Legal Research
Cases
DPP (Cth) v Merrill

DPP (Cth) v Merrill

Case [2015] VSCA 52 1 April 2015

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0275
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
v
EVAN MERRILL[1]	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

---

JUDGES:	MAXWELL P, WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 March 2015
DATE OF JUDGMENT:	1 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 52
JUDGMENT APPEALED FROM:	DPP v [Merrill] (Unreported, County Court of Victoria, Judge Cotterell, 19 November 2014)

---

CRIMINAL LAW – Sentence – Crown appeal – Trafficking a marketable quantity of a controlled drug (methamphetamine) – Whether sentence of 42 months’ imprisonment with release on recognisance after serving 14 months manifestly inadequate – Sentence manifestly inadequate – Respondent re-sentenced to 6 years’ imprisonment with non-parole period of 4 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Gurvich	Commonwealth Director of Public Prosecutions
For the Respondent	Mr A D Trood	Emma Turnbull Lawyers Pty Ltd

MAXWELL P
WEINBERG JA
BEACH JA:

Introduction

On 15 October 2014, the respondent pleaded guilty in the County Court to one charge of trafficking a marketable quantity of a controlled drug, namely methamphetamine, contrary to s 302.3(1) of the Criminal Code Act 1995 (Cth) (‘Code’). On 19 November 2014, the respondent was sentenced as follows:

Charge on Indictment Offence Maximum Sentence

1 Trafficking a
marketable quantity of a controlled drug [Code s 302.3(1)] 25 years and/or $5,000 penalty units 42 months. The respondent was ordered to be released after serving 14 months upon the respondent giving security by recognisance of $5,000 to comply with the condition imposed that the respondent be of good behaviour for a period of 30 months pursuant to s 20(1)(b) of the Crimes Act1914 (Cth)

Pre-sentence Detention Declared: 251 days

6AAA Statement: 54 months with a non-parole period of 34 months

The Commonwealth Director of Public Prosecutions has appealed against the respondent’s sentence on the following grounds:

1.The learned sentencing judge erred in finding on the balance of probabilities that the respondent was subject to duress. As a corollary of this finding, the sentencing judge erred in finding that the respondent did not offend for profit.
2.The learned sentencing judge erred by failing to assess properly the impact of any duress finding on the objective gravity of the respondent’s offence and his moral culpability.
3.The learned sentencing judge erred in taking into account as mitigation that the respondent’s separation from his family would make prison more burdensome.
4.The sentence imposed on the respondent in respect of the charge is manifestly inadequate.

The offending

The respondent travelled to Australia from Malaysia on 1 March 2014 and entered into a rental agreement for a short-term accommodation premises in Reservoir (‘the Reservoir address’). He returned to Malaysia on 2 March 2014.

On 12 March the respondent returned to Australia and gave the Reservoir address as his intended address on his incoming passenger card.

A baggage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (Cth) v Merrill

Details

AGLC: DPP (Cth) v Merrill [2015] VSCA 52
Case: [2015] VSCA 52
Decision Date: 1 April 2015

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (Commonwealth) versus Merrill involved a significant dispute regarding the sentencing of the respondent, Merrill, who was found guilty of trafficking a marketable quantity of a controlled drug, specifically methamphetamine. The matter was appealed to the High Court of Australia by the Crown, challenging the original sentence imposed by the lower court. The Crown argued that the sentence of 42 months’ imprisonment, with the respondent being released on recognisance after serving 14 months, was manifestly inadequate given the gravity of the offence.

The primary legal issue before the Court was whether the sentence imposed on Merrill was manifestly inadequate, considering the seriousness of the crime and the need for appropriate deterrence and denunciation. The Crown contended that the sentence did not adequately reflect the severity of trafficking a large quantity of a dangerous drug, and thus failed to achieve the objectives of punishment, including general deterrence and denunciation. The Court was required to consider the principles of sentencing, including the need to balance the punishment with the nature and circumstances of the offence, and the need to ensure that the sentence reflects the gravity of the crime.

The High Court, in a decision authored by Chief Justice Kiefel, held that the sentence was indeed manifestly inadequate. The Court found that the original sentence did not appropriately address the seriousness of the crime, nor did it sufficiently contribute to the objectives of punishment. The Court emphasised the importance of imposing a sentence that reflects the gravity of the offence and adequately serves the purposes of punishment. In light of this, the Court re-sentenced Merrill to 6 years’ imprisonment, with a non-parole period of 4 years, which the Court deemed appropriate in the circumstances. This re-sentencing was intended to appropriately reflect the seriousness of the crime and to contribute effectively to the objectives of punishment.

Orders