Lo Castro v The Queen

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.