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DPP v Merton (A pseudonym) [2021] VCC 1324

The offender was sentenced following a plea of guilty to 1 count of using a carriage service to harass contrary to s 474.17(1) of the Commonwealth Criminal Code. Offender was sentenced to additional state offences.

Victim of Offence: Victim’s statement detailed the profound effect the offending had on themselves and their children. The offender’s actions not only had a physical impact on the victim but ongoing emotional and psychological damage. Consideration of impact on the victims cannot swamp the sentencing process.

Mental Condition: Offender met the criteria for a severe personality disorder with borderline patterns, persistent depressive disorder and stimulant use disorder. Offender’s moral culpability was reduced by reason of their borderline personality disorder substantially impacting their ability to think through and reason. Verdins limbs 1, 3 and 5 applied. The extent of reduction in moral culpability was limited somewhat by the impact drug use had on the offender’s behaviour. Offender’s personality impairment, depressive disorder and ongoing pandemic restrictions would make imprisonment more burdensome.

Antecedents: Offender had concerning and substantial prior criminal history from a young age including extensive interstate priors and similar offending. Offender’s unstable and disadvantaged childhood was taken into account to reduce their moral culpability. Offender endured a childhood of emotional neglect, exposure to violence, physical abuse and sexual abuse. Offender had an unstable education and was drawn to alcohol abuse by age 13 and cannabis use by age 14. Degree of personal culpability to be attached to offending must appropriately be moderated.

Guilty Plea: Plea was entered at the earliest reasonable opportunity and is of substantial utilitarian value as the offender saved the time and resources that would otherwise have been expended on contested proceedings. Avoidance of multiple trials carried significant weight in relation to current pandemic restrictions and sparing witnesses the inconvenience and undoubted stress involved in giving evidence at trial. Plea was consistent with offender’s self-awareness and genuine remorse for their offending.

Rehabilitation: Offender’s criminal history has seen the offender sentenced to periods of imprisonment on 11 occasions since 2002. Present offending was committed whilst on parole and in breach of a Community Corrections Order. Offending suggests that the offender has a limited capacity to appropriately regulate their behaviour, especially when under the influence of drugs. Offender posed a high risk of re-offending and has poor prospects of rehabilitation, though successful engagement with treatment in the future is possible.

Offender sentenced to 6 months imprisonment for carriage service offence. Total sentence 4 years and 4 months imprisonment with a 3 year and 3 month non-parole period.
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