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Mertell v The King [2022] ACTCA 69

The offender was sentenced following pleas of guilty to 7 counts of possessing child abuse material in the form of data held in a computer or contained in a data storage device contrary to s 474.22A(1) of the Commonwealth Criminal Code and 2 counts of using a carriage service to access child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code. Original sentence imposed 6 years and 3 months imprisonment with a non-parole period of 24 months. Offender appealed on grounds that the sentence was manifestly excessive and that the sentencing judge failed to adequately take into account the principle of totality.

Totality: The prosecution conceded there was error. Error arose because the sentencing judge made the sentences in counts 1 to 5 totally cumulative on each other in factual circumstances in which that was not warranted. It was also accepted there was excessive accumulation between counts 6 to 9. As a result, the sentence imposed was necessarily manifestly excessive.

Leave to appeal granted. Appeal allowed. Offender resentenced to 9 months imprisonment (count 1), 6 months imprisonment (count 2), 2 months imprisonment (count 3), 5 months imprisonment (count 4) and 2 months imprisonment (count 6), commencing on 4 March 2022. Offender resentenced to 9 months imprisonment (count 5) commencing 4 December 2022, 9 months imprisonment (count 8) commencing 4 September 2023, and 3 months imprisonment (count 7) and 8 months imprisonment (count 9) commencing 4 January 2024. Offender to be released after 12 months upon entering a recognizance of $1000 with conditions.
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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