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Merrill (a Pseudonym) v The Queen [2018] VSCA 62

appeal against sentence — engaging in sexual intercourse with a child outside Australia contrary to s 272.8(1) Commonwealth Criminal Code — engaging in sexual activity with a child outside Australia contrary to s 272.9(1) Commonwealth Criminal Code — producing child pornography contrary to s 273.5(1)(a)(ii) Commonwealth Criminal Code — state offence — total original sentence imposed 5 years and 3 months’ imprisonment with 3 year non-parole period — co-operation — s 16A(2)(h) — practical difficulties of detection of this kind of overseas offending are well recognized — requires emphasis to be given to general deterrence but also highlights utility in offenders confessing to offences which might otherwise be difficult to prove — offender volunteered admissions in circumstances where had been confronted with some evidence of wrongdoing — even so without offender’s admissions unlikely offender would ever have been prosecuted — discount still applied — manifest excess — offender argued sentence not adequately reflect level of leniency warranted — contended sentences imposed high before co-operation discount applied — offender sought to establish by referring to sentencing practice as evidenced by three cases — maximum penalties for which offender fell to be sentenced greater than maximum penalties applied for offences in cases cited — that three instances cited suggestive of sentencing practice, cannot be determinative of appropriateness of sentence in question and even more so where sample of cases necessarily limited — victim impact statement — victim stated in victim impact statement that offending did not have emotional, psychological or physical impact and that situation improved due to offending — offender not rebutted presumption of harm in respect of victim — fact that child victim of extra-territorial offences perceives that sexual interaction might be to their benefit does not diminish the gravity of offending of this kind — must take into account victim’s dire social and economic circumstances — leave to appeal granted — appeal dismissed
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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