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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 Anthony [2020] QCA 79

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:

1. 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

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. (this is not an English sentence as my university teacher reached out to remind me)

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

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 Ruiz; Ex parte Attorney-General (Qld) [2020] QCA 72 

Facts: The defendant (respondent for the appeal) was sentenced to 3 years imprisonment suspended after serving 12 months for an operational period of 3 years for one count of rape and 18 months imprisonment for two counts of indecent treatment of a child. The DPP appealed on the basis the sentence was manifestly inadequate. Submissions were made that upon release from prison the respondent should either be on a period of probation or parole to be supervised within the community.

The respondent had no criminal history, exceptional employment prospects and strong family support. Full admissions were made to the police on the rape count and indecent treatment charge, additional disclosures resulted in the second charge of indecent treatment.

The respondent argued even though the period imprisonment was suspended after serving 12 months for an operational period of three years, due to the mandatory reporting requirements the respondent would remain supervised in the community.

The appeal court reviewed comparable cases, noted the respondent had demonstrated genuine remorse and facilitated justice through cooperation with the police (and disclosed additional offences).

Finding: Appeal dismissed, sentence reflected mitigating factors and seriousness of offending.

Notes for practice:

• Use of remorse to mitigate penalty.
• Additional charges disclosed to police through admissions.

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).

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 Peirano [QCA] 100

Facts: An appeal against the sentence for possessing methylamphetamine.

The appellant knowingly acted as a “drug runner” between Brisbane and Mackay knowing it was for commercial purposes. The appellant had no criminal history and had been treated for depression and anxiety for some time.

A sentence of six years imprisonment with parole eligibility after serving 20 months was imposed. The appellant appealed on the basis of the sentence being manifestly excessive. The appellant was 32 years old when the offending occurred and 33 at the sentence.

A total of 186.189 g of pure methylamphetamine and a total weight of 276 g was located in a search. The appellant was connected with other offenders who were charged with trafficking, he was sentenced on the basis that he was moving the drugs from different locations at the request of the co-accused.

The Crown was unable to state the extent to which the appellant had benefited but had previously been paid $2500 by a co-accused.

Finding: The court affirmed the sentence of six years with parole eligibility roughly 4 months under the one third mark as being an appropriate sentence in all the circumstances.  

Notes for practice:

• QCA sentencing for courier possession connected to trafficking absent the trafficking charge.

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).

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 Newman [2020] QCA 92

Appeal after a conviction of sexual assault, four grounds were advanced only two were considered

• Similar fact evidence
• Directions about the use of evidence from a witness

Facts: The appellant offered the complainant a lift home from the valley late at night. The parties were not known to each other, the complainant had been drinking heavily and thought he was flagging down an Uber.

The assault was particularised as touching of the complainant in the area of his penis without consent.

The appellant gave evidence of a sexualised discussion but did not accept there was any touching.

The appellant gave evidence at trial that he would drive around late at night roughly four or six times a month and would occasionally give drunk people lifts home.

The prosecution led evidence from two other witnesses where the appellant had picked up other men, driven to a destination and engaged in sexualised conversation during the travel. Neither of those witnesses were inappropriately touched on those occasions.

The Crown relied on these witnesses for similar fact evidence. The court found the evidence could be led. However, the routine directions given regarding similar fact evidence were insufficient to overcome impermissible use of the evidence by the other witnesses.

Finding: The court ordered a retrial of the matters, noting if the crown is to rely on what amounts to bad character of the appellant, the bad character is irrelevant to the determination of the jury of the appellant guilty for the offence charged. Further warnings ought to be given against general propensity on the basis of bad character.

Notes for practice:

• Court outlines use of similar fact evidence.
• Consider how far the propensity evidence takes the crown.
• Where propensity evidence is led, consider additional jury directions above standard directions.

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).

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 Vakatini [2020] QSC 107

Facts: Sentencing remarks for possession of methylamphetamine with a circumstances of aggravation.

The defendant was a drug courier intercepted carrying 99.432 grams of pure methylamphetamine. Upon being released on bail, the defendant complied with his bail conditions. The defendant had no criminal record being 26 at the time of the offence and 27 sentencing. As a consequence of being apprehended, the defendant had to sell his vehicle to repay drug debts from the loss of the illicit substances. A psychological report and a letter from the defendant outlining remorse and regret was tendered by the defence.

At a time where the District Courts are not sentencing people looking at actual custody when they are currently in the community, the defendant chose to push the matter and start his sentence to have it over and done with.

The sentencing judge canvassed the current stage three restrictions in correctional facilities as “making jail an even more bleak and lonely experience than normal, at least for some time, for many prisoners” noted stage 4 precautions are a possibility but are as yet only prospective.

In imposing the period of custody the Judge stated “it is just that a greater than normal moderation of the actual jail time component of the sentence ought occur” with reference to the COVID-19 implications and reduced the parole release date from 12 months to nine months and then a further reduction down to six and a half months.

Finding: Sentenced to three years, parole release after six and half months.

Notes for practice:

• COVID-19 Considerations
• Nifty turn of phrase “making jail an even more bleak and lonely experience than normal, at least for some time, for many prisoners” that will surely fall into future submissions.

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).