Murray Torcetti Lawyers

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

CASE NOTE - Impact of a short period of actual custody

R v Rogan [2021] QCA 269

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: After a party were there was heavy drinking the defendant and the complainant when he commenced sexually assaulting the complainant by; straddling the complainant, unbuttoning her dress and sucking on her breast, removing his pants and thrusting his penis into her clothed pelvic region. The assault ended when the host entered the room.

Admissions were made, and an apology text was sent the following day. However, the defendant attempted to have a friend “cajole” the complainant into withdrawing the charge. The Defendant has stable employment, family support and no criminal history.

At sentencing several references, letter of remorse, offers of compensation, and a psychological report was tendered to support the submission for a wholly suspended sentence of 12 months, with the crown acknowledging term without actual custody was open. The judge at first instance imposed a sentence of 12 months imprisonment suspended for two years after serving two months. The appeal was no the basis of manifest excess in the circumstances.

Finding: Balancing the serious nature of the offence, and the applicants own personal circumstances raise a reason why the defendant should serve actual time?

Upon balancing the factors and some precedent cases, the Court (agreeing with the reasons of Sofronoff P) found actual custody was not required. Sofronoff P noted “A very short term of imprisonment can have large effects. Apart from the stigma which imprisonment carries, it may affect present and future employment, housing arrangements and all kinds of financial arrangements. The effects of prison extend to whatever experiences are undergone in prison, which may occur even within a short period”.

The appeal was successful with the term being suspended immediately.

Notes for practice:

  • That even short terms of imprisonment have greater effects on a person than the time spent in the prison.
  • A head sentence fashioned to meet general deterrence with the immediate release (or suspension) reflects the personal background of the defendant.
  • A case to bank for lower-level sexual assaults where the defendant makes all efforts to rehabilitate and demonstrates remorse.

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

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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