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R v Mertell [2022] ACTSC 37

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.  

Nature and Circumstances: The representative sample of material shows images that are highly offensive and degrading. There are an estimated 50 to 75 separate child victims in the material. Offender’s possession of the material was substantial, falling between 3 and 6 and a half months. Offending is objectively serious, without being of the worst kind for the offences in question. Offender’s submission that their technological incapacity obscured their ability to anticipate the contents of the files is difficult to reconcile with the offender’s lengthy career in the IT industry and repeated assertions of their knowledge of computers. The file description left no doubt as to what the file contained.  

Mental Condition: Psychological report considered that the offender presented moderate to severe symptoms consistent with DSM-5 diagnoses of Autism Spectrum Disorder (ASD) and Attentive-Deficit Hyperactivity Disorder (ADHD). Offender’s conditions manifested in behaviours that influenced the commission of the offences, however there is no indication the offender did not understand the illegality or immorality of their offending. Offender did know the wrongfulness of their conduct. Offender sought to minimise their culpability in stating that the downloading of material was accidental or inadvertent, the product of hoarding tendences and was due to curiosity. Accidental download and curiosity may have explained the first file the offender accessed; however, it does not explain the further 70 files accessed. In any event, curiosity demonstrates an interest in viewing the child abuse material and is an element that feeds the market to produce such material. Offender’s diagnoses may have contributed to the volume of material downloaded, but do not materially reduce the offender’s moral culpability or displace the primary of general deterrence for this type of offending. Offender submitted their dual diagnoses of ASD and ADHD rebutted the presumption in s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) to warrant an Intensive Corrections Order. Although the offender’s diagnoses certainly inform the appropriate sentence, their circumstances are not ‘exceptional’. Presumption applies and as such, no sentence other than a term of full-time imprisonment is appropriate.  

Rehabilitation: Offender offered limited cooperation to authorities. Offender’s responses in relation to the possession and access of the material were sometimes equivocal and reflect minimisation and a lack of remorse and insight into their offending. Offender consistently minimised their offending behaviour and failed to acknowledge its seriousness, inferring they were naïve and unaware of the child abuse material in their possession. Offender’s prospects of rehabilitation are guarded. Notwithstanding the fact the offender has been engaging in psychological treatment designed to address the offending, they appear to be at a very early stage of their journey into gaining some insight into the gravity of their offending, the harm it causes and how to prevent themselves from engaging in such conduct in the future.  

Offender sentenced to 6 years and 3 months imprisonment, with a non-parole period of 24 months. Discount of 25% granted as plea of guilty was entered at the earliest reasonable opportunity.
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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