Legal Research
Cases
DPP v Meharry

DPP v Meharry

Case [2017] VSCA 387 21 December 2017

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0068

DIRECTOR OF PUBLIC PROSECUTIONS
and
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellants
v
FABIAN ROY MEHARRY	Respondent

---

JUDGES:	MAXWELL P, PRIEST and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2017
DATE OF JUDGMENT:	21 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 387 1^st revision: 17 January 2018
JUDGMENT APPEALED FROM:	DPP v Meharry [2017] VCC 298 (Judge Gaynor)

---

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Commonwealth and State offences – Appeals by Commonwealth and State Directors – Multiple child sex offences – Online grooming, online sexual activity, producing child pornography – Contact sexual offences – Sexual penetration of a child under 16, persistent sexual abuse – 22 female victims aged between 11 and 17 – Offending extended over almost nine years – Sentenced to 12 years’ imprisonment, with non-parole period of 10 years – Whether manifestly inadequate – Use of threats and coercion – Procuring victims to engage in degrading acts – Profound long-term harm to victims – General deterrence – Prevalence of this type of offending – Specific deterrence – Respondent had relevant prior convictions – Offended while on suspended sentence – Offended while under police investigation – Appeals allowed – Resentenced to 22 years’ imprisonment, with non-parole period of 18 years – Criminal Code Act 1995 (Cth) ss 474.27, 474.25A, Crimes Act 1958 ss 38A, 45, 47, 47A, 49B, 58, 68, 70, Sentencing Act 1991 s 6E.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	Ms D Piekusis with Mr J Gullaci	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D C Hallowes SC with Mr C T Farrington	Matthew White and Associates

MAXWELL P

KYROU JA:

Summary

These appeals, by the Commonwealth and State Directors of Public Prosecutions, concern internet-based sexual offending against children on a scale, and at a level of depravity, rarely seen in the courts. Over a period of almost nine years, the respondent offended against 22 young females, mostly aged between 12 and 15. In almost every case, after ‘grooming’ the victim, the respondent prevailed on her — often by means of threats — to perform sexual acts for his gratification. In many cases, he created his own child pornography, by recording what occurred. In several of the cases, what had begun as online offending turned into contact offending.

The internet offences are governed by Commonwealth law, because of the Commonwealth Parliament’s legislative power with respect to telecommunications.[1] (The offences are defined by reference to the use of a ‘carriage service’, meaning a service by which telecommunications are carried.)[2] The sexual contact, child pornography and other offences are governed by State law. As this Court has commented previously, the task of sentencing on a Commonwealth-State indictment of this kind is peculiarly difficult.[3]
[1]Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 (Cth).
[2]Telecommunications Act 1997 (Cth) s 7.
[3]See DPP v Swingler [2017] VSCA 305.

In…

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 v Meharry

Details

AGLC: DPP v Meharry [2017] VSCA 387
Case: [2017] VSCA 387
Decision Date: 21 December 2017

CaseChat Overview and Summary

The appellant was convicted and sentenced to a term of imprisonment for a number of offences against multiple child victims. The Director of Public Prosecutions (DPP) for the Commonwealth and the Director of Public Prosecutions for Victoria appealed against the sentence on the basis that it was manifestly inadequate. The appellant was sentenced to 12 years’ imprisonment, with a non-parole period of 10 years, for a series of child sex offences which included online grooming, sexual activity over the internet, producing child pornography, and contact sexual offences. The offending spanned almost nine years and involved 22 female victims aged between 11 and 17. The appellant used threats and coercion to procure his victims to engage in degrading sexual acts, and caused them profound long-term harm.

The court was required to consider whether the sentence was manifestly inadequate. The court noted the use of threats and coercion, the number of victims and the length of time over which the offending occurred. The court also considered the need for general and specific deterrence, given the prevalence of this type of offending and the appellant’s prior convictions. The appellant had offended while on a suspended sentence, and while under police investigation.

The court accepted the appeals and resentenced the appellant to 22 years’ imprisonment, with a non-parole period of 18 years. The court found that the original sentence did not adequately reflect the seriousness of the offending, and failed to provide sufficient general and specific deterrence. The court also found that the original sentence did not adequately reflect the profound harm caused to the victims.

Orders