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Merrill (a pseudonym) v The Queen

Merrill (a pseudonym) v The Queen

Case [2018] VSCA 62 20 March 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0050

ELLIOTT MERRILL (A PSEUDONYM)[1]	Applicant
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 applicant.

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JUDGES:	WEINBERG JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2018
DATE OF JUDGMENT:	20 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 62
JUDGMENT APPEALED FROM:	DPP v Merrill (a pseudonym) [2016] VCC 1215 (Judge Lawson)

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CRIMINAL LAW – Election to renew application for leave to appeal against sentence – One charge of engaging in sexual intercourse with child outside Australia – One charge of engaging in sexual activity with child outside Australia – One charge of producing child pornography material outside Australia – One charge of knowingly possessing child pornography – Sentence of 5 years and 3 months’ imprisonment with non-parole period of 3 years – Whether sentences imposed on two charges manifestly excessive – Whether Ellis discount given sufficient weight – Criminal Code Act 1995 (Cth) ss 272.8, 272.9 – R v Ellis [1986] 6 NSWLR 603 – Assheton v The Queen (2002) 132 A Crim R 237 , R v ONA (2009) 24 VR 197, R v Wicks [2005] NSWCCA 409 considered – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC	Rowan Skinner & Associates
For the Crown	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WEINBERG JA
KIDD AJA:

Introduction

The applicant now aged 61, pleaded guilty to one charge of engaging in sexual intercourse with a child outside Australia[2], one charge of engaging in sexual activity with a child outside Australia[3], one charge of producing child pornography[4] and one charge of knowingly possessing child pornography.[5]
[2]Contrary to s 272.8(1) of the Criminal Code 1995 (Cth).
[3]Contrary to s 272.9(1) of the Criminal Code 1995 (Cth).
[4]Contrary to s 273.5(1) of the Criminal Code 1995 (Cth).
[5]Contrary to s 70(1) of the Crimes Act 1958.

On 18 August 2016, the applicant was sentenced in the County Court as follows:

Charge No. Offence Maximum penalty Sentence Commencement

1 Engaging in sexual intercourse with a child outside Australia [Criminal Code (Cth) s 272.8(1)] 20 years’ imprisonment 5 years’ imprisonment 18 November 2016

2 Engaging in sexual activity with a child outside Australia [Criminal Code (Cth) s 272.9(1)] 15 years’ imprisonment 3 years’ imprisonment 18 November 2016

3 Producing child pornography material outside Australia [Criminal Code (Cth) s 273.5(1)(a)(ii)] 15 years’ imprisonment 6 months’ imprisonment 18 November 2016

4 Knowingly possessing child pornography [Crimes Act 1958 s 70(1)] 5 years’ imprisonment 6 months’ imprisonment 18 August 2016

Total effective sentence: 5 years and 3 months’ imprisonment

Non-parole period: 3 years’ imprisonment

Pre-sentence detention declaration: 56 days

Section 6AAA Statement 7 years’ imprisonment with a non-parole period of 5 years

Other relevant orders
The total effective…

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 Merrill (a pseudonym) v The Queen

Details

AGLC: Merrill (a pseudonym) v The Queen [2018] VSCA 62
Case: [2018] VSCA 62
Decision Date: 20 March 2018

CaseChat Overview and Summary

The case before the court involved an individual, referred to as Merrill, who was convicted on multiple charges related to sexual activities with a child outside Australia, including producing child pornography. Merrill appealed against the sentence imposed, arguing that the severity of the sentence was excessive. The appeal was heard in the court of appeal. The primary legal issues were whether the sentences imposed on two specific charges were manifestly excessive and whether the discount applied under the Ellis principle was given sufficient weight. The court considered relevant provisions of the Criminal Code Act 1995 (Cth) and precedents such as R v Ellis, Assheton v The Queen, R v ONA, and R v Wicks. The court examined the proportionality of the sentences in light of the nature and circumstances of the offences and the mitigating factors presented.

The court reviewed the sentences imposed, noting the severity of the crimes committed but also acknowledging the mitigating factors. It assessed the application of the Ellis discount, which recognises the potential for rehabilitation and the circumstances that may reduce culpability. The court concluded that while the sentences were severe, they were not manifestly excessive given the nature of the crimes and the need for deterrence and denunciation. The court found that the discount applied was adequate and that the totality of the sentence, including the non-parole period, was proportionate to the offences committed. Ultimately, the court decided that Merrill's appeal against the sentence was without merit and dismissed the appeal. However, the court granted leave to appeal, allowing further review by a higher court.

Orders