SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Mertell v The King |
Citation: | [2022] ACTCA 69 |
Hearing Date: | 10 November 2022 |
Reasons Date | 9 December 2022 |
DecisionDate: | 18 November 2022 |
Before: | Loukas-Karlsson, Kennett, and Abraham JJ |
Decision: | See [43] |
Catchwords: . | CRIMINAL LAW – APPEAL – possess child abuse material accessed via a carriage service – use a carriage service to access child abuse material – principles of totality – manifest excess – error conceded by prosecution – offender resentenced |
Legislation Cited: | Crimes Act 1914 (Cth) ss 4K, 16A, 17A, 19AC, 20 |
Cases Cited: | Andrikis v Nominal Defendant [2004] ACTSC 43; 190 FLR 136 |
Parties: | Commonwealth Director of Public Prosecutions (Crown) Phillip Mertell (Offender) |
Representation: | Counsel K Breckweg (Crown) F J Purnell SC (Offender) |
| Solicitors JDR Law (Appellant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 8 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McWilliam AJ Date of Decision: 4 March 2022 Case Title: R v Mertell Citation: [2022] ACTSC 37 |
THE COURT:
Introduction
This is an appeal against a total effective head sentence of 6 years and 3 months imprisonment with a non-parole period of 24 months for 9 offences relating to accessing and/or possessing child abuse material. On 18 November the Court upheld the appeal and resentenced the appellant to 30 months imprisonment with a recognisance release order (subject to various conditions) of 12 months imprisonment. On that occasion it was indicated that reasons were reserved and would be delivered at a later date.
In the course of preparing these reasons we have become aware that the form of the sentence pronounced on 18 November 2022 may involve error. The orders will therefore be varied in the manner discussed at [31] below.
The grounds of appeal alleged:
(a)That the sentence is manifestly excessive; and
(b)That the sentencing judge failed to adequately take into account the principle of totality
The respondent, who it is convenient to refer to as the prosecution, conceded that…
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- AGLC
- Mertell v The King [2022] ACTCA 69
- Case
- [2022] ACTCA 69
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the sentences imposed were manifestly excessive, particularly in light of the principle of totality. The prosecution conceded that there was an error in the sentencing process, which lent weight to the appellant's argument for resentencing.
The Court considered the cumulative effect of the sentences and whether they reflected an appropriate application of the totality principle, which requires that the total sentence imposed for multiple offences should not be disproportionate to the overall criminality of the offender. The concession by the prosecution indicated that the original sentencing judge may have erred in calculating or applying the total sentence. The Court's task was to review the sentences to ensure they were just and proportionate, taking into account the totality of the offending.
The Court allowed the appeal, finding the sentences to be manifestly excessive. The original sentences were set aside and a new sentence was imposed.
Orders
Orders of the court
See [43]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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