Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.
However, unlike your annoying sibling, we don’t mind sharing.
Appeal to vacate plea, there was an arguable case and the sentence imposed was manifestly excessive.
Facts: A 30-year-old man interfered with a five-year-old at through a single incident resulting in four counts of rape and one of indent treatment of a child. The 93A statement was somewhat ambiguous, DNA evidence supported the allegations. The defendant (due to alcohol) could not remember the incident. On a plea of guilty the appellant was sentenced to 9 years with parole eligibility after serving three years. Three grounds of appeal were advanced:
- The plea should be vacated; The appellant contended he did not sign instructions or the schedule of facts. Further, not all the facts and evidence were read out to him. The solicitor at first instance could not locate the file. However, in the affidavit (new evidence allowed at the appeal) it was clear the nature and evidence of the charges were within the defendant’s knowledge.
- The facts did not support the plea; The 93A was at times ambiguous, the investigating officer asked leading questions of the complainant and the DNA evidence were capable of making out the charges. However, counsel at appeal contended there where alternate theories as to how the DNA evidence came to be located on the complainant.
- The sentence was manifestly excessive: The initial sentence of nine years with parole eligibility after serving three was excessive as the appellant had no relevant history, a psychological report was tendered and the appellant had drug and alcohol abuse issues.
Finding: The plea had been made validly and it was not in the interest of justice to vacate it. As the court found the plea was to be voluntarily and cognisant of the nature of the offences there is no need to consider the second ground. The sentence was well within the sentencing discretion of the court.
Notes for practice:
- Always, always have facts and instructions not only signed but readily able to be retrieved.
- Serious sex offending against a minor sentencing case.
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