Director of Public Prosecutions v Merton (a pseudonym)
[2021] VCC 1324
•14 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON MERTON (a pseudonym) |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 September 2021 | |
DATE OF SENTENCE: | 14 September 2021 | |
CASE MAY BE CITED AS: | DPP v Merton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1324 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Causing Injury Intentionally – Causing Injury Recklessly – Using a Carriage Service to Harass – Dangerous or Negligent Driving While Pursued by Police – Possess Drug of Dependence – Persistent Contravention of a Family Violence Intervention Order – Damaging Property – Conduct Endangering Persons – Aggravated Offence of Recklessly Endangering Persons – Aggravated Offence of Recklessly Exposing an Emergency Worker to Risk by Driving – Burglary
Legislation Cited: Crimes Act 1958; Family Violence Protection Act 2008; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991; Criminal Code 1995 (Cth)
Cases Cited:R v Verdins & Ors (2007) 16 VR 240; Bugmy v The Queen (2013) 249 CLR 571;
Sentence: four years and four month’s imprisonment – eligible for parole after three years and three months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Sprague | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr D. Gibson | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Shannon Merton[1] you have pleaded guilty to an indictment containing 12 charges being:
[1]A Pseudonym
(a) Charge 1, causing injury intentionally contrary to s 18 the Crimes Act 1958, the maximum for which is 10 years' imprisonment or 1200 penalty units;
(b) Charge 2, causing injury recklessly contrary to s 18 Crimes Act 1958, the maximum penalty for which is 5 years' imprisonment or 600 penalty units;
(c) Charge 3, using a carriage service to harass contrary to s 474.17(1) of the Criminal Code 1995 (Cth), the maximum penalty for which is 3 years' imprisonment or 180 penalty units;
(d) Charges 4 and 5 both of dangerous or negligent driving while being pursued by police contrary to s 319AA(1) of the Crimes Act1958, the maximum penalty of which 3 years' imprisonment or 360 penalty units;
(e) Charge 6, possession of a drug of dependence being methylamphetamine not committed for the purpose of trafficking contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty of which is 1 year imprisonment or 30 penalty units;
(f) Charge 7, persistent contravention of a family violence intervention order contrary to s 125A of the Family Violence Protection Act 2008, the maximum penalty for which is 5 years' imprisonment or 600 penalty units or both;
(g) Charges 8 and 11 both of damaging property contrary to s 197(1) of the Crimes Act1958, the maximum penalty for which is 10 years' imprisonment or 1200 penalty units;
(h) Charge 9, recklessly engage in conduct endangering persons contrary s 23 of the Crimes Act 1958, the maximum penalty for which is 5 years' imprisonment or 600 penalty units;
(i) Charge 10, Aggravated Offence of Recklessly exposing an Emergency Worker to Risk by driving, contrary to s 317AF(1)(b) of the Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment or 1200 penalty units. I just note that this offence is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991 whereby the Court must impose a sentence of imprisonment other than imprisonment combined with a CCO, unless an exception applies and I note that your counsel did not suggest that any penalty but for imprisonment was appropriate and therefore it is not necessary for me to consider the application of this section in this case;
(j) Charge 12, Burglary contrary to s 76 of the Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment or 1200 penalty units.
2You have also agreed to this court hearing and have pleaded guilty to 14 related summary charges being:
(a) Summary Charges 16 and 48, a total two charges of unlawful assault contrary to s 23 of the Summary Offences Act 1966, the maximum penalty for that offence is 3 months' imprisonment or 15 penalty units;
(b) Summary Charges 19, 21, 25, 31, 32, 41, 61, and 69 are all eight separate charges of driving whilst disqualified contrary to s 30 of the Road Safety Act 1986 and the maximum penalty applicable there is 2 years' imprisonment or 240 penalty units per offence;
(c) Summary Charge 30 is a contravention of a family violence intervention order contrary to s 123 of the Family Violence Protection Act 1986, the maximum penalty for that offence is 2 years' imprisonment or 240 penalty units;
(d) Summary Charges 60 and 62 are both charges of dangerous driving pursuant to s 64(1) of the Road Safety Act 1986, the maximum penalty for that offence is 2 years' imprisonment or 240 penalty units; and
(e) Summary Charge 64, which is a charge of having a prescribed illicit drug present in sample of oral fluid within 3 hours of driving pursuant to s 49(1)(h) of the Road Safety Act 1986, the maximum penalty for which is 12 penalty units.
Summary of Offending
3The Summary of Prosecution Opening was tendered[2] and read aloud in court. The Prosecution also tendered a bundle of exhibits extracted from Depositions[3] and a collection of messages dated from 6 to 12 November 2020 from you to the victim.[4] Your offending is summarised in short as follows, and I do not intend to state everything that is in the prosecution opening:
[2]Prosecution Exhibit 1.
[3]Prosecution Exhibit 2.
[4]Prosecution Exhibit 3.
4You and the first victim commenced an intimate relationship on about 4 July 2020. On 25 July 2020, you were at home with the victim while the children were asleep. You asked the victim whether she was looking at and wanting another man. The victim replied “Yeah, I did look at him”. You then punched the victim to her left eye with a clenched fist.
5You then put your hand on the victim’s eye and dug your fingers in, while continuing to ask the victim whether she wanted to be with this other man. The victim eventually answered yes, so you punched her to the top of her head. The victim ended up on the floor. You then began stomping all over the victim’s body whilst wearing shoes. The victim put her arms above her head to protect herself.
6The victim got back on the bed before you punched her to both sides of her ribs. The victim repeated, “Please stop, please stop” and thought she was going to die. As a result of the incident, the victim sustained a lump over her left eyebrow, a cut on the bridge of her nose, lumps on her head, bruises to the right side of her ribs and cuts on the inside of the right side of her mouth (Charge 1, causing injury intentionally).
7On 28 July 2020, the victim picked you up from a parole meeting before driving to a friend’s house to drop you off. You told the victim you would kill yourself if she did not return to pick you up. You subsequently went home with the victim.
8The victim told you she did not feel safe with you and did not want to go into the bedroom with you. You took the victim’s mobile phone and as the victim went toward her car you said, “If you run, I’ll catch you this time”. The victim ran inside screaming before shutting the front door. At this point, the children came out of their rooms. You pushed against the front door trying to enter the house, while the victim was trying to lock the door (Summary Charge 16, unlawful assault).
9The victim called her sister-in-law who called the police. Police officers attended the victim’s house but the victim declined to make a statement. The victim subsequently had the locks on her house changed.
10On 2 August 2020, you started staying at the Burvale Hotel in Albury with the victim and her children. On 17 August 2020, the victim contacted her sister to arrange an excuse to leave the hotel. Her sister dropped the victim at a friend’s house and returned to the hotel to collect hers and her children’s belongings. The victim then went to her sister’s house and then drove back to Wodonga, sleeping in her car overnight with her children.
11On 21 August 2020, the victim again spoke to police, who said they would apply for an intervention order on her behalf. An interim Family Violence Intervention order was issues at the Wodonga Magistrates’ Court with the offender as the Respondent, listing the victim and her three children as affected family members. The conditions were full exclusion conditions and those conditions were explained to you.
12You continued to send text messages to the victim, and you met with the victim on several occasions. On one occasion on 30 August 2020, you drove with the children on your lap in a red Nissan Navara (Summary Charge 19, drive whilst disqualified).
13You had been in a relationship with another victim in this matter for approximately one year until March 2017. On 31 March 2020, a final Family Violence Intervention Order was served on and explained to you at the Wangaratta Magistrates' Court, with an expiry date of 31 March 2021. You were the Respondent, and the second victim was the protected person. The conditions included a prohibition on you approaching within 200 metres of the victim’s residence.
14On 5 September 2020, you drove to the second victim’s residence and pulled up in the driveway. The victim was in the driveway getting out of her friend’s car. You yelled at the victim to come here. The victim did not respond, and got back into her friend’s car to get away from you (Summary Charge 30, contravention of family violence intervention order and Summary Charge 31, drive whilst disqualified).
15On 10 September you arranged to meet the first victim at Federation Park Store in Wodonga. You drove a red Nissan Navara to that location (Summary Charge 21, drive whilst disqualified).
16
You got into the victim’s vehicle and went to a motel. The victim booked a
two-bedroom room and paid in cash given to her by you. After having dinner in the motel room, you indicated you wanted to talk in the bedroom, but the victim wanted to continue watching television. You got annoyed at the victim and walked over to the victim’s bag taking $300 in cash out, saying this would cover the cost of the motel.
17As the victim walked back to the couch, you punched the victim to the side of her face, near her mouth, and then pushed her over (Charge 2, causing injury recklessly). The victim sustained bruising to her left knee and swelling and cuts to her mouth. The children started crying and the victim gathered her possessions before moving the children toward the car. You told the victim you would take the car because the police were going to be called. The victim let you do this and you drove away (Summary Charge 25, drive whilst disqualified). A friend of the victim returned the car the next day. Her house key was not returned with her car keys.
18On 10 and 28 September 2020, you sent the victim hundreds of text message from your mobile phone and the Facebook messenger application, and tried to call her through those means and the Google Duo applications. The messages included apologies, saying you loved the victim, threatening self-harm and other abusive messages (Charge 3, use carriage service to harass).
19On 12 September 2020, police conducting patrol duties in Wodonga observed you driving a blue Ford Falcon sedan at a faster than appropriate speed. Police attempted to intercept you however they ceased due to your erratic driving. Your driving manoeuvres included travelling in the wrong direction through a car park and travelling down the wrong side of the road toward oncoming traffic (Charge 4, dangerous or negligent driving while pursued by police and Summary Charge 32, drive whilst disqualified).
20On 25 September 2020, police were conducting patrol duties in Wodonga and observed you driving a blue Ford Falcon sedan. Police activated their flashing lights and indicated for you to pull over. You accelerated rapidly and illegally overtook a car in front of you, before driving through a roundabout. You continued on the wrong side of the road causing at least five cars to take evasive action to avoid a collision. There was a large volume of traffic on the road at that time. The speed limit was 60 km per hour and you were travelling at up to 120 km per hour. You evaded police before parking the car outside of a nearby house. You then ran away (Charge 5, dangerous or negligent driving while pursued by police and Summary Charge 41, drive whilst disqualified).
21On 28 September 2020, a search warrant was executed on your address. You initially attempted to evade police but were apprehended and arrested. Police located a small zip lock bag containing a crystal substance in your shorts (Charge 6, possession of a drug of dependence). You were also arrested on a New South Wales warrant as a result of your parole being revoked.
22You were transported to the Wodonga police station and interviewed. You made total admissions to the conduct as it relates to the first victim and said you were on drugs at the time and snapped. You made partial admissions to the conduct that relates to the second victim, but denied the incidents involving pursuit by police on 12 and 25 September.
23On 29 September 2020, you were extradited to New South Wales in relation to a revocation of your parole. On 6 November 2020, you were again released on parole and were to reside at your sister’s house in West Albury. You continued to have contact with the first victim throughout this period.
24On 9 November 2020, you were with the first victim and became agitated after going through messages on her phone. The victim locked you out before letting you back in. The victim then left her house and called her friend and asked her friend to meet her. The victim’s friend went to the victim’s house however you were no longer there. You had left a note addressed to the victim apologising.
25The victim then went to her friend’s house and you were there. You said you wanted to talk but the victim became agitated. You grabbed the victim around the neck as she was saying, “Stop” (Summary Charge 48, unlawful assault).
26The victim’s friend came outside and stood between you and the victim. The victim and her friend then went back inside leaving you outside. You threw a large rock at the victim’s car smashing her front passenger seat window before throwing another large rock at the rear passenger seat door (Charge 8, damage property).
27After the victim’s friend cleaned the glass off the car seat, the victim returned home. You called and messaged the victim multiple times throughout the night and into the next morning saying that you needed paperwork for your parole meeting that day. The victim left the papers outside her front door, before leaving her house, knowing that you would soon arrive. However, as the victim was about to leave, you arrived with a female passenger in a white Holden Commodore. The victim drove around your vehicle and down the street. You followed closely behind the victim’s car in your car and also tried to cut the victim off but were unsuccessful.
28The victim swerved in and out of cars to escape you however you maintained your pursuit. The victim drove up on the median strip and along the wrong side of the road and through a red signal. You followed the victim in your vehicle a few cars behind. The victim called 000 for police assistance. The victim eventually arrived at the police station, drove onto the footpath and began beeping her horn to get the attention of police. She then got out of her car and entered the police station. The victim made a further statement to police (Charge 9, recklessly engage in conduct endangering persons and Summary Charge 69, drive whilst disqualified).
29Later that afternoon, Senior Constable Menz and Senior Constable Rampal were performing duties in a marked police van. They were transporting a passenger in the rear holding pod of the vehicle. They observed your vehicle reversing out of a driveway. You looked in your rear-view mirror and then turned your head to look at the police vehicle. You reversed into the police vehicle and collided the rear left bumper of the commodore into the front left bull bar of the police vehicle.
30You drove back up the driveway a few meters, whereby a female passenger got out of your vehicle. You then reversed your car again into the bull bar of the police vehicle. You went forward again slightly and then reversed again into the police vehicle as you managed to push past it (Charge 10, Aggravated offence of recklessly exposing an emergency worker to risk by driving).
31
On 29 September 2020, a final Family Violence Intervention Order was issued at the Wodonga Magistrates’ Court with you as the respondent and listing the first victim and her three children as affected family members. Between
6 and 12 November you frequently called and texted the victim, in contravention of that order (Charge 7, persistent contravention of a family violence intervention order).
32On 11 November, you attended the first victim’s address who was not home at the time. You forced entry through the front door and broke the deadlock. You went through the victim’s belongings and took a bottle of Jim Beam bourbon and a mobile phone (Charge 11, damaging property and Charge 12, burglary).
33On 12 November 2020, you were observed driving around Wodonga in a grey Holden Cruze sedan. Two officers were driving in an unmarked police vehicle. They located you and attempted to intercept you as you were exiting a driveway. You accelerated but the police vehicle performed a defensive manoeuvre and collided with you on the driver’s side door. You continued to accelerate but the police vehicle attempted to push you toward the median strip to stop you in order to perform an arrest. You however got your car free and drove off (Summary Charge 61, drive while disqualified).
34You then continued to drive in a reckless and dangerous manner through residential and main roads of Wodonga, including driving at fast speeds, and weaving between other traffic including overtaking vehicles on the wrong side of the road and overtaking using the road shoulder (Summary Charge 60, dangerous driving).
35You then travelled south towards Barnawartha North along sealed and unsealed roads with another passenger, who got out of the vehicle at a later point. As you approached the intersection of Cookinburra Road and Indigo Valley Road, police vehicles were in place and stop strips had to be deployed. You stopped and reversed, attempted to drive away, then turned around again and drove towards a marked police vehicle coming the other direction. You attempted to evade police by driving into a paddock however you drove into a fence and the car was immobilised. You were then arrested (Summary Charge 62, dangerous driving).
36An oral fluid test was conducted and indicated the presence of methamphetamine (Summary Charge 64, prescribed illicit drug present in sample of oral fluid within 3 hours of driving).
Impact on Victim
37The Victim Impact Statement of Loretta Rosa (a pseudonym) dated 5 July 2021[5] was read aloud in court. In that statement Ms Rosa detailed the profound effect that your offending has had on her and her children. She describes the emotional abuse you put her through as “absolute torture”. Whilst it is impossible in the course of the sentencing remarks to do her statement justice, it is clear that your actions have had an effect on her far beyond the physical impact of your assaults. The damage you have done to Ms Rosa emotionally and psychologically is ongoing.
[5]Prosecution Exhibit 6
38The Victim Impact Statement of Ms Hayley Maddison (a pseudonym) dated 12 July 2021 including undated addendum[6] was also tendered at the plea. Ms Maddison was also the subject of other offending that was not the subject of any matters before this court. As such, some portions of the statement are not directly relevant to the current sentencing task. However, with that important qualification I take the statement into account as providing some broader context informing the effect of the offence for which Ms Maddison was the victim.
[6]Prosecution Exhibit 5
39The statements were eloquent and showed significant emotional maturity. The impact of a crime upon the victim is a matter to be taken into account pursuant to s 5 Sentencing Act 1991, however I am cautious not to allow the impact on the victims to swamp the sentencing process.
40Police officers Senior Constable Micahel Rampal and Senior Constable Alex Menz were also victims of the ramming incident on 9 November 2020 but did not provide victim impact statements.
Nature and Gravity of Offending
41When viewed as a collective, the 26 charges before the court represent a serious and sustained period of offending.
42The offences were commenced whilst you were on parole for a sentence imposed for somewhat similar matters in New South Wales.
43You were also subject to a Community Corrections Order throughout the period of offending.
44The offences were committed in breach of intervention orders. The offences were committed in the context of family violence. I do not intend in the sentencing remarks to comment specifically about each and every one of the 26 charges for which you are to be sentenced. Certain of those offences, however, require some further individual analysis.
45Charge 1, intentionally causing injury, is a very serious example of this offence. The offence was committed only three weeks after you had commenced a relationship with the victim. The violence perpetrated on the victim on this occasion was triggered by your paranoia and insecurity about your perception that she was looking at one of your male friends. The assault was to punish her for that act.
46The physical injuries inflicted by the assault were significant. The photos taken of the victim some days later reveal that substantial force was applied to her body including her head and face. It was fortunate indeed that the injuries were not substantially more serious. The psychological damage inflicted on the victim by the distress and fear you caused will be much longer lasting.
47The circumstances in which those injuries were inflicted add substantially to the gravity of the offence. The attack commenced with a hard punch to her left eye. It progressed to your fingers being dug into her eye. A further punch to her head left her on the floor at the end of the bed, in an effort to escape you. You did not let her leave at that time. Instead, you stomped on her all over her body, whilst she tried to protect her head with her arms. You punched her to the ribs. For very understandable reasons, you placed her in such fear that the victim thought she was going to die and when I say understandable reasons, it is understandable that she thought she was going to die.
48The attack was interspersed with questions and demands made by you. The attack was an elongated assault by a strong man on a woman he purported to be in a loving relationship with. It was committed whilst her three young children were in the house. The assault involved multiple separate blows to her head and body, by punching and stomping. This is in my view, a very serious example of the crime of intentionally causing injury.
49Charge 2 also involved you inflicting injury to the face of the victim. On this occasion, the injury was inflicted by a single punch. This may make it an objectively lesser offence than Charge 1, but given the context of the previous incident it was a serious further perpetuation of family violence against the victim.
50Charge 10 is the aggravated offence of recklessly exposing an emergency worker to risk by driving. That this offence is regarded as inherently serious by Parliament is evident from the fact that statute dictates that a term of imprisonment must be imposed save for certain specified exceptions.
51Your offending involved you reversing into a police vehicle on three occasions whilst knowing police were intending to apprehend you. In this instance, the offence deals with the risk to which the two police members in the vehicle were exposed. As a result of your choice to reverse the vehicle your car collided with the bull bar of the police vehicle with sufficient force to move the police vehicle forward. It is not suggested that you drove at any substantial speed into the police vehicle. The fact of the police members being inside the vehicle, save for the passenger in the rear holding pod, also somewhat diminished the risk to which they are exposed. Whilst this is an inherently serious offence, I regard this as a low to mid-range example of it.
52Charge 12 relates to the burglary of the victim’s premises. Your decision to enter those premises with an intention to steal appears on its face to be opportunistic in nature. You were required to force entry and caused damage to the door and that is a subject of Charge 11, damaging property. I regard this overall as a relatively modest example of the offence of burglary.
53The other offences not already mentioned reveal that over the three and a half month period that the offending occurred, you have shown a consistent lack of regard for court orders in the form of intervention orders designed to keep you away from women under threat, a lack of regard for your status as a disqualified driver, and a lack of regard for the potential consequences of driving dangerously. The conduct covered by Charge 3, using a carriage service to harass, shows you to be obsessive, relentless and manipulative by the bombardment of the victim with well over 600 messages.
54I must also make particular note of the offending the subject of Charge 30, the contravention of the family violence intervention order where the victim was your former partner, Hayley Maddison. The breach in and of itself was not grave in nature. It involved your attendance at her premises in breach of the condition of a final family violence intervention order made five months earlier that required you to remain at least 200 meters away from that place. The breach did not involve any physical contact nor any explicitly threatening conduct towards her.
55The background, however, makes this offending more serious. Your relationship with Ms Maddison ended more than three years before. You had only recently been released on parole in New South Wales for offences committed against Ms Maddison. You showed, by this offending, an inability to obey the simple directive conveyed in that intervention order and leave Ms Maddison in peace, despite the substantial trauma you have caused to her in the past.
Personal Circumstances
56You were aged 37 at the time of the offending and are 38 at sentence. You are an Indigenous man and the equal youngest in your family with your twin sister in a sibship of 10 children. You were born in Griffith and raised in Albury and Newcastle.
57You have an 18-year-old daughter from whom you are estranged. You separated from her mother when your daughter was a baby. You report seven to eight long term relationships.
58You experienced an unstable and disadvantaged childhood including witnessing numerous occasions of domestic violence between your parents at a young age. You report that you saw your mother stab your father in the childhood family home. You observed your parents abuse alcohol daily and suffered from physical abuse at the hands of your father. For a period in your childhood you lived with your older sister and her partner, a man you idolised, where you observed further acts of violence. You also report to be the victim of sexual abuse in childhood.
59You are fortunate to have the support of your older sister, Ms Merton, as outlined in her character reference tendered to the court.[7]
[7]Defence Exhibit 4.
60Your father passed away last year and you were unable to attend his funeral as you were in custody.
61You completed your education to Year 9, however your schooling was unstable and you attended approximately three or four different schools, struggling with behavioural issues and learning difficulties.
62
You report previous employment was in a de-boning factory for one month in your
mid-twenties however have not worked prior to or since this time. You have been engaged as a billet whilst on remand.
63Your alcohol and substance abuse began in childhood, consuming alcohol from age 13 and using cannabis use from age 14. You describe yourself as an alcoholic from ages 18 through to 22. You have struggled with addiction in your adult life, commencing regular methylamphetamine use from the age of 29. It appears that you have an entrenched lifestyle of illicit poly-substance abuse, most significantly use of methylamphetamine.
64In 2005, you were admitted to hospital after a suspected overdose on prescription drugs and consumption of alcohol. You suffered extensive facial and head trauma following an alleged assault in 2014 which required hospitalisation in the Intensive Care Unit. You also required treatment from the Emergency Department for a “deep penetrating knife wound” in 2015.
65You have admitted a very concerning and substantial prior criminal history from a young age including extensive interstate priors and similar offending.
Mental Health and Applications of Verdins[8] principles
[8]R vVerdins & Ors (2007) 16 VR 240 (‘Verdins’).
66A psychological Report of Simon Candlish dated 23 August 2021[9] and neuropsychological Report of Dr Loretta Evans dated 14 May 2021[10] were tendered on your plea.
[9]Defence Exhibit 2.
[10]Defence Exhibit 3.
67The report of Mr Candlish opines that you meet the criteria for a severe personality disorder with borderline pattern revealing prominent features of negative affectivity, disinhibition, and dissociality. He also says that you meet the criteria for persistent depressive disorder and stimulant use disorder.
68Mr Candlish says that you display severe impairment in your personality functioning. He says you have several problematic personality traits including emotional lability, hostility, irresponsibility, impulsivity, risk-taking, and antagonistic behaviours.
69He says that you have a disturbance of self which is described as severe. You have severe interpersonal functioning with emotional dysregulation, frequent conflict and externalising behaviours, chronic problems with seeking support, and problems performing expected social and occupational roles.
70Mr Candlish says that your severe personality impairment was present at the time of your offending. He says that the nature of your impairment is “enduring and entrenched”. He says that mental impairment was a substantial and significant operative factor in your offending.
71Based on the material before the court, which was not disputed by the prosecution during the plea hearing, the first, third, and fifth limbs of the principles outlined in Verdins have applicability in this case.
72Your moral culpability for the offending is reduced by reason of the impact of your borderline personality disorder on your capacity to think through and reason. It must be noted however that the extent of reduction in moral culpability is limited somewhat by the fact that drug use has also had an impact upon your behaviour.
73When asked by Dr Loretta Evans how you spent a typical day in the community, you replied “bad on the drugs. Bad on the Ice. I was only out six days and back in on 12th November”.
74You also told Simon Candlish that you were “often affected by methamphetamine or amphetamine when behaving violently towards partners”. As such, you have some awareness of the link between your drug use and your violent conduct.
75There should be some moderation of general deterrence because your mental impairment somewhat reduces your suitability as a vehicle to dissuade others from similar offending.
76Your personality impairment and depressive disorder are also such as to make imprisonment more burdensome for you than for someone without these mental conditions.
History of Disadvantage and Application of Bugmy[11] principles
[11]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
77I also have regard for your history of disadvantage. Consistent with the principles outlined in Bugmy, I take into account that the multiple matters that have contributed to an unstable and disadvantaged childhood have continued resonance throughout your adult life. The trauma you endured as a child has the effect of reducing the moral culpability attaching to your current offending. You endured a childhood of emotional neglect, exposure to violence, physical abuse, and sexual abuse. As a child you came to believe that an adult relationship involved family violence. You had an unstable education, and were drawn to alcohol abuse by age 13 and cannabis use by age 14. All these matters mean that the degree of personal culpability to be attached to your offending must appropriately be moderated.
78Many of the factors that enliven in this case the principles of Bugmy and Verdins must necessarily also impact on other sentencing considerations, most notably the weight to be placed on the need for community protection.
Plea of Guilty and Remorse
79You pleaded guilty to this matter at a committal mention. I regard your plea of guilty as one that has been entered at the earliest reasonable opportunity. Your plea is of substantial utilitarian value. You have saved the time and resources that would otherwise have been expended on contested proceedings. Given the number of charges and the number of separate incidents to which those charges relate, it could have been anticipated that but for your plea there would have been multiple trials required all of significant length.
80That your plea has avoided this eventuality is of especially high worth in circumstances where pandemic restrictions have placed extreme pressure on court lists.
81Also, and importantly, your plea of guilty has spared multiple witnesses, including your two former partners, the inconvenience and undoubted stress that would have been involved in giving evidence at trial.
82I also consider that your plea is consistent with you having remorse for your offending. Even by only considering the material presented by the prosecution, it is apparent that on multiple occasions you displayed self-awareness and indeed even some personal distress about your conduct. You expressed remorse and sought forgiveness, on occasions even in the midst of continuing offending episodes. I accept that that contrition was genuine. It did not however, translate into you refraining from further offending.
83You have also shown some insight into your offending and its impact upon yourself and others. In Dr Loretta Evans report dated 14 May 2021[12] you acknowledge the wrongfulness of your behaviours and concurred that members of the broader community would find your actions to be inappropriate and dangerous. You repeatedly stated that “I hurt a lot of people not just her, her kids, her family, her friends, my family, police officers, and its officers… The psychological damage is damage I’ve done”.
[12]Defence Exhibit 3.
84You go on to report to Dr Evans that “I want to work. I want to be happy. I want to be a better person. I don’t want to be the person I am. I want to be me, kind and gentle, not the bad stuff”.
Prospects of Rehabilitation
85
You are now 38 years old. You have a criminal record that has seen you sentenced to periods of imprisonment on 11 separate occasions since 2002. This offending was committed whilst on parole and in breach of a Community Corrections Order. The offending suggests that you have an limited capacity to appropriately regulate your behaviour, especially when under the influence of drugs. Your offending was over a period of months and did not cease even when you returned to custody. It resumed at an enhanced gravity after you were released for a second time on parole. The expert material reveals that the psychological, psychiatric and environmental drivers of your behaviour are
long-standing and deeply entrenched.
86Mr Candlish assessed you as falling into the ‘high-risk’ category for violence in the nature of either spousal assault or assaults on other males.
87Dr Evans says that “in the absence of psychiatric support, stabilisation of mood state, as well as successful completion of targeted programs (that thoroughly addresses very specific schemas that can curtail aggressive reactions, as well as assist with illicit drug abstinence), I consider Mr Merton is ‘easily triggered’ and on balance, is at high risk of re-offending”.
88In all the circumstances, no other conclusion is available but that your prospects of rehabilitation are poor.
89They are not, however, hopeless. Whilst you are far from a youthful offender you are still a relatively young man. There is a strong community interest in fostering your rehabilitation. The report of Mr Candlish suggests that you have intact intellectual functioning and that there is no barrier to you engaging in psychological intervention, drug treatment and rehabilitation. Mr Candlish remains cautiously optimistic that targeted and appropriate treatment, engaged over the long-term, has the capacity to achieve a positive outcome.
90You have fully engaged with the experts who have prepared material for the purposes of this plea. That suggests you have the capacity to engage with the kind of treatment recommended by Mr Candlish. Whilst any attempt to assess the probability of success of treatment that has not yet commenced would be an exercise in speculation, that does not mean I should reach a contrary and negative conclusion about the prospects of successful treatment. I simply conclude that, absent such engagement, your prospects are bleak, but were you to engage as suggested there is hope of a different future.
Community Protection
91Having regard for the nature of the offending and its circumstances, protection of the community is an important sentencing consideration in this case. That does not mean however, that a sentence will be imposed that is disproportionate to the circumstances of the offending as I find them to be and having regard to the matters in mitigation.
Impact of COVID-19 Pandemic
92You have been remanded in custody since your arrest on 12 November 2020 and have spent your time in custody under pandemic restrictions. It would appear highly likely that these restrictions, including but not limited to restrictions on educational courses, programs and visits, will persist for the foreseeable future. This represents an increased burden of imprisonment.
Sentencing Principles
93The nature of the offending, involving as it does acts of family violence, means that general deterrence is an important sentencing consideration. In your case, I have already concluded that there should be some moderation because of the application of the principles in Bugmy and Verdins. Such moderation, however, only somewhat diminishes the emphasis placed on general deterrence. It is by no means eliminated as a sentencing consideration.
94Your prior history also means that specific deterrence acquires significance in the sentencing process.
95I must impose sentences for each of the individual charges that are appropriate having regard for their particular gravity and the broader sentencing considerations applicable to them. I must also ensure that the sentence is structured in such a manner that the total effective sentence imposed is appropriate considering the entirety of the criminality before the court. This will necessarily involve some moderation of any orders for cumulation to have regard for the principle of totality.
96I am also conscious to have some regard for the fact that you have more than a year of imprisonment owing in New South Wales because of your parole being cancelled. It can reasonably be anticipated that the New South Wales time will be served at the conclusion of your non-parole period for the current matters. Whilst I do not need to engage in any artificial exercise to determine what, if any, concurrency might have been possible had the matters been heard at the same time, it is necessary to be conscious of the broader circumstances and sensibly adjust to accommodate this.
Sentencing Submissions
97Mr Menon, on your behalf, conceded on his very comprehensive and very realistic plea that the appropriate sentence should be a term of imprisonment.[13]
[13]Defence Exhibit 1.
98Mr Sprague, on behalf of the Director, submitted that the Court should impose a sentence of imprisonment involving a head sentence and non-parole period.[14]
[14]Prosecution Exhibit 7.
Sentence
99Shannon Merton, I sentence you as follows:
100On Charge 1, causing injury intentionally, you are convicted and sentenced to 2 years and 6 months' imprisonment.
101On Charge 2, causing injury recklessly, you are convicted and sentenced to 9 months' imprisonment.
102On Charge 3, using a carriage service to harass, you are convicted and sentenced to 6 months' imprisonment. Please be aware, this is a Commonwealth charge. I am conscious that s 17A of the Crimes Act 1914 (Cth) states that a term of imprisonment is not to be imposed unless all other sentencing options have been considered and deemed to be inappropriate.
103On Charge 4, dangerous or negligent driving while pursued by police, you are convicted and sentenced to 6 months' imprisonment.
104On Charge 5, dangerous or negligent driving while pursued by police, you are convicted and sentenced to 6 months' imprisonment.
105On Charge 6, possess drug of dependence, you are convicted and fined $250.
106On Charge 7, persistent contravention of a family violence intervention order, you are convicted and sentenced to 6 months' imprisonment.
107On Charge 8, damaging property, you are convicted and sentenced to 4 months' imprisonment.
108On Charge 9, conduct endangering persons, you are convicted and sentenced to 9 months' imprisonment.
109On Charge 10, aggravated offence of recklessly exposing an emergency worker to risk by driving, you are convicted and sentenced to 18 months' imprisonment.
110On Charge 11, damaging property you are convicted and sentenced to 6 months' imprisonment.
111On Charge 12, burglary, you are convicted and sentenced to 9 months' imprisonment.
112Summary charges:
(a) On Summary Charges 16 and 48, unlawful assault, on each charge you are convicted and sentenced to 1 month's imprisonment.
(b) In relation to Summary Charges 19, 21, 25, 31, 32, 41, 61, and 69, which is a total of eight charges of driving whilst disqualified, on each charge you are convicted and sentenced to 1 month's imprisonment.
(c) Summary Charge 30, which is a contravention of a family violence intervention order, you are convicted and sentenced to 3 months' imprisonment.
(d) Summary Charges 60, dangerous driving, you are convicted and sentenced to 6 months' imprisonment.
(e) Summary Charges 62, dangerous driving, you are convicted and sentenced to 6 months' imprisonment.
(f) Summary Charge 64, having an illicit drug present in sample of oral fluid within 3 hours of driving, you are convicted and fined $500.
113All right. Now, I will go slowly through this so you understand how the sentence is structured and you can both check the maths as we go.
114So Charge 1 is the base sentence, so that is the 2 years and 6 months for intentionally causing injury.
115I order 2 months of the sentence imposed on Charge 2, 1 month of the sentence imposed on Charge 4, 1 month of the sentence imposed on Charge 5, 2 months of the sentence imposed on Charge 7, 3 months of the sentence imposed on Charge 9, 6 months of the sentence imposed on Charge 10, 1 month of the sentence imposed on Charge 11, 3 months of the sentence imposed on Charge 12, 1 month of the sentence imposed on Summary Charge 30, 1 month of the sentence imposed on Summary Charge 60 and 1 month of the sentence imposed on Summary Charge 62 be served cumulatively upon each other and on the sentence imposed on Charge 1.
116This makes for a total effective STATE term of 4 years and 4 months imprisonment. I order you serve 3 years and 3 months being becoming eligible for parole.
117I order the sentence imposed on Charge 3, being a Commonwealth offence, commence today the 14th of September 2021.
118So that even with the Commonwealth charge, that makes for a total effective term of 4 years and 4 months' imprisonment. I order that you serve a period of 3 years and 3 months before becoming eligible for parole.
119Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have served a period of 306 days of presentence detention to be reckoned as already served.
120I order that on Charge 4, 5, 10 on the indictment, and Summary Charges 19, 21, 25, 31, 32, 41, 60, 61, 62, and 64 that any license be cancelled and that you be disqualified from driving for a period of 6 years.
121I find pursuant to s 89C of the Sentencing Act 1991 that Summary Charges 60, 61, 62 and 64 were committed while the offender was under the influence of alcohol or a drug, which contributed to the offence.
122I declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have imposed a sentence of 5 years and 6 months' imprisonment with a non-parole period of 4 years and 3 months.
123The Prosecution made application for the disposal of the methylamphetamine, this was not opposed by counsel on your behalf and I make that order in the terms sought.
124Is there anything else? Mr Sprague?
125MR SPRAGUE: Nothing arising, Your Honour.
126HIS HONOUR: Mr Gibson?
127MR GIBSON: No, Your Honour. I might need to check it against the formal order of the court but I think I have got everything.
128HIS HONOUR: All right. All right. So that being the case, I thank you all for your assistance and I will adjourn the court until 10.30 tomorrow morning.
129COUNSEL: If the court pleases.
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