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.
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:
- 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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