Case Notes - The More You Know, The Better The Result For the Client

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes. However, unlike your annoying sibling, we don’t mind sharing.

 

Facts: This case concerned a sentence appeal by the Queensland Attorney-General after the respondent pleaded guilty to Assault occasioning bodily harm while armed (maximum penalty 10 years); and deprivation of liberty (maximum penalty 3 years).

The respondent, aged 43 at the time, approached an 18-year-old female stranger walking home in the early morning. He placed a rope around her neck, dragged her into his car, and momentarily detained her before she managed to escape. He was arrested days later and spent 413 days in pre-sentence custody.

On 11 December 2024, he was sentenced in the District Court to 2½ years’ imprisonment, with immediate parole release, based on time already served. The Attorney-General appealed on the basis that the sentence was manifestly inadequate.

Principles on Crown Sentence Appeals:
Crown appeals are exceptional and are governed by strict principles. The burden lies on the Crown to establish:

1. Demonstrable error in the exercise of the sentencing discretion, typically where the sentence is so manifestly inadequate that error should be inferred even though no specific error can be identified; and
2. That it is an appropriate case for appellate intervention, requiring the Court to exercise a residual discretion (see CMB v Attorney-General (NSW) (2015) 256 CLR 346).

Manifest inadequacy is a high threshold, it must be shown that the sentence is so far outside the permissible range that error should be inferred, even if no specific legal or factual mistake is identified (Hili v The Queen (2010) 242 CLR 520). This discretion is sparingly exercised, with Crown appeals aiming to guide sentencing practice rather than simply rectify individual outcomes (R v Schulz; Ex parte DPP (Cth) [2023] QCA 150).

Sentencing Considerations:
The sentencing judge carefully weighed the following relevant factors in accordance with s 9(3) of the Penalties and Sentences Act 1992 (Qld):

• Nature and seriousness of the offending: The judge acknowledged the “terrifying” nature of the offending, involving a street abduction in the early hours of the morning.
• Impact on the victim: Serious emotional and financial consequences for the complainant and her family were detailed in the victim impact statements.
• Absence of intent to commit further offences: The prosecution had not alleged intent, and charges did not include more serious alternatives such as kidnapping or disabling to commit an indictable offence.
• Early plea of guilty: The plea was timely and facilitated the administration of justice.
• Pre-sentence custody: The respondent had already served over 13 months, which significantly mitigated further punishment.
• Personal circumstances: The respondent had limited criminal history and was terminally ill with a life expectancy of less than a year. His illness limited the utility of a longer sentence and increased the relevance of supervised release.

The Court found no error in the sentencing judge’s reasoning and rejected the Crown’s submission that the health of the respondent was given undue weight. The Court was critical of the Crown’s reliance on kidnapping cases (R v Von Pearson [2006] QCA 292), which involved a higher maximum penalty and required proof of intent. The relevant comparators for sentencing were offences of deprivation of liberty and assault occasioning bodily harm, not kidnapping.

The Court also distinguished R v George [2013] QCA 302, the only cited case with similar charges, where the offender had inflicted more serious injuries and had a lengthy violent history. The sentence in McDonald was found to be within range.

Conclusion: The sentence was not manifestly inadequate, and no error of principle was demonstrated. As a result, the appeal was dismissed and the original sentence upheld.

Notes for Practice:

• Crown appeals must clear a high bar—they are not merely vehicles for seeking a harsher penalty. Manifest inadequacy must be truly “outside the range.”
• Sentencing must reflect the charges laid, not the underlying conduct. Prosecutorial choices are critical.
• Deprivation of liberty and AOBH are distinct from kidnapping and should not be conflated during submissions or appeals.
• Health and custodial factors remain influential, particularly where rehabilitation or deterrence serve limited utility.

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation. If you need legal assistance. See a lawyer. We are lawyers, you can absolutely call us on 07 5414 4209. Criminal law is what we do and a reason we publish these notes… You might not read it, but we will rely on it if you try and sue us (smug face).

Link to full case 

Link to PDF of case note