Merrill (a Pseudonym) v the Queen - [2017] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0050

ELLIOTT MERRILL (A PSEUDONYM)[1]

THE QUEEN

[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	SANTAMARIA JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 July 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 189
JUDGMENT APPEALED FROM:	DPP (Cth) v Merrill [2016] VCC 1215 (Judge Lawson)

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CRIMINAL LAW – 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 – Whether sentences imposed on two charges manifestly excessive – Criminal Code Act 1995 (Cth) ss 272.8, 272.9 – 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 refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

SANTAMARIA JA:

The applicant, now aged 61, pleaded guilty to one charge of engaging in sexual intercourse with a child outside Australia, one charge of engaging in sexual activity with a child outside Australia, one charge of producing child pornography material outside Australia and one charge of knowingly possessing child pornography.

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’ imprisonment

Other relevant orders
The total effective sentence imposed on the Commonwealth charges was 5 years’ imprisonment with a non-parole period of 2 years and 9 months’ imprisonment.

The total effective sentence imposed on the State charges was 6 months’ imprisonment.

The applicant was required to comply with the reporting obligations of the Sex Offenders Registration Act 2004 for life.

The applicant now seeks leave to appeal his sentence.

Circumstances of the offending

On 16 November 2015, the applicant arrived…

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 [2017] VSCA 189
Case: [2017] VSCA 189
Decision Date: 20 July 2017

CaseChat Overview and Summary

In the case of Merrill (a Pseudonym) v the Queen, the appellant sought leave to appeal against the sentence imposed by the County Court of Victoria for engaging in sexual intercourse with a child outside Australia, engaging in sexual activity with a child outside Australia, producing child pornography material outside Australia, and knowingly possessing child pornography. The County Court sentenced the appellant to a total of five years and three months’ imprisonment. The appellant argued that the sentences imposed on two of the charges were manifestly excessive.

The court was required to consider whether the sentences imposed on the charges of engaging in sexual activity with a child outside Australia and producing child pornography material outside Australia were manifestly excessive. The appellant relied on several authorities, including Assheton v The Queen, R v ONA, and R v Wicks, to support their argument that the sentences were excessive. The court needed to determine whether the sentences departed to such a degree from the appropriate range of sentences that they could be described as manifestly excessive.

In considering the arguments, the court noted the gravity of the offences committed, the impact of the offences on the victim, and the need for general deterrence. The court concluded that while the sentences were severe, they were not manifestly excessive. The court found that the sentences reflected the seriousness of the offences and were within the appropriate range of sentences for such crimes. Consequently, the court refused the appellant leave to appeal against the sentence.

Orders