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 11^th 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”

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 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.

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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.

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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.

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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 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.

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.

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