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Mercer (a pseudonym) v The Queen

Mercer (a pseudonym) v The Queen

Case [2021] VSCA 132 14 May 2021

Appeal

Criminal Liability

Sentencing

Manifestly Excessive Sentence

Limitation Periods

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2020 0100

SCOTT MERCER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]In compliance with s 166 of the Family Violence Protection Act 2008, a pseudonym has been used so as to prevent the identification of a person the subject of an order made under that Act.

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JUDGES:	MAXWELL P, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2021
DATE OF JUDGMENT:	14 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 132
JUDGMENT APPEALED FROM:	[2019] VCC 1193 (Judge Marich)

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CRIMINAL LAW – Conviction – Application for extension of time within which to file application for leave to appeal against conviction – False imprisonment – Attempt to pervert the course of justice – Incriminating conduct – Whether prosecutor relied on evidence of conduct as evidence of incriminating conduct – No reference to conduct being evidence of incriminating conduct by prosecutor in final address or in presence of jury – Whether, in light of prosecutor’s failure to refer to incriminating conduct in final address, judge erred in giving agreed directions about incriminating conduct – Whether conduct capable of being incriminating conduct – Whether use of conduct as incriminating conduct involved ‘bootstraps’ reasoning – Proposed ground of appeal not reasonably arguable – Inadequate explanation for delay – Application for extension of time within which to file application for leave to appeal refused – Jury Directions Act 2015, ss 12, 14, 15, 18, 19, 21 and 22.

CRIMINAL LAW – Sentence – Application for extension of time within which to file application for leave to appeal against sentence – False imprisonment, attempt to pervert the course of justice and persistent breach of family violence intervention order – TES of 5 years and 3 months, with NPP of 3 years and 9 months – Sentence of 3 years and 6 months for attempt to pervert course of justice – Whether sentences manifestly excessive – Manifest excess not reasonably arguable – Inadequate explanation for delay – Application for extension of time within which to file application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J O’Connor	Condello Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

BEACH JA
T FORREST JA:

On 14 May 2019, the applicant pleaded guilty to one charge of persistently contravening a family violence intervention order.[2] On 21 May 2019, following a trial, he was convicted of one charge of false imprisonment and one charge of attempting to pervert the course of justice.[3] On 30 July 2019, he was sentenced as follows:
[2]Section 125A of the Family Violence Protection Act 2008.
[3]Offences at common law.

Charge on Indictment H13269464.1
Offence Maximum Sentence Cumulation

2 False imprisonment 10 years
3 years and
6 months
Base

5
Attempt to pervert the course of justice
25 years
3 years and
6 months
18 months

Charge on Indictment H13269464.2
Offence Maximum Sentence Cumulation

1

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 Mercer (a pseudonym) v The Queen

Details

AGLC: Mercer (a pseudonym) v The Queen [2021] VSCA 132
Case: [2021] VSCA 132
Decision Date: 14 May 2021

CaseChat Overview and Summary

The case of Mercer (a pseudonym) v The Queen involved an appeal against both conviction and sentence by the appellant, who was convicted of false imprisonment, attempting to pervert the course of justice, and persistently breaching a family violence intervention order. The appeal centred on two primary issues: the adequacy of directions given by the trial judge concerning incriminating conduct and the perceived excessiveness of the sentence handed down. The High Court was tasked with determining whether the appellant's application for an extension of time to appeal against his conviction and sentence should be granted.

The legal issues before the court involved the interpretation of incriminating conduct as defined under the Jury Directions Act 2015. The appellant argued that the trial judge had erred by giving agreed directions on incriminating conduct when the prosecutor did not refer to the conduct as such during the trial. The court had to consider whether the prosecutor's failure to characterise the conduct as incriminating in their final address or in the presence of the jury impacted the judge's directions, and whether such conduct could be considered incriminating under the legislation. Furthermore, the court evaluated whether the appellant's proposed grounds for appeal against the sentence, arguing it was manifestly excessive, were reasonably arguable and whether the appellant had provided an adequate explanation for the delay in filing the appeal.

The High Court found that the trial judge did not err in giving the agreed directions concerning incriminating conduct, as the prosecutor's failure to refer to the conduct as such did not negate the judge's ability to do so. The court also concluded that the proposed grounds of appeal against the sentence were not reasonably arguable, and the appellant had not provided an adequate explanation for the delay in filing the appeal. As a result, the applications for extensions of time to file applications for leave to appeal against both conviction and sentence were dismissed. The court emphasised the importance of timely and adequately justified appeals to maintain the integrity of the judicial process.

Orders