CDPP v Merrett [2025] VCC 477

1. The offences of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, attempting to dishonestly obtain a financial advantage from a Commonwealth entity, and failure to comply with s3LA order are all objectively serious offences as reflected in their respective maximum penalties of 10 years, 10 years and five years respectively. However, as with any offence, the gravity of your offending must be assessed by reference to the particulars of your case.
2. I am of the view that your offending was serious. Each of Charges 1 and 2 are rolled-up charges representing an ongoing course of criminal conduct over a period of four and 12 months respectively. During the entire 12-month period, you made multiple claims for payment for amounts ranging in value, from $880 through to $72,636.00. You submitted amended statements for tax periods in order to obtain more money in respect of that period, and you made telephone calls and web enquiries following up your claims. Significantly, this was not a case where you were simply overstating otherwise legitimate claims. Rather, you were not operating a business at the time, and as such, were not entitled to any refund at all. As identified by the prosecution, your conduct was premeditated, persistent and methodical. In total, you dishonestly claimed $730,944 from the ATO, of which $394,801 was paid to you. By reason of this offending, you defrauded the Commonwealth of a large amount of money and tried to obtain even more.
3. In sentencing you for Charges 1 and 2, I am of the view that there must be a level of cumulation between the charges, given the different time periods over which the offending occurred and the quantum and number of transactions rolled up into each charge. However, given the similarity of the conduct constituting Charges 1 and 2, I am of the view that there need only be a moderate level of cumulation between them.
4. Insofar as the charge for failing to comply with s3LA is concerned, this is also an inherently serious offence, as failure to comply with such an order, serves to impede the ability of police to investigate fraudulent conduct. I note that you were provided with a seven day window within which to comply with the order. As such, your offending could not be said to be spontaneous. However, in my view, while serious, your conduct in failing to provide access to your phone still falls somewhere in the lower to mid-range for this type of offence.
5. Returning to the offending the subject of Charges 1 and 2, as I have already said, I do consider your offending to be serious offending. I agree with the prosecution's submission, that the need for general deterrence, that is the deterring other people in the community from doing the same thing, is an important sentencing factor for offences involving fraud against the public revenue. The honesty of people claiming under the Australian taxation law's self-assessment system is essential to the successful operation of the system. Fraud on the taxation system is not a victimless crime. The burden of fraud on the system falls on the whole community. Offences of this kind are relatively easy to commit, they can be difficult to detect, and investigations can consume considerable public resources. In this instance, whilst you took no steps to conceal your true identity, your offending was only discovered after you failed to substantiate your claims following multiple audits of your claims by the ATO. Given the difficulty in detecting such offences, the potential for such offending to undermine the integrity of the tax system, and the need to protect the revenue, a sentence should be imposed that deters others from similar offending. However, I acknowledge that the gravity of your offending and the need to give substantial weight to general deterrence, are only two of a number of factors which must be balanced in the sentencing synthesis.[2]

1. This matter has some history. As already noted, your offending in respect of Charges 1 and 2 occurred in the period between 16 June 2021 and 16 June 2022, whilst your failure to comply with the s3LA order occurred on 8 August 2022. You were not charged until 27 October 2023 and the matter first came before the court, for a filing hearing on 20 November 2023. The matter then proceeded through a number of committal mentions to allow for plea negotiations to take place. You ultimately indicated your intention to plead guilty to the current charges at a committal mention on 28 June 2024, at which point, you were committed to this court by way of straight hand-up brief for a plea of guilty. Your plea hearing commenced before me on 13 November 2024 and was then further adjourned initially to 27 February 2025 and then today's date, in order that a number of reports - including a psychological report and what turned out to also be medical material, could be obtained.
2. Section 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the court must take into account the fact of the plea, the timing of the plea, and the degree to which the fact and timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence. Further, s16A(2)(f) and s16A(2)(h) require me to take into account your degree of contrition for your offending, and your level of co-operation with law enforcement agencies investigating this offence.
3. Despite there being some passage of time for this matter to reach conclusion, I do consider your plea of guilty, to have been entered at the earliest opportunity. Your plea both facilitates the course of justice and has significant utilitarian value, saving the time and expense of this matter proceeding to trial, and saving witnesses from having to give evidence. Further, I am satisfied that your plea of guilty, considered in light of the conversations you have had with professionals,[3] and members of your family, does reflect both an acceptance of responsibility, and remorse, by you for your offending.
4. In the circumstances, I have given you a substantial discount for your plea of guilty.

1. You are now 31 years of age and you come before the court with a dated, minor and largely irrelevant criminal history, comprising of one speeding offence and one offence of possessing a drug of dependence, for both of which you received non-conviction adjourned undertakings.
2. You were born in Victoria, as the youngest of four sons to your parents Ricky and Sue Merrett. Your father had significant untreated mental health and substance abuse issues and was violent and unpredictable in the home. The references provided on your behalf on the plea from your brothers and your mother describe the horrors of early life with your father. Your brother Brent, in his reference, described your father's violent abusive temper, and the sarcastic and cruel manner in which he spoke to your mother and each of you and your siblings. He explained how your father would hit all of you and then brush it off as if nothing had happened. He also spoke of you being particularly petrified of your father. You would sleep in Brent's room and would talk about wanting to run away.
3. You, yourself report that your earliest childhood memories are of your father meting out violence and abuse to you and your family members. As a young child, you saw your father badly assault and injure your mother on more than one occasion. There is no doubt, on the material before the court, that your home environment during your early childhood was unsettled and unsafe.
4. When you were in your early teens your mother successfully managed to separate from your father - after he was sentenced to a lengthy term of imprisonment - and you have had no contact with your father since that time. Following on from her separation with your father, your mother shouldered the responsibility of financially supporting and raising you and your three siblings, with the assistance of her parents. There was little money available and your mother struggled to meet house repayments despite working two jobs.
5. Despite the issues at home, and a number of relocations, you attended school through to the conclusion of Year 10. You had a relatively positive experience of school in your primary years; however, you started to struggle at high school both academically and in terms of being bullied. You report that you had difficulties with maintaining attention and were placed into remedial classes due to poor academic performance and issues with engagement. As a result of these difficulties, you started to disengage from education and would miss up to three days per week of school. After completing Year 10, you left school and commenced a 12-month pre-apprenticeship course in cabinet-making at TAFE. You enjoyed and did well in the practical aspects of the course, but you struggled to complete the theory-based aspects of the program. It was around this time that you were first introduced to drugs within your peer group. You commenced by using occasional MDMA but soon moved to methamphetamine and became addicted. Despite your introduction to drug use, you started to work in the field of manufacturing and installing stairs and ultimately became registered and certified in this field.
6. I am told that your adult life has featured a cycle of abstinence, relapse and sustained drug use. In periods of relapse, you would consume ice daily. Alongside your drug issues, you also developed an addiction to gambling. This commenced with occasional visits to the pokies in early adulthood, but developed into an online gambling habit, through gambling applications such as Ladbrokes and SportsBet.
7. Initially you were able to conceal your drug and gambling habits from family members and friends. You commenced a relationship with Jade and the two of you lived together in Sunbury. You also managed to maintain relatively consistent employment. However, your drug use started to impact on your reliability at work. You lost jobs and became financially insecure - jumping between employers in circumstances where the quality of your work would enable you to secure employment. Your gambling increased, and you made increasingly less likely bets to increase the chances of big payoffs to clear debt. This in turn led you to increased drug use. Your relationship with Jade came under some strain due to your drug use and gambling issues, however, the two of you went on to have two children together - Indii (who is now three years of age) and Oakleigh (who is now two years of age and has special needs). I am told that your drug use substantially reduced following the birth of your children, however, your gambling issues continued.
8. It was put on your behalf that at the time of your offending, you were struggling with a worsening gambling addiction, and that you used most of the proceeds of your offending to gamble and repay gambling-related debts. You were disengaged from employment and your drug use started to escalate. Your relationship with Jade fell under strain due to your struggles with gambling and drug dependence, and the associated financial stress. Following your offending, the two of you gave up your family home in Sunbury and moved in with Jade's parents. However, your relationship ended and you were asked to leave when Jade's parents discovered the nature of your offending.
9. Since that time, Jade and your children have continued living with her parents, whilst you have lived with your maternal grandparents. You have the children at your grandparent's home one third of the time, and the remainder of the time you visit them on an almost daily basis. You have also been paying Jade a sum of child support. Each of the references tendered on the plea speak highly of you as a hands on, loving and caring father to your children - and in particular to Oakleigh, who requires a lot more attention due to his special needs.
10. Whilst you have been able to curtail and then cease your drug use in the aftermath of your offending, (including going through a difficult period of detoxification at home), you have continued to struggle with problematic gambling. In approximately November of last year, you utilised BetStop to self-ban yourself from all betting applications and you report that this has been effective in reducing your gambling behaviour.

Impact of Mental Health Issues and Childhood Deprivation

1. A psychological report authored by Mr Austin Campbell and dated 21 January 2025 was tendered on the plea. The report was prepared for the purposes of this proceeding.
2. In Mr Campbell's opinion, at the time of the offending, you were suffering from a gambling disorder, a substance use disorder, and Attention-Deficit/ Hyperactivity Disorder (ADHD) - all of which are ongoing issues for you. Additionally, whilst you do not meet the diagnostic criteria for Post-Traumatic Stress Disorder, Mr Campbell is of the opinion that your emotional and social development has been impacted by your exposure to traumatic experiences throughout your childhood and into adolescence. In particular, you have developed an avoidant style of identifying, communicating and managing experiences of psychological distress, which has predisposed you to the development of mental health issues and maladaptive behaviours throughout your life. Mr Campbell noted that you appear to have commenced using avoidant and harmful behaviours - such as your drug use and gambling - to reduce experiences of psychological distress in your late teens, with those behaviours then persisting throughout your adult life. Your gambling behaviour, in particular, appears to have escalated throughout adulthood, resulting in the development of a gambling disorder.
3. Mr Campbell is of the view that your engagement in the offending behaviour appears to have been influenced by underlying mental health issues, which likely impacted your executive functioning skills including your consequential thinking skills, your inhibition control and self-control. He noted that you appear to have engaged in the offending for financial gain to support your gambling and substance use behaviours. You were further impacted in terms of your general functioning as a result of your ADHD symptoms.
4. Mr Campbell is of the opinion that you do have positive prospects of rehabilitation, given your willingness to engage in treatment, your efforts to take responsibility for your offending, and the steps you have made to date towards abstaining from substance use and gambling. However, he noted that without engaging in appropriate treatment, you are at risk of relapsing into problematic and harmful behaviours, in response to experiences of distress, which would place you at an increased risk of re-offending. He recommended that you undergo dialectical behaviour therapy to provide you with adaptive coping strategies for dealing with your distress, and that you engage with support services in respect of your gambling disorder, to provide you with strategies to avoid future issues with gambling.
5. Finally, Mr Campbell was of the view that your challenging life experiences and resulting mental health issues are likely to make any period of incarceration more challenging for you, than for others who do not experience such issues. He noted that you present as at risk of suicidal ideation/ behaviour in response to separation from your children and family and would benefit from an immediate assessment on admission to custody to ensure your safety. Further, he recommended that you receive ongoing support from mental health staff during any period of incarceration, in order to maintain stable mental health whilst in custody and to assist you with effective reintegration back into the community.
6. Mr De Witt submitted on your behalf, that given your traumatic and deprived childhood and your mental health problems, that the principles established in the cases of Verdins v R [2007] VSCA 102 ('Verdins') and Bugmy v R (2013) 249 CLR 571 ('Bugmy') are relevant to this case. In particular, Mr De Witt submitted that given the combination of the impact of your mental health conditions and your traumatic childhood, your moral culpability for your offending is reduced. Further, he submitted that your time in custody will be more onerous by reason of your mental health difficulties than it would be for someone without those same difficulties, that your mental health issues are relevant to the type of sentence to be put in place, and that there is a serious risk of imprisonment having a significant adverse effect on your mental health, especially when regard is had to the lesser level of mental health treatment in custody than the community, and your significant concerns about the profound effect of your incarceration on your grandparents and children.
7. Mr Keks, on behalf of the prosecution, conceded that the principles in Bugmy do apply in your case in the general sense, and agreed that your time in custody will be more onerous by reason of your mental health difficulties. However, he submitted that whilst your background and mental health issues provide a context and a degree of explanation for your offending behaviour, your moral culpability should not be reduced in a substantial way by reference to these factors. Mr Keks submitted that your offending consisted of a year-long fraud, comprising of the methodical lodgement of documents to claim amounts of money for which you had a complete lack of entitlement. Further, he submitted that on the factual material before the court, it would appear you were gainfully employed until you successfully started perpetrating the frauds. Mr Keks submitted that in all of the circumstances, there is insufficient material to identify a causal link or connection, between your mental health impairments and your offending. Further Mr Keks submitted that there is insufficient evidentiary foundation for a conclusion that there is, in your case, a serious risk of imprisonment having a significant adverse effect on your mental health.
8. In Bugmy, the High Court explained the two different ways in which childhood deprivation may potentially be relevant to the assessment of moral culpability - the first is a generalised way - not requiring any causal link - where the circumstances of deprivation may mitigate sentence, because the offender's moral culpability is likely to be less than the culpability of an offender, whose formative years have not been marred in that same way. The second is more specific and requires a causal link between the circumstances of the deprivation and the offending conduct.[4] Whilst the High Court observed in Bugmy that the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, there is not a requirement that childhood deprivation must be 'profound' before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability.[5] As stated in Sabbatucci v The Queen [2021] VSCA 340:

Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered, and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[6]

1. Turning to the principles in respect of the relevance of mental health issues in sentencing, in Verdins v R [2007] VSCA 102 ('Verdins') the court held that impaired mental functioning, whether temporary or permanent, is relevant to sentencing in at least six ways:

(i) the condition may reduce the moral culpability of the offending conduct as distinct from the offender's legal responsibility;

(ii) the condition may have a bearing on the kind of sentence that is imposed and the conditions in which it is served;

(iii) whether general deterrence should be moderated or eliminated as a sentencing consideration, depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both;

(iv) whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending, or at the date of sentence or both;

(v) the existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; and

(vi) where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

1. Where reliance is placed on the first proposition in Verdins, concerning moral culpability, the question for the court is whether the evidence establishes, on the balance of probabilities, that the impairment of mental functioning did contribute to the offending in such a way, as to render the offender less blameworthy for the offending than he or she would otherwise have been. The court in Verdins identified a variety of ways in which courts have held, that impaired mental functioning might reduce moral culpability, including where the offender's ability to exercise appropriate judgment is impaired; the offender's ability to make calm and rational choices, or to think clearly is impaired; the offender's mental functioning makes them disinhibited; the offender's ability to appreciate the wrongfulness of the conduct is impaired; the offender's intent to commit the offence is obscured; or the offender's mental functioning contributed causally to the commission of the offence.
2. I am satisfied on the material before the court that any time you spend in custody will be made more onerous, by reason of your mental health issues, than it would be for someone without those same issues. It is clear from Mr Campbell's report that you are suffering from a significant level of psychological distress and anxiety. Further, I accept Mr Campbell's opinion that you present as at risk, of developing suicidal ideation/behaviour on your admission into custody, in response to separation from your children and family, and that you would benefit from an immediate assessment on admission to custody to ensure your safety. Whilst I accept that a decline into suicidal behaviour, if it occurred, would amount to a significant impact on your mental health, there is limited material from which to assess the seriousness of the risk of this occurring. Ultimately, I have come to the conclusion that this risk of decline into suicidal behaviour, and the accompanying need for additional monitoring and care, is something which will add to the burden of your mental health issues in custody, and I have taken it into account in that way in sentencing you.
3. Insofar as the contribution of your upbringing to your offending is concerned, I accept that you had a significantly traumatic childhood. I accept, on the basis of Mr Campbell's report, that your childhood experiences have had a detrimental and traumatic impact upon you, causing you instability in your mental health, and contributing to you utilising maladaptive coping strategies, such as substance abuse and gambling to control your symptoms, rather than using something like counselling. In this way, the impact of your childhood trauma has significantly contributed to the context in which your offending took place. Taking these matters into consideration, I accept that your childhood deprivation is relevant to an assessment of your moral culpability in the general sense identified in Bugmy and I am of the view that there should be some reduction in your moral culpability, by reason of that deprivation.
4. However, I am not satisfied on an examination of the material before the court, that your mental health issues could be said to have contributed to your offending, in such a way as to additionally reduce your moral culpability. Whilst Mr Campbell is of the opinion that your underlying mental health issues can impact your executive functioning skills, including your consequential thinking skills, your inhibition control and self-control; and whilst I accept that your gambling disorder contributed to the context in which your offending occurred; your offending was not spur of the moment, one-off offending where you had no time to consider the consequences of your actions or reflect on what occurred. Your offending occurred on multiple occasions, over an extended period of time, in circumstances where you knew what you were doing was wrong. Further, you had recourse to follow up enquiries and you amended forms to increase the amount of money being sought. I may have come to a different conclusion if you had offended on a single occasion, and in circumstances where there was no recourse to follow up enquiries and amendments of forms. However, given the particular circumstances of the offending which brings you before the court, and the evidence which I have before me, I am not of the view that the evidence establishes on the balance of probabilities, that the impairment of mental functioning did contribute to the offending in such a way, as to render you less blameworthy for the offending than you would otherwise have been.

1. Your counsel submitted that family hardship is another mitigatory matter in this case, both in terms of the hardship which will be suffered by your grandparents whilst you serve a term of imprisonment, and in terms of an increased burden upon you of imprisonment, by reason of your concerns for the welfare of your children and grandparents whilst you are in custody.
2. Firstly, in respect of family hardship, it was submitted on your behalf that you are the main support for your grandparents with whom you currently reside. On the plea, I received a medical report from Dr Jal Bhathwalla dated 20 February 2025, with accompanying attachments which details the significant health problems each of your grandparents is suffering. Your grandmother has heart issues, is on a pacemaker, is at risk of stroke, and is considerably stressed in respect of both your grandfather's health and your impending sentence. Your grandfather suffers from long term chronic pulmonary obstructive disease, for which he has been hospitalised on a number of occasions, and has a history of bladder and prostate cancer, the latter of which has recently recurred. I am told that he has again been hospitalised today for ongoing health issues. Your grandmother, in her reference, details the substantial assistance which you provided to her and your grandfather around the home and in assisting them to attend their medical appointments. It is clear from Mr Campbell's psychological report that you are very concerned about their health and their ability to cope on a day-to-day basis when you are in custody and not able to assist.
3. Secondly, you are also a significant support to your very young children, one of whom has special needs. Whilst they will still have a place to live and their mother to look after them, whilst you are in custody, you will not be in a position to assist them either financially or in a physical sense, and your children will have limited contact with you. Again, it is clear from Mr Campbell's report that this is a significant matter weighing upon you at this time.
4. Mr Keks, on behalf of the prosecution, submitted that whilst it is no longer necessary when sentencing for Commonwealth offences that family hardship be exceptional before reliance can be placed upon it, the weight to be accorded to family hardship in your case should be minimal. He submitted that impacts of this kind are an inevitable consequence of being found guilty of a serious crime and sentenced to a term of imprisonment.
5. Insofar as the impact on the burden of imprisonment on you by reason of your concerns about your family whilst in custody, Mr Keks accepted that your concerns about the welfare of your grandparents and your children, are likely to weigh upon you whilst you are in custody.
6. Pursuant to s16A(2)(p) of the Crimes Act 1914 (Cth) in sentencing you, I must take into account the probable effect that any sentence or order under consideration would have on your family or dependants. Further, the impact upon you of the hardship caused to family members by your imprisonment is also a relevant consideration in sentencing. I accept that your grandparents will suffer from some hardship during any period which you may be required to serve in custody. I accept that you are the main support person for your grandparents and your absence will have an impact upon each of them. However, by all accounts you do have a large family, who no doubt will be able to assist your grandparents to some extent. They will not be rendered homeless or completely devoid of assistance in your absence. Accordingly, I am of the view that whilst regard should be had to family hardship as a mitigating factor in sentencing you, limited weight should be accorded to this factor.
7. I am of the view, however, that your anxiety about your grandparents' and your children's welfare, whilst you are in custody will be significant, especially given the ill health of your grandparents and the challenges faced by your son. I do accept that these factors will contribute to making any time you spend in custody more burdensome, and I take this added burden of imprisonment into account in sentencing you.

1. As I have already outlined, there has been some delay in this matter from the period of the search warrant being executed at your home on 16 June 2022, and you being sentenced for this offending in February 2025. Some of that delay is accounted for in the period of investigation (which was not assisted by your failure to provide the passcode to your phone) between the search warrant being executed and you being charged, the rest results from the delays which have occurred throughout the court process for various reasons.
2. It is well established that a significant delay between the laying of charges and sentence can be a powerful mitigating factor, where that delay occurs through no fault of the accused. There are two limbs to delay as a mitigatory factor. The first limb concerns unfairness to the offender in the sense that the relevant charge has been hanging over the offender's head and causing him or her anxiety. The second limb concerns whether, during the period of delay, the offender has made progress towards rehabilitation and whether there are good prospects of rehabilitation. This second limb has two aspects - first, whether the offender has accepted responsibility for the offending, acknowledged its wrongfulness and expressed remorse; and second, whether the offender has taken steps to reform, including by seeking counselling or other professional assistance, refraining from committing further offences and being a valuable member of the community. Both aspects of rehabilitation must be demonstrated in order for the court to give full weight to that limb.[7]
3. Whilst the delay in this case between charge and sentence is not extensive, I do accept that you have had the anxiety and stress in respect of the potential sentence which you may be facing, hanging over your head for an extended period of time. It is apparent from the material before me, including the references from your family members, and the contents of the referral for a mental health care plan from your GP Dr Ugwu, that your mental health has deteriorated over time as a result of the stress which you have faced in respect of these proceedings and your impending sentence.
4. You have also demonstrated to some degree your capacity for rehabilitation, in the period since the search warrant was executed, largely through your ability to remain offence-free for the past almost three years. In that time, you have also returned to living with your grandparents, for whom you provide significant support; have undergone detoxification and have ceased your drug use (as evidenced by the drug urine screen tendered on the plea); have taken steps to reduce your gambling; have engaged with your GP and obtained a mental health care plan; have recently commenced counselling as per the letter of Adrian Barker dated 25 February 2025, and have been fully engaged as a father to your two children.
5. Additionally, you continue to enjoy the support of your siblings, your mother and your grandparents as reflected in their respective references. It is clear that upon release from any term of imprisonment which you are required to serve, you will have access to safe and stable accommodation, supportive family members, and employment opportunities.
6. I accept that each of these matters, together with Mr Campbell's opinion as to your prospects of rehabilitation, are relevant matters to take into account, when assessing both the effect of the delay and your prospects of rehabilitation. I am of the view, taking into account all of the material before me, that you have demonstrated a capacity for rehabilitation over the past almost three years, you had accepted responsibility and shown remorse for your offending, and have positive prospects of rehabilitation, provided that you commit to treatment for your mental health, substance abuse, and gambling issues. Accordingly, I do consider delay to be a significant mitigatory factor in your case.
7. Additionally, given the passage of time, your progress in rehabilitation, your prior relatively good character, and the impact that having these charges hanging over your head has had upon you, I am of the view that the weight to be placed on specific deterrence and community protection as sentencing purposes is lessened in your case.

1. Turning now to the sentencing submissions made by counsel. Mr Keks, on behalf of the prosecution, submitted that general deterrence, deterring others, specific deterrence, deterring you, denunciation and just punishment are all important sentencing purposes in this case. He further submitted that taking into account the inherent seriousness of the offences, the gravity of your offending and the significance of general deterrence for this sentence, a term of imprisonment with a non-parole period is required.
2. Mr De Witt, on your behalf, conceded that in light of the gravity of your offending, a term of imprisonment is the only disposition which appropriately realises the sentencing objectives in this case. However, he submitted that given the mitigating factors in this case, a term of imprisonment with release on a recognisance release order would be an appropriate disposition. He noted that the imposition of such an order would enable the court to impose conditions mandating therapeutic engagement to assist you, which would be coupled with certainty as to release date, (ensuring that you do get the therapeutic support you need).
3. In determining an appropriate sentence in this case, I do have a duty to regard what has been done in comparable cases throughout the Commonwealth. To this end, both prosecuting counsel and your counsel provided a short table/list of cases, where offenders have been sentenced for offences against s134.2 of the Criminal Code (or similar), in circumstances where pleas of guilty had been entered. The sentences in the cases to which I was referred by the prosecution, were all terms of imprisonment, ranging between three years with release on a recognisance release order after serving 18 months, and six years three months, with a non-parole period of four years. [8] The sentences to which I was referred by your counsel were all terms of imprisonment, ranging between 20 months with release on a recognisance release order after serving 177 days, and two years and nine months with release on a recognisance release order after serving one year and three months. Both counsel rightly conceded, however, that none of the cases referred to in that table are on all fours with the present case, either in terms of the factual scenario or the circumstances of the accused.
4. Despite this, I have taken each of the cases referred to into account, as they do provide guidance as to the application of the relevant sentencing principles in this area and can also be used as yardsticks that may be able to illustrate, although not define, the possible range of sentences available. Ultimately, however, I have sentenced you on the basis of applying the principles to the specific facts of you and your case.

1. In sentencing you, I must impose a sentence of a severity appropriate in all of the circumstances of the offence, taking into account such of the matters listed in s16(A(2) of the Crimes Act 1914 (Cth) as are known. Further, I must have regard to s17A of the Crimes Act 1914 (Cth) which provides that a court shall not pass a sentence of imprisonment on any person for a federal offence, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all of the circumstances of the case. s20AB of the Act leaves open the option of imposing certain state-based sentencing alternatives, such as a community corrections order, when sentencing a federal offender.
2. I have considered all of the matters before me in this case, including the mitigating factors and the principle of totality. Despite the mitigating factors present in this case, any sentence which I impose, must still reflect the gravity of the offending committed by you, the need to deter others from offending in the manner you have, and must also be an adequate punishment for the offences committed. I have had regard to whether any other sentencing disposition, aside from imprisonment, would adequately address each of the sentencing principles and purposes which arise here. However, ultimately, when all of the relevant sentencing principles and purposes are considered, I am not satisfied that any sentence other than a term of imprisonment, would be an appropriate sentencing option in this case. I am however satisfied that given the substantial mitigating factors in this case, including, but not limited to, your very limited prior criminal history, your plea of guilty, the impact of delay, the combined impact of your childhood trauma and mental health issues on your moral culpability and the increased burden of imprisonment, and your concerns about your grandparents and children, it is appropriate for you to be released upon a recognisance release order after serving a proportion of your term of imprisonment. I note that whilst it is important that you continue to receive assistance in respect of your mental health, drug and gambling issues on release from custody, you have shown that you have the capacity to address these issues of your own volition. Accordingly, I do not intend to impose any additional conditions upon that release order, aside from a requirement that you be of good behaviour.

1. Mr Merrett, can you please stand up.
2. On Charge 1, dishonestly obtain a financial advantage by deception from a Commonwealth entity, you are convicted and sentenced to a term of imprisonment of two years and six months.
3. On Charge 2, attempt to dishonestly obtain a financial advantage by deception from a Commonwealth entity, you are convicted and sentenced to a term of imprisonment of two years.
4. On charge 3, failing to comply with s3LA order, you are convicted and sentenced to a term of imprisonment of four months.
5. I direct that the sentence on Charge 1 is to commence today. I further direct that the sentence on Charge 2 is to commence 10 months after the commencement of the sentence on Charge 1, and the sentence on Charge 3 is to commence one year and nine months after the commencement of the sentence on Charge 2.
6. That makes a total effective term of imprisonment of two years and 11 months.
7. Pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released after serving a term of imprisonment of one year and eight months, upon you entering into a recognisance in the sum of $1000 to be of good behaviour for a period of two years.
8. I note there is no pre-sentence detention to be declared in this case.
9. So Mr Merrett, the purpose and effect of the recognisance release order is basically to grant you freedom after you serve that first one year and eight months of your total term of imprisonment. That freedom is conditional on you remaining of good behaviour. So that is not committing any further offences whilst you are on that release. If you commit a further offence during the two years that you are on that recognisance release order, then unless you can show a reasonable excuse for the further offending, you will be dealt with for that breach. Some of the potential outcomes, if you do breach the order, are that you may have to pay the $1000 I have spoken about. More importantly, you may have to serve the remaining one year and three months of the term of imprisonment which I have imposed.
10. OFFENDER: Yes.
11. HER HONOUR: All right.
12. OFFENDER: Yes, Your Honour.
13. HER HONOUR: All right. I also inform you that you, or an authorised person, may apply to the court to vary or discharge the recognisance in accordance with s20AA of the Crimes Act 1914 (Cth).

1. Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and then been convicted of them, you would have been sentenced to a total effective sentence of four years and three months with a non-parole period of three years. So your plea of guilty has saved you a considerable amount of gaol time.

1. Pursuant to s21B(3) of the Crimes Act 1914 (Cth), I order that you pay $392,917.74 to the Commonwealth of Australia in favour of the Australian Taxation Office. All right now I am going to ask my associate to first of all give me that order and I will sign it, but then Mr De Witt if you could go down with my associate, so that Mr Merrett can sign the order?
2. MR DE WITT: Yes, Your Honour.
3. HER HONOUR: All right thank you. Thank you, Mr Merrett.

[1] The maximum penalty applicable to the offence to which the section 3LA warrant relates in this matter is 5 years' imprisonment or a fine of $98,000, or both under subsection 3LA(6) of the Crimes Act 1914 (Cth). For serious offences or serious terrorism offences, the maximum penalty is 10 years or a fine of 600 penalty units, or both.

[2] See, e.g., Totaan v R [2022] NSWCCA 75.

[3] See, e.g., psychological report of Mr Austin Campbell, dated 21 January 2025, [29]-[30].

[4] Bugmy at pp 494-495. See also Newton (a pseudonym) v The King [2023] VSCA 22 at [36]- [46].

[5] See, e.g., Newton (a pseudonym) v The King [2023] VSCA 22, [37].

[7] See, e.g., Tones v R [2017] VSCA 118, [42].

[8] Cases referred to by the prosecution were as follows: Phillips v DPP (Cth) [2024] VSCA 132; Shmuel v R [2023] VSCA 135; Noble v R [2018] NSWCCA 253; Edwards v R [2013] NSWCCA 54; and McCall v R [2011] NSWCCA 34