Lo Castro v The Queen - [2011] NTCCA 1

Lo Castro v The Queen [2011] NTCCA 1

PARTIES: JOHANN SEBASTIAN LO CASTRO

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 23 of 2010 (20942611 & 20942617)
DELIVERED:  18 FEBRUARY 2011
HEARING DATES:  2 FEBRUARY 2011
JUDGMENT OF:  RILEY CJ, SOUTHWOOD & BARR JJ
APPEALED FROM:  MARTIN (BR) CJ
CATCHWORDS:

CRIMINAL LAW- sentence – fresh evidence - whether evidence of real significance was not brought to the attention of the learned sentencing Judge resulting in a miscarriage of justice – whether relationship between the victim and the appellant was a mitigating circumstance– whether learned sentencing Judge failed to give weight to the principle of totality– whether learned sentencing Judge failed to take into account the appellant’s subjective case - whether sentence manifestly excessive – appeal dismissed.
Criminal Code s 411(4); Sentencing Act.
Cahyadi v The Queen (2007) 168 A Crim R 41; Pearce v The Queen (1998) 194 CLR 610, applied.
Fordham (1997) 98 A Crim R 359; Wiren v The Queen (1996) 5 NTLR 211, considered.
Damaso (2002) 130 A crim R 206; Murphy v The Queen [2005] NTCCA 15, followed.
REPRESENTATION:
Counsel:
Appellant:W Terracini SC and J O’Sullivan
Respondent: M Thomas
Solicitors:

Appellant:  Benjamin Archbold
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Ril1102
Number of pages:  18

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lo Castro v The Queen [2011] NTCCA 1

No. CA 23 of 2010 (20942611 & 20942617)
BETWEEN:

JOHANN SEBASTIAN LO CASTRO

Appellant

AND:

THE QUEEN

Respondent

CORAM: RILEY CJ, SOUTHWOOD AND BARR JJ
REASONS FOR JUDGMENT
(Delivered 18 February 2011)
The Court:

On 22 July 2010 the appellant was sentenced to a total period of imprisonment of 13 years with a non-parole period of 8 years for a number of offences committed against two victims. He now appeals against the sentences on various grounds including that they were manifestly excessive.
The victims were identified in the sentencing remarks as Ms A and Ms B. There were two indictments and the proceedings in relation to Ms A were dealt with first. There was a trial lasting approximately 8 days in the course of which both Ms A and Ms B gave evidence. At the conclusion of the trial the appellant was found guilty by the jury and then convicted of five offences of unlawful assault upon Ms A and three counts of having had sexual intercourse with Ms A without her consent. Whilst the jury was deliberating in relation to the first trial, the trial concerning Ms B commenced. The appellant was arraigned and a jury was empanelled. However, before the trial proceeded further the appellant requested to be re-arraigned and he pleaded guilty to four counts of unlawful assault relating to Ms B, and one count of attempting to have sexual intercourse with Ms B without…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lo Castro v The Queen

Details

AGLC: Lo Castro v R [2011] NTCCA 1
Case: [2011] NTCCA 1
Decision Date: 18 FEBRUARY 2011

CaseChat Overview and Summary

The appellant, Lo Castro, appealed his sentence to the Supreme Court of South Australia, constituted by Riley CJ, Southwood and Barr JJ. The appeal concerned the sentence imposed following convictions for offences against Ms A. The grounds of appeal included claims that significant evidence was not presented to the sentencing judge, that certain counts should have been made concurrent, that the relationship between the appellant and Ms A was not adequately considered as a mitigating factor, that the appellant's subjective case was not properly taken into account, and that the sentence was manifestly excessive.

The central legal issues before the Full Court were whether a miscarriage of justice had occurred due to fresh evidence not being presented to the sentencing judge, and whether the sentencing judge had failed to give sufficient weight to the relationship between the appellant and Ms A as a mitigating circumstance, adequately consider the appellant's subjective case, or properly apply the principle of totality. The appellant sought to adduce fresh evidence suggesting the relationship with Ms A continued for a significant period after the offending, arguing this indicated less trauma for Ms A and was a material factor overlooked by the sentencing judge.

The Full Court considered the criteria for admitting fresh evidence on appeal, noting it must have "real significance" and that its absence must have resulted in a miscarriage of justice. The fresh evidence proposed would place Ms A with the appellant shortly after the offending and show her assisting him with invoicing, but it did not provide insight into her emotional state or actual state of mind. The Court observed that the sentencing judge had already found Ms A to be vulnerable and that the appellant exploited this, leading her to believe she was undesirable. The sentencing remarks indicated the relationship was "off" until around April or May 2009, when it recommenced and was described by Ms A as "perfect" before ending in August 2009. The Court found that the fresh evidence did not alter the sentencing judge's findings regarding Ms A's vulnerability or the appellant's exploitation of it, nor did it demonstrate that the sentence was manifestly excessive or that the sentencing judge failed to take into account relevant factors.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant has appealed on five grounds as follows:(a)evidence of real significance to the sentence proceedings was not brought to the attention of the sentencing Judge as a result of which a miscarriage of justice occurred;(b)the learned sentencing Judge, in his discretion, ought to have made counts 15 and 11 concurrent;(c)the learned sentencing Judge failed to attach any weight to the relationship between the parties;(d)the learned sentencing Judge failed to adequately take into account the appellant's subjective case;(e)the sentence imposed was manifestly excessive.Fresh evidence The appellant sought to lead fresh evidence which, it was argued, demonstrated that the relationship between the appellant and Ms A did not cease for any significant period after the offending which occurred on 2 November 2008. It was submitted that the fact the relationship continued was evidence that the trauma Ms A in fact suffered was less severe than that described by Ms A in her victim impact statement; accordingly, a material factor to the sentencing exercise was not brought to the attention of the learned sentencing Judge. Generally before fresh evidence will be received it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice.[1] It may be admitted where the "evidence has real significance” to the sentencing proceedings. The court may receive fresh or new evidence where the interests of justice require that course. At its highest the fresh evidence would place Ms A in the appellant's delivery vehicle, with the appellant, on 7 November 2008 and also establish that Ms A assisted the appellant in invoicing customers on that day. It does not provide any insight into her appearance on the day, her apparent emotional or mental state, or her actual state of mind. In the course of the sentencing remarks the learned sentencing Judge described Ms A as a young person with a fragile personality, which made her vulnerable to the abuse, influence and control of the appellant. His Honour found that the appellant exploited that vulnerability and concluded that Ms A was lacking in self-esteem and reached a point where she believed that no one but the appellant would want her. She also believed that she was partly at fault for the problems within the relationship because she kept going back to the appellant. At trial the evidence of Ms A was that she viewed the relationship with the appellant as being "over" from 2 November 2008 until May 2009 or possibly a little earlier. She did not say that she had no contact with the appellant in that period or that she did not accompany him in the course of his deliveries. The relationship then commenced again and continued through to August 2009. The remarks of the learned sentencing Judge were, relevantly, as follows:After your attack upon Ms A in November 2008, the relationship with Ms A was off until about April or May 2009 when it recommenced after you called Ms A and said you missed her and would change. Ms A described the relationship when it resumed as "perfect". You said you were sorry and, in her words, you were "really nice". No further acts of violence against Ms A occurred and the relationship ended in August 2009 by mutual agreement.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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