the offending was at the lower end of criminality for this offence generally, and was unaccompanied by other acts of violence, save for the ones I mentioned at the start of the charge, I nonetheless have regard to the fact that the victim was your domestic partner, she was treated in an inhumane and demoralising way in placing her in your car, in aggravation of offending. You were released from prison just shy of four months prior to this offending for committing the very same offence of false imprisonment to your earlier domestic partner. You also have three prior convictions for breach family violence intervention order.
41 In relation to your charge of attempting to pervert the course of justice, it has been said many times that the administration of justice depends upon the system operating so that people who commit crimes are pursued, are brought to court and are punished, and those who take part in trying to interfere with that system commit a grave injustice insofar as the community is concerned. You attempted to persuade a victim to withdraw her allegation to police. This is reprehensible – it was motivated by your self-interest and need for control. Whilst it was unaccompanied by threats or violence, it was protracted and repeated, and it preyed upon Ms Meiron’s vulnerabilities. And of course, it was also committed in breach of your intervention order, which was unsuccessful in preventing you from continuing to control Ms Meiron.
Relevant sentencing principles and current sentencing practices
42 I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and in your case, specific. The courts consider general deterrence is to be a significant purpose of sentencing, both in relation to offences of family violence, and to offences which relate to the administration of justice, of course.
43 It is plain that specific deterrence is needed in your case, given your prior criminal history.
44 I have had careful regard to the need for an overall sentence which reflects the totality principle of sentencing, which will be achieved by a mechanism of significant concurrency between the sentences imposed upon the false imprisonment and persistent breach charges, and a higher measure of cumulation for the attempt to pervert the course of justice, as urged upon me by the prosecution.
45 The sentences I will impose will punish you and denounce your behaviour, whilst allowing for your continued efforts at rehabilitation. I commend you for your abstinence from illicit drugs whilst in custody and also your completion of a number of courses over the years during your times in custody. Mr Mackinnon expresses the view that you appear to have significant potential for rehabilitation, but he did not set out the empirical basis of that opinion. I am much more cautious than that about your prospects for rehabilitation, given your long criminal history, and the marked similarity between the false imprisonment charge in 2004 and the false imprisonment that is before me, especially in view of the fact that the sentence of imprisonment had only expired a matter of months prior to this offending. I consider that you do have some prospects for successful rehabilitation provided that, for the first time in many years, you can resist the temptation to consume illicit drugs whilst in the community, which has been so detrimental to you for so many years. It would also be of assistance if you can follow through on your sincere intentions to resume work in the building industry, or landscaping with your brother.
Sentencing submissions
46 Your counsel accepted, as was submitted by the prosecution, that the only sentence available to me having regard to all of the relevant sentencing principles in this case was a term of immediate imprisonment.
Sentence
47 Accordingly, I sentence as follows.
48 On the charge of false imprisonment, I will impose three years’ and six months’ imprisonment.
49 On the charge of attempting to pervert, three years’ six months’ imprisonment, 18 months of which is to be served cumulatively upon the three years, six months, and the false imprisonment which is the base.
50 On the charge of persistent breach of intervention order, 12 months, three months of which is to be served cumulatively upon other sentences.
51 That gives rise to a total effective sentence of five years’ and three months’ imprisonment, and I order that a minimum of three years and nine months be served before parole eligibility.
Section 6AAA declaration
52 I declare presentence detention of 609 days, and to the extent to which I can give a 6AAA indication, I would otherwise have imposed 18 months on the persistent breach were it not for the plea of guilty.