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It’s All Important, But It’s Not All Relevant.

In the R v Smith appeal, the appellant contested the sentence imposed and several facts which formed part of the agreed factual basis she was sentenced on. Ultimately, the appeal was dismissed, and the head sentence of 3 years suspended after 9 months for 5 years remained for the charges of Fraud and Obstruction of justice.

For sentences/pleas of guilty in the Magistrates Court, the District Court, and the Supreme Court an “Agreed Statement of Facts” is used by the parties to identify the factual basis the defendant is being sentenced on. This avoids any surprises by either side and assists the court to be clear about what happened and what the defendant is being sentenced for.

In the Smith appeal the agreed schedule of facts included that when posting the car for sale, Ms Smith did not mention that the car was under a lease. After she had been sentenced, Ms Smith sought challenge some of the agreed facts, saying for example that she did not know she had to advise the car was under a lease.

These challenges however did not impact her case. Why?

When reviewing charges, Criminal lawyers are evaluating the facts and evidence against the elements of the offence our client has been charged with. In this case the facts Ms Smith sought to challenge facts that did not impact the elements of the offence, or her culpability, in any material way.

A break down and example of the elements of fraud can be found here.

This appeal related to the charge or fraud. And while we do not know what sub-section of fraud in the Criminal Code Ms Smith was charged and sentenced under, we can make some assumptions for the point of demonstrating how “elements” of offences work.

We can break it down like this, the elements of fraud are:

  1. A person:
  2. Obtains property from any person:
  3. Dishonestly:

 

Applying the facts to the elements we get the below:

  1. A person: Ms Smith.
  2. Obtains property from any person: The money Ms Smith obtained from selling the car.
  3. Dishonestly: Selling a car that she knew was leased without the agreement of the lessor.  Arguably the funds should have been paid to the financier or transferred to the financier (depending on the contract) not used to pay gym memberships, school fees and other living expenses.

Bearing in mind the agreed facts, Ms Smith’s challenge to the facts, even if accepted, would not change the elements of the charge. In relation to advertising without stating the car was leased, which Ms Smith said she did not believe was a requirement, Justice Morrison said “That is of no moment in light of the admitted fraud, which was to sell the car without seeking or obtaining the lessor’s consent, and without paying the lessor”.

For the client, sometimes everything feels relevant and important. While it might feel important, sometimes it is just not relevant and the fact the client wants to argue over might be pointless.

It falls on the solicitor to explain this to the client. Continued push back on a schedule of facts may result in a contested fact sentence or losing the ability to negotiate further. Taking this approach may run up legal costs needlessly, especially where the contested fact does not have a sufficiently relevant connection to the elements of the offence.

For the lawyers, it is not just about getting the facts signed to cover our risk it is also about making sure the client understands what is happening and why.

Case Note – Sentencing and Mental Health Factors

Murray Torcetti Lawyers

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

Case Note QLD –  R v Newman (a pseudonym) [2021] QCA 13

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.

Facts: A 14-year-old sexually assaulted a six-year-old girl, full details of the assault are in the case, sufficient to say it was particularly abhorrent.

The presiding judge sentenced the appellant to 3 ½ year detention to serve 60%. The appeal was on the basis the youth should only serve 50% of the period and detention. The applicant argued no weight was placed on the mental health and other mitigating factors of the applicant.

By way of personal background, the defendant had very low intellectual capacity, was on the autism spectrum, suffered from ADHD and Oppositional Defiance Disorder and had an exceptionally disadvantaged background. The applicant had and a history of similar types of offending and violent behaviour. A psychological report concluded he had very little by the way of empathy, and “presents a probable high risk of sexual reoffending… Future risk of sexual recidivism has been assessed as high

Justice Sofronoff reiterated the principle in R v Neumann; Ex parte Attorney-General (Qld) [2007], 1 Qd R 53; [2005] QCA 362, where mental health issues can both mitigate and aggravate a sentence.

  1. Where the offence has such as connection to the disorder, general deterrence is insignificant reducing the sentence;
  2. The connection between the offence and the disorder it reduces the moral responsibility for the offence; and
  3. The relationship between the disorder and the disability might be such that the offender is likely to re-offend.

Where the 3rd point is a live consideration, it operates to remove the disability as a mitigating factor (but not increasing the penalty).

Finding: The appeal was not successful.

Notes for practice:

Where mental health factors have been identified, consider how the court could view the impact it should have on sentence:

  • General deterrence should not be a factor;
  • Moral culpability is reduced; or
  • Is the defendant likely to re-offend removing the factor as a mitigating force.

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Case Note – An application to remove an absolute license disqualification.

Murray Torcetti Lawyers

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

Case Note QLD – Murray v Commissioner of Police [2021] QDC 48

 

Seeking the removal of an absolute driver's license disqualification.

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.

Facts:

On Christmas Day the applicant with a blood alcohol reading of .167 drove after being warned by friends not to. He lost control of the vehicle, mounted the footpath, and struck a child who died as a result.

The applicant was charged with dangerous operation causing death while affected by alcohol. A sentence of 7 years with parole eligibility after 2 was imposed. After serving 2 years and 2 months the applicant was released on parole, after a year of being on parole, he made an application for the absolute disqualification to be removed.

At the time of the initial sentence, he had strong employment as a carpenter, while on parole he secured employment as a car detailer. His partner and employer had been assisting with him attending employment, however, it was causing a strain on the relationships. Affidavit materials were supplied attesting to the character of the applicant. The applicant had undertaken various courses, and the hardships suffered by the applicant not being able to hold a licence had been addressed in the materials seeking the removal of the disqualification.

After 2 years, an applicant can seek a longer or absolute license disqualification be removed s 131(10) Transport Operations (Road Use Management) Act 1995 (“TORUM”)

The deciding judge quoted Honour Judge Farr SC in Slivo v Commissioner of Police [2016] QDC 46 “a driver licence disqualification can hardly be considered a punishment for a prisoner during the period of incarceration.” Other case law about the balancing of the community expectations and the limiting nature of long and absolute disqualifications were also reviewed.

Finding: Ultimately the Court found there had not been a sufficient loss of license to weigh in the favour of the court granting the application.

Notes for practice:

  • Case law about balancing of factors for and against the removal of a disqualification.
  • The loss of a license while in custody may have limited weight.

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…

 

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How to make your point in a short period of time in a busy court

Recently I took part in an online lecture by a family court judge who is also a trainer at the advocacy Institute of Australia. The purpose of the course was to offer insights for advocates in how to affectively represent a client in a busy court.

 

The reality of a criminal lawyer’s work is much of the day-to-day court time is spent in a busy Magistrates Court where the case load is heavy for both the Magistrate and the Prosecution and the lawyer having armfuls of files to get through. It is always painful to see lawyers speaking as if they are being paid by the word. My clients are aware my role is to make the best forensic decision about the materials and arguments. When to push for the result we want, and when to abandon extra arguments and materials that do not assist.

 

Where the facts, charges, and the law lean towards a fine with conviction as the most likely and appropriate result, I am not going to tell the court about every small details of the client’s childhood but instead focus on reducing the range of the fine based on relevant facts and my client’s capacity to pay. In addition to saving the court time, it is also more likely the Magistrate will listen to and understand my argument, which best benefits my client. There is no point in talking at length for the pleasure of hearing my own voice.

 

At the advocacy lecture it was suggested that at the start of your submissions you should tell the court what you are seeking and then outline the reasons why. This is “Sign Posting” in the context of mooting, and it applies to advocacy in practice. It looks like this on paper:

 

Argument: Fine with no conviction recorded:

  1. Early plea
  2. Limited capacity to pay a fine
  3. Minor facts of offending
  4. Lack of criminal history

When you are on your feet it sounds like this:

 

I am seeking a modest fine with no conviction recorded, for four reasons. 1st, the client is entering a plea at the first opportunity; 2nd my client works part time and only makes $500 per week net, 3rd the offending is not very serious for these types of offences and 4th my client has no criminal history. Does your honour require any further submissions?”

 

The last sentence is an invitation to the court to indicate if they require more information from you, or that they should engage in a discussion about the range if they disagree. This would only be appropriate in some situations; it would be crazy (and possibly negligent) to keep the arguments so short in many cases. Much of what lawyers do when advocating for their client is knowing what information to give the court and how to convey it.

 

Personally, I like to prepare for every plea as if I am going to have to argue hard for what I am after. It is better to be prepared and not need the arguments then to need them and not have them. I might have 3 or 4 reference letters at the ready and a number of other prepared arguments to “rock and roll” if I need to, but depending on the situation I may only use the top two or three points to get the result I am after in a busy courtroom.

 

And remember, Magistrates are time poor.

The Rolodex of arguments – Not recording a conviction.

One of the many things criminal lawyers do is spend time thinking about the best way pitch reasons for what they are asking the court to do when planning for a plea of guilty. In some circumstances the real issue for our clients is if a conviction will be recorded or not.

Using the reasoning of judges in other cases is one way to "build a bank" or Rolodex of arguments that might be used to help clients in the future.

In Kemp v The Commissioner of Police [2021] QDC 30 where a young woman was convicted of a $15 fuel drive off, on appeal the District Court found recording of a conviction was manifestly excessive. Case note can be found here.

Some of the turns of phrases used Loury QC DCJ of the District Court when deciding it was excessive to record a conviction were:

  • It has been accepted that there is at least some social prejudice which attaches to the recording of a conviction.

 

  • That prejudice may result in the offender being continually punished in the future in a way not commensurate with the punishment which is just for the offending. It might also stand in the way of rehabilitation, particularly by making it difficult for an offender to obtain employment (See R v Briese; ex parte Attorney-General (1988) 1Qd R 487.)

 

Section 12 of the Penalties and Sentences Act 1992 requires only that the Court consider the impact that the recording of a conviction will have on the offender’s chances of finding employment.

Into the bank of nifty turns of phrases goes something to the effect of:

  • Recording of a conviction would stand in the way of rehabilitation by hindering their ability to obtain employment”

 

  • “the continuing social prejudice of a conviction is not proportionate to the charges”.

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 could see us! Call our office on 07 5414 4209.

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Like Sizzler for Pleading Guilty – Sentencing Submission Check-List

The “have you thought about this?’ checklist for sentencing submissions in the Magistrates Court.

Once it has been established that a plea of guilty is the appropriate course of action, lawyers then next consider what are the arguments or reasons that can be offered to the court to support the lowest possible penalty to satisfy the balancing sentencing considerations.

I often explain to my clients to think of it as a “buffet” of sentencing options. Every time I have a plea of guilty, I crack out this list and pull out the different considerations and arguments that I think would be most appropriate for my client.

There are other factors not on this list, it is not supposed to be an exhaustive “tick and flick” but an exercise to limber up those mental muscles and force a more considered approach to the task.

My role is then to work with the client to gather the materials that I cannot do for them (such as organising references or a letter of remorse). For my sentences, I like to have as many different arguments as I can up my sleeve and use as few as I need to do to achieve what I want.

When you are standing at the bar table pushing your case, it is helpful to have a document to work from to ensure you have put everything before the court.

After you have sat down and the Magistrate is considering the sentence, it deeply sucks to have to stand back up and say “one more thing”, or worse interrupt the Magistrate when they have started sentencing!

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.

You might not read it, but we will rely on it if you try and sue us (smug face).

Case Note – R v SDL [2021] QCA 14

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.

Facts: In a small rural town, the defendant was found guilty of one count of maintaining a sexual relationship after a three-day trial. The appellant recognised the names of 11 people in the jury pool, the judge declined to excuse those people leaving it to the Prosecution to challenge the jurors, of the 11, 10 were challenged with the 11th being empanelled as “Juror 4”.

A pre-recording of the evidence was played to the jury. After a break it was raised with the judge the appellant recognised Juror 4 as “as the brother of an associate of the appellant.” The contact was limited to a “”G’day” 7 years prior. The juror was taken into court in the absence of the remaining jurors, when asked about possible contact with the appellant, Juror 4 could not recall meeting the appellant.

The judge only discharged the single juror for potential perceived bias and proceeded with 11 jurors. Both defence and prosecution sought a discharge of the full jury. Relying on the test in Wu v The Queen (1999) 199 CLR 99, the judge noted the delay in the matter reaching trial and costs attached to starting with a new jury.

(There was a further ground of admissibility of preliminary complaint evidence that was unsuccessful not addressed in this case note).

Finding: For apprehended bias to exist, there needs to be a basis. There were no grounds for the judge to discharge juror number 4 pursuant to s 56(1)(a) of the Jury Act 1995.There was a miscarriage of justice in denial to the appellant of the right to be tried by a jury of 12 persons.

When looking at the thin connection between the appellant and Juror 4, Justice Mullins applied the test of “apprehended bias” in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]

“is expressed in terms that a decision-maker “is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question” and “that there has to be identification of the connection that might lead the juror to decide the case other than on its legal and factual merits and an articulation of the logical connection between that matter and the  apprehended deviation from the course of deciding the case on its merits”

Notes for practice:

  • In the event a juror is discharged, take further instructions on if to proceed or press for a new trial.
  • The statement and application of the law of “apprehended bias”

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.

You might not read it, but we will rely on it if you try and sue us (smug face).

Case Note QLD – R v ZB [2021] QCA 9

 R v ZB [2021] QCA 9

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.

Facts: An appeal by the defendant for the recording of a conviction for possessing child exploitation materials, 98 images some of which at the higher end of the scale.

At first instance the defendant was sentenced to probation for two years with a conviction being recorded. The recording of a conviction resulted in the defendant being required to report under the Child Protection (Offender Reporting and Offender Prohibition Order) Act for 5 years.

The appellant had provided assistance to police, made full admissions, was a relativity young man, was in a stable relationship, had the support of family, references were tendered on his behalf and he was seeking treatment for anxiety. Against these factors, when weighing the ‘nature of the offence’ it was suggested by McMurdo the sentencing judge was “so influenced by the abhorrent nature of images… it outweighed all the other considerations” a conviction was recorded.

Finding: For separate reasons, Sofronoff P, McMurdo JA and Jakson J allowed the appeal, affirmed the 2 years probation without a conviction being recorded.

Sofronoff P examined the factors weighing for and against the recording of convictions generally. Is the community better served by being made aware of the conduct of the defendant, giving vindication to the community for its trust in order according to law or does the sentencing judge see the greater benefit to the community by not placing obstacles in the way of rehabilitating an offender? Not recording a conviction is not a case of “tenderness to the offender”. Where probation is being imposed, there must be more to justify the recording of a conviction.

McMurdo JA looked to the additional implications of being a reportable offender and the reasoning of the sentencing judge drawing analogies to R v Bunton [2019] QCA 214 (conviction not recorded on appeal). McMurdo found the sentencing judge had placed too much weight on the “nature and seriousness” of the offence (without trivialising the offending) against the other factors.

Jackson J assessed the views of the President and MuMurdo JA, adding that like in Bunton (but absent from this case) medical evidence suggesting a defendant proposed no real risk to children should be offered before an order for no conviction should be made.

Notes for practice:

  • Explanation of recording a conviction and the balancing of factors for the community one way or the other;
  • Comments to support that where probation is being imposed, there should be additional factors as to why a conviction is being recorded.

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.

You might not read it, but we will rely on it if you try and sue us (smug face).

Case Note – Totality principle and excessive head sentence

OWL v Queensland Police Service [2021] QDC 5

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.

Facts:

An appeal on the basis the sentence was manifestly excessive due to the imposition of the cumulative sentence. It was submitted:          

the learned acting Magistrate allowed the defendant’s criminal history to overwhelm the sentencing discretion, and allowed the circumstances surrounding the offending to overwhelm the sentencing discretion.” (Veen v R (1979) 143 CLR 458 and Veen v R (No 2) (1988) 164 CLR 465.)

Eight days after being sentenced to 11 months imprisonment the defendant committed further breaches of a domestic violence order with aggravated features of extended duration and violence against the aggrieved. The defendant was 45 years old and had been sentenced to periods of imprisonment 13 times, with 13 convictions for breaching domestic violence orders in the last 5 years.

The Magistrate at first instance imposed a head sentence of 18 months to run cumulatively with the 11-month sentence for an effective total sentence of 29 months.

Finding:

The court examined the transcript and noted deficiencies by both the Prosecution and Defence in the sentence. The court reviewed cases and concluded a head sentence of 2 years was appropriate, but the defendant had exposed himself to a head sentence of 2 ½ years.

“s 9(2)(j) and (l) Penalties and Sentences Act 1992 (Qld) serves to observe the totality principle, derived from cases such as Mill v The Queen (1988) 166 CLR 59 and Postiglione v The Queen (1997) 189 CLR 295.  The purpose of the principle is primarily to ensure the penalty imposed does not result in a crushing or disproportionate sentence.”

Noting the existing 11 month sentence the court stated there were two ways to structure the sentence without offending the totality principle.

  1. Impose a 2-year sentence to run concurrently with the existing sentence (total of 24 months); or
  2. Substantially reduce the sentence to 12 months but have it run cumulatively (total of 23 months).

Notes for practice:

  • A clear re-statement of the common law totality principle, and the totality principle in the Penalties and Sentences Act.
  • Where totality is a factor, consider the various sentencing structures to assist the court with the appropriate head sentence by the concurrent or cumulative sentencing.

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.

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Case Note – Peaceful Protesting and the use of a Dragons Den attachment device

Casenote – Protesters Succeed on Appeal against Manifestly Excessive Sentence for using a ‘Dangerous Attachment Device’ to Interfere with Transport Infrastructure

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.

EH v QPS; GS v QPS [2020] QDC 205

Facts: Two defendants in their early 20s were charged with obstructing, trespassing on, and using a dangerous attachment device to interfere with a railway structure in early January of this year. The defendants were protesting climate action in response to the national bushfires of 2020. As a result of police attending the scene, the two were also subsequently charged with contravening a police direction or requirement.

The defendants attached a ‘dragon’s den’ device to the railway infrastructure, a device captured by the s 14B definition of the Summary Offences Act (‘SOA’).

The defendants plead guilty on the first occasion, and the Acting Magistrate sentenced them both to 3 months imprisonment on a suspended sentence.

The appeal was the first of its kind against the head sentence, a new law introduced in 2019 for connecting a dangerous attachment device to transport infrastructure, contained in section 14C(1) SOA.

The appeal claimed that the sentence imposed was manifestly excessive.

Finding: The Judge, Fantin DCJ, allowed the appeal and re-sentenced the defendants to a single fine of $1,000 each with no conviction recorded.

Her Honour highlighted that the device only caused a potential risk of harm to the protesters themselves instead of emergency services or the wider public; and combining this with a lack of excessive loss/damage/inconvenience suffered by others meant the offending was on the lower end of the scale. These considerations assisted Fantin DCJ’s assessment of the objective seriousness of the offending, the culpability of the defendants and were remarked to be within the Acting Magistrate’s sentencing discretion. The Judge contended that whilst the democratic right to protest is not unfettered, the overall motive as being political and without malice or benefit to the defendants also should have been considered.

The Judge concluded that the Acting Magistrate miscarried the sentencing discretion and made several errors in the decision. As such, and with reference to the antecedents of the defendants, the sentence initially imposed was held to be manifestly excessive.

In support of this decision, Her Honour referred to the Explanatory Notes, illustrated examples of clemency shown in previous cases of civil disobedience, drew analogies between Nolin v Commissioner of Police [2019] QDC 171 and distinguished against facts in Avery & Ors v Queensland Police Service [2019] QDC 2.

Notes for practice:

  • Relevance of motive on sentencing as a mitigating, aggravating or neutral factor.

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.

You might not read it, but we will rely on it if you try and sue us (smug face).