Director of Public Prosecutions v Merrill (a pseudonym)
[2016] VCC 1215
•18 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| ELLIOTT MERRILL (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2016 | |
DATE OF SENTENCE: | 18 August 2016 | |
CASE MAY BE CITED AS: | DPP v Merrill (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1215 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – engaging in sexual intercourse with a child outside Australia – engaging in sexual activity (other than sexual intercourse) with a child outside Australia – producing child pornography material outside Australia – possessing child pornography – plea of guilty
Legislation Cited: Criminal Code (Cth) 1995, s272.8(1); 272.9(1); 273.5(1)(a)(ii); Crimes Act (Vic) 1958, s70(1); Sex Offenders Registration Act 2004; Crimes Act (Cth) 1914; Sentencing Act 1991
Cases Cited:Clarkson v R; EJA v R [2011] VSCA 157; R v Ellis [1986] 6 NSWLR 603, 604; Ryan v R (2001) 206 CLR 267, 272 (McHugh J), 295-296 (Kirby J), R v Brazel (2005) 153 A Crim R 152, 159; R v Doran [2005] VSCA 271; R v CLP [2008] VSCA 113; R v Boulton [2014] VSCA 342; DPP v Okoka (Cth) [2016] VCC 172; Cameron v R [2002] HCA 6
Sentence: Total effective sentence of 5 years 3 months, 3 year non-parole period set for Commonwealth offences
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Stevens | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P Casey | Mr Darroll Nelson |
HER HONOUR:
1 Elliott Merrill,[1] you have pleaded guilty to four charges:
Charge 1: Engaging in sexual intercourse with a child outside Australia contrary to s.272.8(1) of the Criminal Code (Cth) which carries a maximum penalty of 20 years’ imprisonment.
Charge 2: Engaging in sexual activity (other than sexual intercourse) with a child outside Australia contrary to s.272.9(1) of the Criminal Code (Cth) which carries a maximum penalty of 15 years’ imprisonment.
Charge 3: Producing child pornography material outside Australia contrary to s.273.5(1)(a)(ii) of the Criminal Code (Cth) which carries a maximum penalty of 15 years’ imprisonment.
Charge 4: Possession of child pornography contrary to s.70(1) of the Crimes Act 1958 (Vic) which carries a maximum 5 years’ imprisonment.
[1] Elliott Merrill is a pseudonym.
2 Your offending is serious and that is reflected in the maximum penalties that I have already outlined and in particular, the Commonwealth offending relating to Charges 1 to 3 reflects the Australian Government's adoption and implementation of international obligations to protect children from sexual exploitation by Australian citizens overseas.
3 You were apprehended by the Australian Federal Police (AFP) on Monday, 16 November 2015 following your arrival at Melbourne International Airport on a flight from Kuala Lumpur, Malaysia. Following a baggage search, Australian Border Force officers located a number of images of a naked young Asian female on your Apple iPhone.
4 You were cautioned and informed of your rights. When asked about the images about that female, you stated they were of your girlfriend, La Ngọc Chung,[2] who was born on 12 November 1999, who is the victim in this matter. You told the Australian Federal Police that you had met the victim on 17 July 2014 and had travelled to see her five times over the past 18 months. You also told police officers that you had been intimate with the victim since January 2015.
[2] La Ngọc Chung is a pseudonym.
5 Members of the Victoria Police Joint Anti Child Exploitation Team (JACET) arrived and they examined the images contained on your phone and determined that those images constituted child pornography material within the meaning of the Criminal Code (Cth), s.473.1.
6 They then entered the AFP interview room and spoke with you. During this conversation, you agreed to attend the AFP Airport Office voluntarily and took part in a digital record of interview.
7 During that interview you made full admissions concerning the nature of your relationship with the victim. You stated that you had met in Ho Chi Minh City, Vietnam, on 17 July 2014, outside a massage parlour where the victim was working. Initially the relationship was one of friendship not romance. You paid her rent, bought her a laptop and a mobile phone and over time you both remained in communication through Facebook.
8 At first you believed the victim was 19. Her Facebook page had her age recorded as 19, however, you told police that you found out about her true age in November 2014 when she turned 15.
9 From the first contact you visited the victim multiple times. You told police that in December 2014, when you stayed together in a hotel for the first time, she made sexual advances. At first you said “no” to those advances but over time the relationship became sexual. You told police that it became sexual in January 2015.
10 The victim changed her name on her Facebook profile to “La Merrill” and her status was noted as “engaged”. You told the police that you had spoken about getting married.
11 Your offending came to the attention of the authorities when the victim put in an application for a tourist visa to visit Australia noting that you were both in a relationship.
12 You told police that it was planned that the victim was to travel to Australia in December 2015 and that you were proposing to holiday together.
13 You took the naked photos of the victim that were located on your iPhone in your hotel room in Phuket, Thailand in October 2015, two weeks prior to the victim’s 16th birthday. That constitutes the circumstances of Charge 3.
14 When interviewed by police you told them that you did not consider the photos were child pornography as you saw the victim as your future wife. You denied looking at child pornography or downloading child pornography. You admitted that you had sent the victim photos of yourself naked on one or two occasions. You admitted that you had done the wrong thing by having sex with the victim.
15 You were charged by police and later bailed.
16 Subsequently, a search warrant was executed at your home. As a result of the search, various items were located, examined and seized. The police also searched a piece of luggage that had been previously misplaced that had been re-located at the airport.
17 Following forensic examination of the various items located during the search, police confirmed in addition to the photos taken of the victim that there were a total of 61 files determined to be child pornography. The child pornography images were classified as per the Australian National Victim Image Library (ANVIL) model and classified in accordance with this table.
Cat 1 Cat 2 Cat 3 Cat 4 Cat 5 Total Images 49 1 6 2 0 58 Videos 0 0 0 3 0 3 Totals 49 1 6 5 0 61
18 I have viewed a sample of the material and agree with the categorisation of the various images.
19 Examination of your iPhone, laptop and the USB stick found in your possession revealed 61 unique images and the victims were girls aged between eight and 16.
20 Category 1 images depict children aged between approximately 10 to16 years of age posing naked or partially clothed in a sexually explicit manner, many with a focus on the genitals and that is per the categorisation of the ANVIL model Category 1.
21 Insofar as the sample of the images I viewed in that category, I noted that they were primarily young victims posing partially clothed in a sexually explicit manner without a particular focus on the genitals but there were some that did.
22 This matter was the subject of a committal proceeding. On 11 March 2016 the matter proceeded by way of a straight hand-up brief and you indicated that you would plead guilty to the charges on the indictment. It is accepted by the Crown that your plea of guilty has been entered at the earliest opportunity.
23 The victim confirmed with Vietnamese Police that she had known you since July 2014. When you visited her, you would hire accommodation and stay together. She stated that she initiated the sexual relationship with you and that you had sex often on the trips you took together.
24 She confirmed that the photos that were found on your iPhone on 16 November 2015 were photos that you had taken of her on your mobile phone and iPad whilst you were staying together in a hotel in Thailand.
25 In the course of the plea hearing, a document that was described as a victim impact statement dated 16 June 2016 was filed and the statement was translated from Vietnamese to English.
26 In the statement, the victim purports to say that she has no emotional, psychological or physical impacts as a result of the offending. She describes her situation as having changed for the better following her relationship with you. She states that prior to meeting you, she was a depressed person with no motivation to live and was suicidal. Following the commencement of the relationship with you, she says that you encouraged her and prevented her silly thoughts and helped her to strive to be a better person. She describes you as being the motivation for her continuing with her life. She feels very sad and terrible about what has happened because of the charges being laid. She purports to take responsibility for what occurred.
27 Mr Merrill, consent is not a defence to the offence of engaging in sexual intercourse with a child outside Australia or engaging in sexual activity (other than sexual intercourse) with a child outside Australia.
28 The fact that the victim purports to accept responsibility for what has occurred is not a relevant mitigating factor. This is based on the absolute prohibition on sexual activity with a child being founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[3]
[3]Clarkson v R; EJA v R [2011] VSCA 157 at [3].
29 The Court of Appeal in the matter of Clarkson v R: EJA v R concluded that a child’s consent can never, of itself, be a mitigating factor. Proof that the child consented is the beginning, rather than the end, of the sentencing court’s inquiries. In assessing the gravity of the offence and the offender’s culpability, it is said that the court’s attention will be directed not at consent as such but at the circumstances in which consent came to be given.
30 On the basis of all the material before the court, I am satisfied that you were in an intimate relationship of a sexual kind with the victim. There was a significant age difference and/or power imbalance between yourself and the victim. I accept that initially the relationship was founded on genuine affection rather than predatory behaviour but nonetheless I still consider the fact that you went ahead and had a sexual relationship with the victim knowing that she was underage and knowing that such actions were wrong means that your culpability is high. You were an older and more mature man who should have been cognisant of the potential for harm upon the child as a consequence of your illicit sexual relationship. The victim was only 14 and 2 months at the time of the commencement of the sexual activity and you were almost 60.
31 In sentencing you, there is a need for the court to emphasise both general and specific deterrence. I am satisfied having regard to the impact of the arrest upon you and your experiences subsequently, it is unlikely that you will re-offend in a like manner in the future. However I do consider that there is a real need that you undergo appropriate treatment in respect to this and I note that you have expressed a willingness to undertake sex offenders treatment program.
32 You are now aged 60 and you are retired. At the time of the offending, you were aged 59. You have no prior criminal history.
33 I have had regard to the contents of the psychological report prepared by Mr Bernard Healey, consultant clinical psychologist, dated 29 March 2016 and the report of Mr Ian Joblin, forensic psychologist, dated 19 June 2016.
34 You were referred by a general practitioner under a mental health care plan to Mr Healey in respect to treatment for depression, anxiety and social issues and also to enable a report to be prepared for this matter.
35 Mr Healey regularly reviewed you from 9 December 2015 up until 29 March 2016.
36 I have noted your background. Your parents were Ukrainian who were refugees who settled in Australia after World War II. Both your parents are deceased. You were one of five children and two of your siblings have died. You have little contact with your surviving siblings. You have two adult sons from a previous de facto relationship. Having regard to the circumstances of your offending and the laying of the charges, they no longer have a relationship with you.
37 You are in poor physical health. You have documented lung problems. You were diagnosed with sarcoidosis in 2008. You also suffer with coronary artery disease and have had a history of anxiety and depression.
38 In the past you have experienced two failed significant intimate relationships, the details of which are comprehensively set out in Mr Healey’s report. Mr Healey describes you as a passive, rather naïve man who was subservient in your previous relationships and when those relationships broke down, you became even more submissive and less assertive for the sake of retaining a relationship with your two sons born of the first relationship.
39 You have an excellent work history. You completed your secondary education, matriculating and then you completed a course in Civil Detailed Drafting. From 1976 you worked at the Victorian Government Titles Office where you remained for most of your working life.
40 Mr Healey in his report confirms that you are anxious, nervous and isolated. On the basis of the Static-99 inventory he states that reveals a low risk of further sexual offending. His finding was based on the nature of the offending for which you have been charged bearing in mind that you had no previous offences of this nature and no offences subsequently.
41 He confirms that you have remained particularly self-berating and ashamed of your conduct throughout his treatment. He states that you acknowledge the wrongfulness of your conduct and that you understand that you face the prospect of loss of liberty. That has caused you a great of deal of anxiety and concern about your ability to cope within the prison system, given your significant health problems and need for continuing specialist care.
42 Mr Joblin confirms in his report that you presented with serious psychological issues. He noted a gross tremor and high level of anxiety and considered you to be clinically depressed. He considered a strong attraction to the victim was totally consistent with your disordered personality. He said the issue of your personality is important and you have a pervasive pattern of social and interpersonal deficits. You are a man with few close friends and suffer from excessive social anxiety. You found many of those features were relieved when you were overseas and particularly when you were with the victim.
43 He states the offending for which you are before the court has a strong psychological component. The relationship you felt with the victim became meaningful to you because of your breakdown of past relationships and feelings of rejection. He states that this issue is pivotal and cannot be underestimated in terms of the impact it has had on you.
44 Mr Joblin considered that incarceration would be totally destructive for you.
45 He states because of your limited ineffective personality, you were gratified by the relationship that you had formed and that the end of that relationship has been extremely distressing for you as you had placed so much emotional involvement into it consistent with your personality deficits.
46 I have noted your fragile psychological condition. I have taken that into account as providing a context for the offending.
47 In addition to the reports, I have obtained a report from Michael Daffern, who is a psychologist, a principal consultant psychologist at the Victoria Institute of Forensic Mental Health. In his report, he documents your history of depression over the past 15 years for which you have received medical treatment. He postulates it is possible you were depressed at the time of the offending and it is likely that your mood was improved when you spent time with the victim or thinking about her. He considers that your depression whilst it was operative at the time did not have a significant direct impact on your mental capacity but your low mood may well have led to you seeking intimacy and sexual satisfaction.
48 He believes that your depression may result in a term of imprisonment being more difficult for you and he noted the difficulties that you had already experienced following the charging of these offences in terms of being rejected by your sons and the problems you have had being taunted by other prisoners. He postulated that he did not believe that there was a serious risk that imprisonment will have a significant adverse long-term impact on your mental health.
49 He recommended that you participate in a sex offenders treatment program and he stated that his view was your risk of reoffending including contact offences is relatively low but said that it was a tentative view that he expressed.
50 He recommended that you be further assessed of your risk of reoffending following sentencing. I have had regard to those matters in addition to the expressed opinions of Mr Joblin and Mr Healey. Overall I consider that with appropriate treatment that your risk of reoffending is low.
51 I have had regard to the reference provided by Mitchell Wagner[4] who confirms that he has known you for many years. He is aware of the charges. You confided in him that you never intended to contravene the law but naïvely believed the victim as to her age. You understand and now accept that you have breached the law. He states that the charges have had a major detrimental impact on your life and he referred to the termination of your employment, the fact that your children have disowned you and your health has suffered. He states in his view you are very remorseful for your offending.
[4] Mitchell Wagner is a pseudonym.
Sentencing submissions
52 Mr Casey on your behalf highlighted a number of matters in mitigation.
53 I accept, firstly, that the court ought to have regard to your plea of guilty. It was entered at the earliest stage possible. You are entitled to a sentencing discount accordingly. I accept the plea represents a willingness to facilitate justice and is indicative of genuine remorse. I also accept there is real utility in your plea.
54 In addition, you were fully co-operative with the authorities at the time when you were first spoken to at the airport and during the formal recorded interview. You gave full and frank answers and comprehensively detailed the nature of your intimate relationship with the victim. You essentially told police all the information which comprises the evidence the subject of the first three charges on the indictment.
55 Having regard to the principles expressed in the decision of Ellis,[5] you are entitled to considerable leniency for your confession. This principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and making a confession of guilt of that offence.
[5]R v Ellis [1986] 6 NSWLR 603, 604 (Street CJ).
56 This principle has been further followed in many cases such as Ryan v R (2001) 206 CLR 267, 272 (McHugh J), 295-296 (Kirby J), R v Brazel (2005) 153 A Crim R 152, 159 [21] (Callaway JA), R v Doran [2005] VSCA 271, [14] and R v CLP [2008] VSCA 113.
57 Your genuine remorse is further evidenced through your expansive answers that you gave in your record of interview and is evident from the discussions held between yourself and Mr Healey and Mr Joblin and confirmed in the reference given by Mr Wagner.
58 Given your insight into your offending, I consider that you do have good prospects of rehabilitation. I have had regard to the impact of the offending on you and accept that following the laying of the charges, the impact has been great and you lost your job of 39 years and you no longer have meaningful relationships with your two sons and you are a very sad, lonely and isolated person.
59 I have already referred to the risk of reoffending and I accept the finding of Mr Healey that you are low risk of reoffending but I consider that it is necessary for the future that you undergo treatment for sex offences.
60 I have had regard to your very significant medical history and poor health. You are a fragile man who suffers long-term depression and anxiety in addition to the documented physical conditions. I accept that jail will be more onerous for you having regard to your poor health. There is also a risk that your condition may be impacted upon by reason of imprisonment.
61 Having viewed the material the subject of Charges 3 and 4, I consider that your offending is at the lower end of the spectrum for this sort of offending. I have had regard to both the number of images, the nature of what is depicted and the age of the victims.
62 Ultimately, Mr Casey sought a Community Correction Order and referred the court to the guideline judgment of Boulton.[6] He further submitted a wholly suspended sentence was an option under the Commonwealth legislation in respect to the first three charges on the indictment. He relied heavily on the fact that your relationship with the victim was one of genuine respect, care and concern albeit it later transgressed legal boundaries. He submitted that in the circumstances of this case that you have rebutted the presumption of harm.
[6]R v Boulton [2014] VSCA 342.
63 Given the victim’s history of abuse, by and within her family, the sex industry that she had been subjected to by her parents and her already damaged circumstances, he submitted that your genuine attempts to assist her far outweighed any harm that the sexual relationship had over the ten-months. Further, she was just short of being able to consent. He referred to the victim's statement, the fact that she was still young but widely experienced and the fact that she regarded herself as owing her life to you because of your relationship.
64 In the joint judgment in Clarkson, it was recognised that an offender could rebut the presumption of harm but it is difficult to do so, and to the extent that such a submission relies upon the consensual nature of the sexual activity, the court said it would draw on its assessment of the circumstances in which the consent came to be given, in particular the age difference between the offender and the victim, the nature of the relationship between them and the circumstances in which the sexual activity was initiated.[7]
[7]Adamson v The Queen [2015] VSCA 194 [20], citing Clarkson v R (2011) 32 VR 361 [52]-[53].
65 I quote from that judgment. They say: "We think it likely that such an attempt at rebutting the presumption would succeed only in very limited circumstances. For obvious reasons, a statement from the child victim would be unlikely to satisfy the court that no harm had been caused or that there would be no long-term consequences. Independent expert evidence to that effect would ordinarily be essential. Moreover, it would only be in a very clear case that such evidence would warrant a material reduction in sentence. The task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences."
66 Those principles apply here. I do not consider that the victim impact statement on its own in this case displaces the presumption of harm to the victim. I have approached this matter on the basis that the victim is a vulnerable child who had a history of sexual abuse and associated mental health issues, who was highly sexualised, working in a massage parlour from a very young age. I consider her to be a vulnerable victim who has been exploited by your actions. I do not consider that the presumption of harm has been rebutted.
67 Mr Stevens, on behalf of the Commonwealth, emphasised the serious nature of the charges. He referred to the expressed intention of Parliament reflected in the maximum penalties.
68 He emphasised general deterrence is regarded as the paramount sentencing consideration because of the public interest in preventing this sort of offending involving a child and also because of the public interest in stifling the provision and use of child pornography.
69 I have already referred to the presumption of harm and I will not go into that further. In this case, he emphasised that the victim was very young and vulnerable because of her past history of sexual exploitation. Mr Stevens emphasised that this sort of offending was prevalent and difficult to detect. He emphasised the length of the inappropriate sexual relationship and the large age disparity. Further, he submitted, the possession of pornography does create a market for this sort of offending. He emphasised the fact that there had been four visits to see the victim over the charged period and always with the expectation that there would be sexual activity.
70 With respect to Charge 3, he accepted it was at the lower end the scale for this sort of offending and he highlighted that the images were Category 1 type offences. Nonetheless, you produced those images and retained those images on your iPhone.
71 With respect to the possession of the pornography, Charge 4, he highlighted that that was an objectively serious example of that offending and he emphasised the nature of the images and the number of images. He accepted there was no proof that you had made any profit from the pornography or involved yourself in any way in its distribution but he submitted it is very clear that the images depicted are of children. Notwithstanding their identity is not known, they are still victims of your crime. The Crown was not able to demonstrate how long the material had been in your possession.
72 He further reiterated that there were 61 images in total of females between age 8 and 16 and the presumption of harm still applies to those victims notwithstanding that their identity is not known. There were nonetheless exploited in order to obtain those images.
73 Mr Stevens emphasised your high level of co-operation with the authorities and accepted that your confession meant that Charges 1 and 2 could be laid.
74 He agreed with Mr Casey’s submissions in respect to the relevance of the guilty plea, its timing and the fact it was indicative of remorse.
75 He also referred to the recent ruling made by the Chief Judge of this court, in DPP v Okoka (Cth) [2016] VCC 172; whereby it was held that in Commonwealth cases a utilitarian benefit for a plea of guilty applies; that is, the court is entitled to take into account the savings to the community by reason of the guilty plea.
76 The Commonwealth Director accepts this is the approach of this court unless the Court of Appeal determines otherwise notwithstanding it maintains the Cameron[8] principles apply.
[8]Cameron v R [2002] HCA 6.
77 He highlighted the fact that you were aged 59 and you did not have a prior criminal history but submitted that nonetheless that carries less weight in cases of such a nature that you had been charged with because of the need for the court to emphasise general deterrence. He submitted that a term of imprisonment to be served was the only appropriate sentence. He submitted that he could not comment on the risk of re-offending because neither of the psychologists addressed the issue of child pornography and he submitted because of the limited social networks that you have there was a risk of re-offending.
78 Ultimately, in formulating the appropriate sentence, I have had regard to the many factors that I must take into account when sentencing you pursuant to the factors set out in s.16A(1) and (2) Crimes Act 1914 (Cth) and s.5 of the Sentencing Act 1991 (Vic).
79 I have come to the conclusion that a term of imprisonment to be served is the most appropriate disposition having regard to the gravity of the offending and I consider a non-custodial order such as that proposed, a Community Correction Order is not appropriate punishment.
80 In determining the sentence to be passed in respect to the Commonwealth charges I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offending.[9] In respect to the State charges I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[10]
[9] 16A(1) Crimes Act 1914 (Cth).
[10] S5(3) Sentencing Act 1991 (Vic).
81 I have considered that there is an overlap between Charges 1 and 2 and the production of the images that were the subject of Charge 3 and it does exhibit a course of conduct. I will proceed to sentence in a way without any cumulation but nonetheless I have had regard to the principles of totality. In relation to the final charge, Charge 4, I consider that that does represent different criminal behaviour and some cumulation is warranted.
82 Mr Merrill, in sentencing you, I must impose just punishment and on behalf of the community formally denounce your behaviour. General deterrence is of real importance in cases of this nature. People must be deterred from going overseas and having sex with underaged children, and also people must be deterred from possessing child pornography.
83 Having regard to your post-offence conduct, I consider that the need for specific deterrence is not as great for you now given that you do understand what you did was wrong and you have indicated your willingness to undertake Sex Offenders Treatment Program. It is my recommendation to enhance your rehabilitation prospects and to provide for the protection of the community in the future, that the correctional authorities arrange for you to participate in such a program as has been recommended by both Mr Healey and Mr Daffern.
84 Could you please stand, Mr Merrill.
85 The formal court orders will be as follows:
Charge 1, you are convicted and sentenced to five years' imprisonment from today’s date.
Charge 2, you are convicted and sentenced to three years' imprisonment from today’s date.
Charge 3, you are convicted and sentenced to six months' imprisonment from today’s date.
They are the three Commonwealth charges, and in respect to the Commonwealth charges, I fix a minimum term of three years before you are eligible for parole.
In respect to the state charge, Charge 4, you are convicted and sentenced to six months' imprisonment to commence three months prior to the expiration of the term imposed on Charge 1.
That makes a total effective sentence of five years and three months.
86 In respect to a s.6AAA declaration, but for your plea of guilty I would have imposed a sentence of seven years’ imprisonment to serve five years' imprisonment.
87 What's the pre-sentence detention?
88 MR STEVENS: My recollection is - my assessment or calculation is 56 days, Your Honour, that's from 23 June, the last hearing, not including today.
89 HER HONOUR: All right. Pursuant to s.18 of the Sentencing Act 1991 (Vic), applied by virtue of s.16E(2) of the Crimes Act 1914 (Cth), I declare that you have served pre-sentence detention of 56 days which is to be administratively deducted from such sentence.
90 Finally, an order will be made for your registration pursuant to the Sex Offenders Registration Act2004 (Vic) as Charges 1 and 2 are Class 1 offences and Charges 3 and 4 are Class 2 offences. Where a person is found guilty of two Class 1 offences, the relevant reporting period is life.[11]
[11] Section 34(1)(c)(i) of the Sex Offenders Registration Act 2004 (Vic).
91 My associate will approach you shortly with the relevant notification provisions pursuant to the legislation for you to acknowledge and I ask, Mr Casey, that you accompany my associate so that Mr Merrill can just sign that acknowledgement. All right.
92 MR CASEY: The minimum sentence, is that three years, Your Honour?
93 HER HONOUR: Yes.
94 MR STEVENS: Your Honour, may I just ask one question in relation to that?
95 HER HONOUR: Yes.
96 MR STEVENS: I just missed as Your Honour was going through how Charge 4 will impact on the first three charges.
97 HER HONOUR: It is a six-month term and I have only cumulated three months.
98 MR STEVENS: Yes.
99 HER HONOUR: It is to commence three months prior to the expiration of the term imposed on Charge 1, so five years, so three months prior to the expiration of Charge 1 sentence of five years, that begins.
100 MR STEVENS: Yes.
101 HER HONOUR: He only does another three months in respect to that charge.
102 MR STEVENS: In terms of the head sentence?
103 HER HONOUR: Yes.
104 MR STEVENS: Yes.
105 HER HONOUR: And I don't have to declare a non-parole period because it's six months only.
106 MR STEVENS: Yes. The only thing that's triggering in my mind and I don't necessarily think it's a problem is that he'd be released on parole before the state sentence starts.
107 HER HONOUR: How do I effect a cumulation?
108 MR STEVENS: I don't know if there's any other way and I don't know if that is incorrect. But I mean generally speaking this can occur where the state sentence commences first and the Commonwealth sentence starts in three months' time but that would not give effect to Your Honour's minimum term.
109 HER HONOUR: No.
110 MR STEVENS: So at this stage I couldn't say that it's incorrect.
111 HER HONOUR: All right.
112 MR STEVENS: So perhaps if it is, I'd indicate to Your Honour - - -
113 HER HONOUR: Well, I've got powers under legislation to give effect to my order in the event that there's a better way of expressing it, if you could communicate to both myself and Mr Casey, that would be appreciated and I can change the record.
114 MR STEVENS: I would give you that undertaking, Your Honour.
115 HER HONOUR: Finally, because of the particular circumstances of Mr Merrill and his recent difficulties in prison, and I have taken that all onboard, I will ask that the authorities scrutinise him very carefully now that sentence has been imposed and to ensure that he is placed on suicide watch.
116 MR STEVENS: Certainly, Your Honour. If I could just raise one further issue.
117 HER HONOUR: Yes.
118 MR STEVENS: I understand that in relation to the state charge where the relevant forfeiture is the spindles of discs.
119 HER HONOUR: Yes.
120 MR STEVENS: I understand that will be agreed to by consent.
121 HER HONOUR: Right.
122 MR STEVENS: Which I'm grateful for, my learned friend and Mr Merrill agreeing to that.
123 HER HONOUR: Right.
124 MR STEVENS: In relation to the Commonwealth charges, there are a number of items which are also sought although whilst - I don't see it as a major issue, there isn't actually informal consent given to those items and my understanding for the reason for that is that Mr Merrill has some items upon his computers and devices that require - that he would like to have returned to him which are legitimate material.
125 HER HONOUR: Yes.
126 MR STEVENS: I suppose in terms of an order - ventilating this issue before the court - - -
127 HER HONOUR: Do you want to just have me make a note that the Crown has foreshadowed a forfeiture order will be sought but the details are yet to be finalised?
128 MR STEVENS: Well, if that's the preferable course, Your Honour, we may be able to come to terms where it can be done informally at some point.
129 HER HONOUR: Yes, yes.
130 MR STEVENS: The alternative would be to make the order now on the undertaking that we will do that but perhaps Your Honour's suggestion is - - -
131 HER HONOUR: I've done it this way in the past.
132 MR STEVENS: Certainly, Your Honour, and I have no issues with that.
133 HER HONOUR: Because I understand he probably has personal information that he wants to retain which is not unusual these days, most people keep their photographs and other personal information on their computers.
134 MR STEVENS: Absolutely, Your Honour, and the Crown and the informant will facilitate that.
135 HER HONOUR: All right then. I'll just make that note on the order that the Commonwealth has foreshadowed a forfeiture order in respect to the items seized but the details of that are yet to be determined and it's anticipated will be done by agreement.
136 MR STEVENS: Thank you.
137 HER HONOUR: All right, good. If you could go down and just ask - with Mr Casey, just ask Mr Merrill to sign the document.
138 That concludes that matter. Thank you gentlemen both for your assistance, I understand it's been a difficult case. Mr Casey, I appreciate the care that you've taken with Mr Merrill.
139 MR CASEY: Thank you, Your Honour.
140 HER HONOUR: And hopefully the authorities will make sure he's cared for tonight. He's obviously going to be struggling in the short term and it's really important that - perhaps even a request be made that a doctor sees him when he's returned to custody.
141 MR CASEY: I can only endorse that, Your Honour. I think now is a very critical time.
142 HER HONOUR: Yes, I understand that and I do ask that that be done and will make a notation to that effect in the custody order.
143 MR CASEY: Thank you, Your Honour.
144 HER HONOUR: All right, thank you.
145 MR STEVENS: May it please the court.
ADDENDUM
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Following delivery of the sentence the Commonwealth Prosecution confirmed the correct order of the sentence to reflect the judge’s intentions. The record of the court reads:
Charge/s 1
Convicted and sentenced to 5 year/s imprisonment.
Charge/s 2
Convicted and sentenced to 3 year/s imprisonment.
Charge/s 3
Convicted and sentenced to 6 month/s imprisonment.
Direct that the prisoner is to serve a minimum of 2 year/s 9 month/s before being eligible for parole.
The Non-Parole period for Federal Sentences is to commence on 18/11/2016.
Further declare the period that the prisoner has already been in custody, namely 56 day/s, be reckoned as a period of imprisonment already served under this sentence, which will be deducted administratively.
Charge/s 4
Convicted and sentenced to 6 month/s imprisonment.
Total Effective Sentence (Federal and State) is 5 year/s and 3 month/s imprisonment.
The Sentence imposed on Charge 4 is to commence today. The sentence imnposed on Charges 1, 2 and 3 are to commence 3 month/s after the Sentence imposed on Charge 1.
Pursuant to s.34 Sex Offenders Registration Act 2004, the length of the reporting period is Life.
The Crown foreshadows a forfeiture order being sought in respect of the items seized.
Custody Management Issues:
Medical Assessment and Attention Required – immediately.
Suicide Risk.
Sentence Discount:
Pursuant to s.6AAA of the Sentencing Act 1991, the Court would have imposed a sentence of of 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment, but for the guilty plea.
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9
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