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R v Mertell

R v Mertell

Case [2022] ACTSC 37 4 March 2022

Objective Seriousness

Moral Culpability

General Deterrence

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Mertell
Citation:	[2022] ACTSC 37
Hearing Dates:	16 December 2021, 9 February 2022
DecisionDate:	4 March 2022
ReasonsPublished:	9 March 2022
Before:	McWilliam AJ
Decision:	See [69] – [70]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possess child abuse material accessed via a carriage service – use a carriage service to access child abuse material – where offender exhibits symptoms consistent with autism spectrum disorder and attention-deficit hyperactivity disorder – whether there is a causal link between offending and diagnoses – whether coexistence of diagnoses constitutes exceptional circumstances
Legislation Cited:	Criminal Code Act 1995 (Cth) ss 474.22, 474.22A Crimes Act 1914 (Cth) ss 16A, 17A, 19, 20 Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019
Cases Cited:	Adamson v The Queen [2015] VSCA 194; 47 VR 268 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Cluett v The Queen [2019] WASCA 111 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Cth) & DPP v Garside [2016] VSCA 74; 50 VR 800 DPP (Cth) v Watson [2016] VSCA 73; 259 A Crim R 327 DPP (Cth) v Zarb [2014] VSCA 347 DPP v D’Alessandro [2010] VSCA 60; 26 VR 477 Fedele v The Queen [2015] NSWCCA 286; 257 A Crim R 78 Ibrahim v The Queen [2016] NSWCCA 6 Kannis v R [2020] NSWCCA 79 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 Mouscas v R [2008] NSWCCA 181 Peters v R [2018] NSWCCA 126 R v Bednikov (1997) 95 A Crim R 200 R v Burch [2020] ACTSC 192 R v Clarkson [2011] VSCA 157; 32 VR 361 R v Cobcroft (No 2) [2022] ACTSC 15 R v Currie [2015] ACTSC 404 R v Cusack [2021] ACTSC 75 R v Davison [2020] ACTSC 272 R v De Leeuw [2015] NSWCCA 183 R v Donald [2019] ACTSC 129 R v Freestone [2010] ACTSC 87 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Hartley-Kennett [2021] ACTSC 88 R v Hunter (1984) SASR 101 R v Hutchinson [2018] NSWCCA 152 R v Kelly (Edward) [2000] 1 QB 198 R v King [2013] ACTSC 279 R v Lanham [2014] ACTSC 128 R v Morosi (Supreme Court of the ACT, Burns J, 28 August 2013) R v Oliver & Ors [2002] EWCA Crim 2766 R v Payne-Moore [2021] ACTSC 125 R v Pham [2005] NSWCCA 314 R v Pham [2015] HCA 39; 256 CLR 550 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Sykes [2009] QCA 267 R v Tootell ex parte AG [2012] QCA 273 R v Verdins [2007] VSCA 102; 16 VR 269 R v…

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 R v Mertell

Details

AGLC: R v Mertell [2022] ACTSC 37
Case: [2022] ACTSC 37
Decision Date

CaseChat Overview and Summary

Phillip Fletcher Mertell pleaded guilty to multiple offences of possessing and accessing child abuse material in the ACT Supreme Court. The offences occurred between June 2020 and January 2021. The court considered the objective seriousness of the offences, the offender's moral culpability, and his subjective circumstances in sentencing. The court found that while the offender's diagnoses of autism spectrum disorder and attention-deficit hyperactivity disorder may have contributed to the volume of material downloaded, they did not significantly reduce his moral culpability. The court also found that the offender's age, lack of criminal history, and early guilty plea warranted some moderation of sentence. However, the seriousness of the offences and the need for general deterrence meant that a custodial sentence was necessary. The court imposed a sentence of 6 years and 3 months, suspended after 2 years on conditions including supervision by a probation officer and undertaking rehabilitation programs. However, due to a statutory limitation, the non-parole period was set at 2 years.

Orders