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DPP v Merryfull and Bloomfield

DPP v Merryfull and Bloomfield

Case [2023] VSCA 244 13 October 2023

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SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0077
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
LUKE MERRYFULL	Respondent

S EAPCR 2023 0078
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
SHAUN BLOOMFIELD	Respondent

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JUDGES:	EMERTON P, MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 October 2023
DATE OF JUDGMENT:	13 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 244
JUDGMENT APPEALED FROM:	DPP v Bloomfield & Anor [2023] VCC 427 (Judge Brookes)

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CRIMINAL LAW – Sentence – Crown appeal – Rape – Sexual assault – One offender sentenced to 1 year and 7 months’ imprisonment and 2 year community correction order – Other offender sentenced to 1 year and 7 months’ imprisonment and 3 year community correction order – Whether judge erred by mitigating sentence on basis of rehabilitation limb of delay – Whether judge erred in moderating general deterrence – Whether sentence manifestly inadequate – Delay in proceedings significant and unusual – Proceedings subject of successful conviction appeal resulting in retrial – Further delay in retrial – Total delay of 7 years between charge and sentence – 19 months’ imprisonment already served by each offender – No remorse but significant rehabilitative steps taken – No error in sentence demonstrated – Appeal dismissed.

Boulton v The Queen (2014) 46 VR 308; Tones v The Queen [2017] VSCA 118, considered.

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Counsel
Appellant:	Mr B F Kissane KC with Ms S Clancy
For the Respondent Merryfull:	Mr R F Edney with Ms S A Stafford
For the Respondent Bloomfield:	Mr R Nathwani with Ms L Thies
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent Merryfull:	Emma Turnbull Lawyers
For the Respondent Bloomfield:	Furstenberg Law

EMERTON P
MACAULAY JA
TAYLOR JA:

Introduction and overview

On 23 August 2022, following a 12 day trial, a jury in the County Court convicted Luke Merryfull of one charge of rape (charge 2) and Shaun Bloomfield of two charges of rape (charges 1 and 4) and one charge of sexual assault (charge 3). The offending involved a single complainant (‘C’).
Following a plea in the County Court on 12 December 2022, Merryfull was sentenced on 12 April 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
2	Rape	25 years	19 months; 2 year community correction order (‘CCO’)	N/A
Total Effective Sentence:			1 year 7 months’ imprisonment 2 year CCO
Non-Parole Period:			N/A
Pre-sentence Detention Declared:			19 months’ imprisonment
Section 6AAA Statement:			N/A
Other Relevant Orders: Nil

Bloomfield was sentenced on the same day as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Rape	25 years	19 months	N/A
3	Sexual assault	10 years	6 months	N/A
4	Rape	25 years	19 months; 3 year CCO	Base
Total Effective Sentence:			1 year 7 months’ imprisonment 3 year CCO
Non-Parole Period:			N/A
Pre-sentence Detention Declared:			19 months’ imprisonment
Section 6AAA Statement:			N/A
Other Relevant Orders: 1. Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 in respect…

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 Merryfull and Bloomfield

Details

AGLC: Director of Public Prosecutions v Merryfull; Director of Public Prosecutions v Bloomfield [2023] VSCA 244
Case: [2023] VSCA 244
Decision Date: 13 October 2023

CaseChat Overview and Summary

The Director of Public Prosecutions appealed the sentences of two offenders who were convicted of rape and sexual assault. Each offender was sentenced to 1 year and 7 months’ imprisonment, with differing lengths of community correction orders. The Director contended that the sentences were manifestly inadequate, and the judge had erred in considering the offenders' rehabilitation and in moderating the sentence on the basis of delay. The Court of Appeal examined whether the judge's consideration of the delay in proceedings, and the offenders' rehabilitation efforts, constituted an error.

The court considered whether the judge had erred by mitigating the sentence based on the rehabilitation limb of delay. The court noted that the delay in proceedings was significant, spanning seven years between the initial charge and the final sentence. Despite the lengthy delay, the offenders had already served 19 months in prison. The court also considered the offenders' lack of remorse and their rehabilitative steps, which included participation in programs aimed at addressing their offending behaviour. The court held that the judge had not erred in taking these factors into account in sentencing.

The court further examined whether the judge erred in moderating the sentence based on general deterrence. The court held that the judge had appropriately considered the need for general deterrence but had also appropriately balanced this with the offenders' rehabilitation efforts and the significant delay in proceedings. The court noted that the judge had not overlooked the seriousness of the offences and had appropriately considered the need to protect the community. The court found that the judge had not erred in moderating the sentence on the basis of general deterrence.

The Court of Appeal dismissed the Director's appeal, holding that the sentences were not manifestly inadequate. The court found that the judge had appropriately considered the relevant factors in sentencing and had not erred in mitigating the sentence on the basis of rehabilitation or in moderating the sentence on the basis of general deterrence.

Orders