Case Note – Limited mitigation after a trial – 400 grams of cocaine = 9 years to do 5 1/2 years

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

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R v Roberts [2020] QCA 129

Facts: The applicant was apprehended with a large amount of cocaine returning from Buenos Aires.  After a trial, the applicant was convicted of importing a marketable quantity of cocaine, 400g with the street value of over half a million dollars. The applicant gave a version that she was to bring the substance back for approximately $10,000 and an upgrade from her economy flight. Her fingerprints were located on the packaging and materials such as fingerprints on the sticky side of the tape in which the bags were wrapped.

She was sentenced to 9 years imprisonment with a non-parole period of five years and six months. The appeal was on the grounds of it being manifestly excessive, and the sentencing judge erred in sentencing the applicant on the basis that she was more than a courier and on the basis she proceeded to trial in the face of a strong Crown case.

The applicant was 55 at the time of the offending and 57 at sentencing, letter of reference was tendered at the sentence. The court noted, “Because the applicant denied guilt and offered no explanations for her actions, after she was found guilty her counsel was handicapped in his ability to make submissions in mitigation”. Other than a minimal and the relevant criminal history, counsel had been left with little to mitigate the sentence with.

The judge was correct in not finding the applicant was “more than a courier” but also not prepared to find the applicant was a “mere courier”.

Finding: Appeal dismissed. The sentence was within sound sentencing discretion. It was at the higher end, but not beyond the bounds of a proper exercise of discretion.

Notes for practice:

  • The Court reviewed comparable cases.
  • After a trial, personal deterrence is a live factor. “Contrition is some evidence of insight and this insight into wrongfulness of a crime implies a reduced likelihood of offending.”

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Case Note – Unaddressed considerations at sentencing

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

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R v JAB [2020] QCA 124

Facts: Youth offender was sentenced on a plea of guilty for attempted robbery and unlawful use. The youth had a relevant criminal history and poor breaches of other orders. For the attempted robbery he received a period of detention with a conditional release order and 2 years’ probation for the unlawful use. The prosecutor noted a conviction will have an impact on obtaining employment. Defence accepted the conditional release and other orders but did not make submissions on recording a conviction. The sentencing court recorded a conviction on the attempted robbery.

The appeal was on the basis the sentencing court did not engage with counsel about recording a conviction, a conviction was manifestly excessive.

A principle of natural justice is a person is entitled to adequate notice and opportunity to be heard before an order is made against a person was stated in Re Hamilton; Re Forrest [1981] AC 1038 at 1045, Queensland Courts have adopted this as it applied to; license disqualification, later than statutory parole release dates, serious violent offender declarations and recording of a conviction where reasons are not given and submissions are not invited before recording a conviction.

However, a sentencing court is not required to set out each alternative sentence to a defendant, counsel is expected to know the relevant law and make relevant submissions. “Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.” Per Atkinson J in R v Robertson R v Kitson [2008] QCA 86.

Finding: Appeal on sentence successful, convictions not recorded. The considerations in the Youth Justice Act and the concession by the Prosecutor resulted in the sentencing Jude having to raise the prospect of recording a conviction.

Notes for practice:

  • Consider what has not been said and addressed, do you need to add anything before saying “no further submissions”?
  • By advancing the submission you might be saving the client a costly appeal process by at least engaging the court in the submission at first instance.

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Case Note – 9+ years for trafficking over a short period of time.

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.

R v Fischer [2020] QCA 66

Appeal of sentence for high level trafficking over a short period of time, where 23 months as time served leading up to sentence was not declarable due to existing orders.

Facts: Trafficking over a period of about 9 months involving kilogram and half-kilogram amounts of methylamphetamine, at times MDMA in large volume (5,000 tablets). The appellant had a client base of about 60 customers selling firearms when business was slow.

The appellant was on other orders at the time of offending, time in pre-sentence custody was not declarable. The appellant was sentenced to 9 years and 8 months for the trafficking offence with a serious drug offence declaration being made resulting in parole eligibility after 10 years.

Finding:  Sentence was well within range; personal deterrence was a live factor as offending occurred whilst on supervised orders.

Notes for practice:

  • Examine the gravity of the trafficking and the duration.  
  • Sentencing case for high volume trafficking over a short period of time.

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Case Note – No evidence of remorse does not amount to a lack of remorse, it remains a neutral consideration.

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.

R v Anthony [2020] QCA 79

The appellant was sentenced after a plea of guilty to one charge of arson, a sentence of two years imprisonment, suspended after 8 months for an operational period of two years was imposed. The appeal was by the defendant on the basis the sentence was manifestly excessive.

Facts: The offence was committed while the defendant was 21 years old. Two other offenders organised for a vehicle valued at $7,500 to be destroyed by fire and to collect the insurance. There was no evidence the appellant was to be paid for the efforts.

The offending was captured by CCTV, admissions to police were made. The co-accused with a significant criminal history received 2 years released on parole after 8 months.

A significant number of references were tendered showing the offending was outside the character of the defendant.

The points of appeal the court considered are:

  1. Parity was not reflected in the sentence. The sentencing court started with the sentence imposed for the principal offender and increased the sentence for the appellant by imposing a period of actual custody to achieve party. The court of appeal found this to be an error. The co-accused was an older man with significant criminal history and time in custody. There are no issues of parity as the position of the two offenders are totally different.
  • The court erred in finding there was no evidence of remorse. The sentencing court found there was no remorse though a lack of evidence showing it. The appellant argues that though the letters of reference (accepted by the prosecution) remorse was shown.

Finding: The sentence was adjusted to allow the appellant to be released on parole for two years on the date of judgment.

Notes for practice:

  • Arson case for a young offender with no criminal history.
  • A lack or remorse cannot be inferred though silence by the defendant, it merely leaves the issue neutral.
  • “The principle of parity is only relevant where a sentence… might be such to engender a justifiable sense of grievance in the offender being sentenced” per McMurdo J in R v Dang [2018] QCA 331 citing Majeed v The Queen [2013] VSCA 40

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Case Note – Remorse and admissions mitigate the sentence

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

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R v Ruiz; Ex parte Attorney-General (Qld) [2020] QCA 72 

Facts: The defendant (respondent for the appeal) was sentenced to 3 years imprisonment suspended after serving 12 months for an operational period of 3 years for one count of rape and 18 months imprisonment for two counts of indecent treatment of a child. The DPP appealed on the basis the sentence was manifestly inadequate. Submissions were made that upon release from prison the respondent should either be on a period of probation or parole to be supervised within the community.

The respondent had no criminal history, exceptional employment prospects and strong family support. Full admissions were made to the police on the rape count and indecent treatment charge, additional disclosures resulted in the second charge of indecent treatment.

The respondent argued even though the period imprisonment was suspended after serving 12 months for an operational period of three years, due to the mandatory reporting requirements the respondent would remain supervised in the community.

The appeal court reviewed comparable cases, noted the respondent had demonstrated genuine remorse and facilitated justice through cooperation with the police (and disclosed additional offences).

Finding: Appeal dismissed, sentence reflected mitigating factors and seriousness of offending.

Notes for practice:

  • Use of remorse to mitigate penalty.
  • Additional charges disclosed to police through admissions.

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Case Note – Couriering Drugs 6 years imprisonment

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

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R v Peirano [QCA] 100

Facts: An appeal against the sentence for possessing methylamphetamine.

The appellant knowingly acted as a “drug runner” between Brisbane and Mackay knowing it was for commercial purposes. The appellant had no criminal history and had been treated for depression and anxiety for some time.

A sentence of six years imprisonment with parole eligibility after serving 20 months was imposed. The appellant appealed on the basis of the sentence being manifestly excessive. The appellant was 32 years old when the offending occurred and 33 at the sentence.

A total of 186.189 g of pure methylamphetamine and a total weight of 276 g was located in a search. The appellant was connected with other offenders who were charged with trafficking, he was sentenced on the basis that he was moving the drugs from different locations at the request of the co-accused.

The Crown was unable to state the extent to which the appellant had benefited but had previously been paid $2500 by a co-accused.

Finding: The court affirmed the sentence of six years with parole eligibility roughly 4 months under the one third mark as being an appropriate sentence in all the circumstances.  

Notes for practice:

  • QCA sentencing for courier possession connected to trafficking absent the trafficking charge.

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Case Note – Similar Fact Evidence & Jury Directions

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

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R v Newman [2020] QCA 92

Appeal after a conviction of sexual assault, four grounds were advanced only two were considered

  • Similar fact evidence
  • Directions about the use of evidence from a witness

Facts: The appellant offered the complainant a lift home from the valley late at night. The parties were not known to each other, the complainant had been drinking heavily and thought he was flagging down an Uber.

The assault was particularised as touching of the complainant in the area of his penis without consent.

The appellant gave evidence of a sexualised discussion but did not accept there was any touching.

The appellant gave evidence at trial that he would drive around late at night roughly four or six times a month and would occasionally give drunk people lifts home.

The prosecution led evidence from two other witnesses where the appellant had picked up other men, driven to a destination and engaged in sexualised conversation during the travel. Neither of those witnesses were inappropriately touched on those occasions.

The Crown relied on these witnesses for similar fact evidence. The court found the evidence could be led. However, the routine directions given regarding similar fact evidence were insufficient to overcome impermissible use of the evidence by the other witnesses.

Finding: The court ordered a retrial of the matters, noting if the crown is to rely on what amounts to bad character of the appellant, the bad character is irrelevant to the determination of the jury of the appellant guilty for the offence charged. Further warnings ought to be given against general propensity on the basis of bad character.

Notes for practice:

  • Court outlines use of similar fact evidence.
  • Consider how far the propensity evidence takes the crown.
  • Where propensity evidence is led, consider additional jury directions above standard directions.

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Case Note – 100 grams of Meth and COVID considerations

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.

R v Vakatini [2020] QSC 107

Facts: Sentencing remarks for possession of methylamphetamine with a circumstances of aggravation.

The defendant was a drug courier intercepted carrying 99.432 grams of pure methylamphetamine. Upon being released on bail, the defendant complied with his bail conditions. The defendant had no criminal record being 26 at the time of the offence and 27 sentencing. As a consequence of being apprehended, the defendant had to sell his vehicle to repay drug debts from the loss of the illicit substances. A psychological report and a letter from the defendant outlining remorse and regret was tendered by the defence.

At a time where the District Courts are not sentencing people looking at actual custody when they are currently in the community, the defendant chose to push the matter and start his sentence to have it over and done with.

The sentencing judge canvassed the current stage three restrictions in correctional facilities as “making jail an even more bleak and lonely experience than normal, at least for some time, for many prisoners” noted stage 4 precautions are a possibility but are as yet only prospective.

In imposing the period of custody the Judge stated “it is just that a greater than normal moderation of the actual jail time component of the sentence ought occur” with reference to the COVID-19 implications and reduced the parole release date from 12 months to nine months and then a further reduction down to six and a half months.

Finding: Sentenced to three years, parole release after six and half months.

Notes for practice:

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Case Note – Judge Alone Trial for GBH: Not Guilty

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

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R v Sandy [2020] QDC 63

Facts: Judge alone trial for a charge of Grievous Bodily Harm at the Wacol Correctional Centre. The trial was mostly based on the CCTV of the incident as the complainant was an adverse witness who chose not to answer questions and would not affirm the contents of the statement given to police by himself after the incident. The Judge surmised the footage as:

The complainant purposefully approached the defendant, following the defendant nearby. The defendant attempts to walk away from the complainant, the complaint continues to follow the defendant and blocks the defendant at each turn. Immediately before the complainant, it struck, the complainant appears to have a clenched fist. The defendant punched the complainant once knocking the complainant to the ground. The injury was sustained by the complainants head hitting the ground.

The defendant did not give evidence. The defence advanced defence of self-defence against a provoked attack.

Finding: The Judge found the Crown had not excluded the defences beyond a reasonable doubt.

Notes for practice: The court listed the matters the Crown must exclude once the defence is raised for the charge to be successful:

  • The defendant was not unlawfully assaulted by the complainant
  • The defendant provoked the attack
  • The force used by the defendant was disproportionate
  • The force used was likely to cause grievous bodily harm or death
  • Self-defence against a provoked attack

 

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