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: 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.
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).
