Legal Research
Cases
Mercer (a pseudonym) v The Queen

Mercer (a pseudonym) v The Queen

Case [2015] VSCA 257 17 September 2015

Threat to inflict serious injury

Totality

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0037

SCOTT MERCER (A PSEUDONYM)[1]	Appellant
v
THE QUEEN	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 appellant.

---

JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2015
DATE OF JUDGMENT:	17 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 257
JUDGMENT APPEALED FROM:	DPP v [Mercer] (Unreported, County Court of Victoria, Judge Gaynor, 23 October 2014)

---

CRIMINAL LAW – Appeal – Sentence – Domestic violence – Assault (five charges), false imprisonment, intentionally cause injury, threat to inflict serious injury – Sentence three years six months, non-parole period two years six months – Whether manifestly excessive – Prolonged, brutal offending – Whether judge took into account withdrawn allegation of sexual penetration – Totality – Loss of opportunity to apply for parole under earlier sentence – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr I J Polak	Haines and Polites
For the Crown	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P

BEACH JA:

Introduction

On 5 August 2014, the appellant (‘SM’) pleaded guilty in the County Court to five charges of common assault, one charge of intentionally causing injury, one charge of threatening to inflict serious injury and one charge of false imprisonment. Following a plea hearing on 5 September 2014, SM was sentenced, on 23 October 2014, as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Common assault 5y 9m 4m

2 Intentionally causing injury 10y 18m Base

3 Common assault 5y 3m 1m

4 Common assault 5y 3m 1m

5 Threat to inflict serious injury 5y 9m 4m

6 Common assault 5y 9m 4m

7 Common assault 5y 3m 1m

8 False imprisonment 10y 18m 9m

Total Effective Sentence: 3y 6m

Non-Parole Period: 2y 6m

Pre-sentence Detention Declared: 290 days[2]

6AAA Statement: 4y with a non-parole period of 3y

Other orders:
Forfeiture order

[2]While the amount of pre-sentence detention declared by the judge was 290 days, correctly calculated the relevant amount at the time of sentencing was in fact 261 days. On this appeal, the respondent submitted that we should correct the pre-sentence detention declaration pursuant to the provisions of the Sentencing Act 1991.

On 21 May 2015, SM was granted leave to appeal against sentence on the following grounds:

1.The learned sentencing judge erred in imposing a total sentence and a non-parole period that are manifestly excessive.

Particulars
The total sentence imposed and the non-parole period are manifestly excessive in light of:
(a)       The appellant’s plea of guilty and remorse.
(b)       Her Honour taking into account irrelevant considerations.
(c)       The appellant’s significant steps taken towards rehabilitation.
(d)      Totality.
(e)       Cumulation orders.
2.The learned sentencing judge failed to give sufficient weight to totality, Renzella[3] time and the lost opportunity for parole.
[3]R v Renzella [1997] 2 VR 88 (‘Renzella

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 [2015] VSCA 257
Case: [2015] VSCA 257
Decision Date: 17 September 2015

CaseChat Overview and Summary

Mercer appealed against his sentence for multiple domestic violence offences. The trial judge had sentenced him to three years and six months in prison, with a non-parole period of two years and six months. The nature of the offences included assault, false imprisonment, intentionally causing injury, and threatening to inflict serious injury. The appeal focused on whether the sentence was manifestly excessive and whether the trial judge had taken into account a withdrawn allegation of sexual penetration.

The court considered whether the sentence was manifestly excessive, weighing the severity and nature of the offending against the sentence imposed. The court recognised the prolonged and brutal nature of the offending, but also considered the totality principle and the need to maintain public confidence in the justice system. The court held that while the offending was serious, the sentence was not manifestly excessive given the circumstances. The court further found that the trial judge had not erred in not considering the withdrawn allegation of sexual penetration, as it was not before the court and did not form part of the conviction.

The court dismissed the appeal, affirming that the sentence was not manifestly excessive. The court noted the importance of considering the totality of the offending and the need to maintain public confidence in the justice system. The court also acknowledged the loss of opportunity for the appellant to apply for parole under an earlier sentence, but found that this did not render the current sentence manifestly excessive. As a result, the appeal was dismissed, and the original sentence stood.

Orders