R v Carter

[2006] QCA 417

COURT OF APPEAL

WILLIAMS JA
JERRARD JA   
McMURDO J

No CA  No 29 of 2006

THE QUEEN	Applicant
v
KIRAN LATA CARTER	Respondent

BRISBANE

..DATE 23/10/2006

JUDGMENT

MR P SMITH (instructed by Marler & Darvall Solicitors) for the applicant

MR C HEATON (instructed by the Department of Public Prosecutions (Queensland)) for the respondent

WILLIAMS JA:  On the 1st of February 2005, an indictment was presented against Kiran Lata Carter charging her with 1 count of torture, and 12 counts of assault, in some instances with circumstances of aggravation.  At all times it was the contention of the prosecution that counts 2 to 13 on that indictment provided particulars of the torture alleged in count 1.

As presented, count 1 was in terms that, "On a date unknown between the 1st day of January 1998 and the 16th day of January 2000, at Kingston and elsewhere in the State of Queensland, Kiran Lata Carter tortured [T]."

The matter came before the District Court at Beenleigh on the 23rd of January 2006.  On that occasion the applicant pleaded guilty to count 1 in the form that then appeared on the indictment, and the Crown accepted that plea in full discharge of the indictment.  The allocatus was then administered.  In law, the applicant was then convicted of 1 count of torture, alleged to have occurred between 1 January 1998 and 16 January 2000.

Submissions were then addressed to the sentencing Judge by counsel for the prosecution, and counsel for the applicant, the then accused.  At the conclusion of those submissions, counsel for the prosecution applied for leave to amend count 1 on the indictment.  That was not opposed by counsel for the applicant, and the indictment was amended so that the introductory words of count 1 read that:  "Between the first day of January 1993 and the 16th day of January 2000."  That amendment having been made, the applicant was re-arraigned..  Again she pleaded guilty, and again, the allocatus was administered. 

It is then clear that the sentencing Judge proceeded to impose sentence with respect to an offence of torture committed over a seven year period.  The sentence imposed was five years' imprisonment, with a declaration that the offence was a serious violent offence.

On 1st February 2006, the applicant lodged an application for leave to appeal against sentence.  Based on some erroneous advice that she then received, she abandoned that application for leave to appeal against sentence on 8 May 2006.  She has now sought to have that abandonment set aside.  The matter was then listed for hearing in the Court of Appeal today.

Prior to the matter coming on for hearing, Justice Jerrard observed that count 1, as amended, charged an offence not known to law, because the offence of torture was only introduced into the Criminal Code on 1 July 1997. The parties were contacted and were asked to make submissions in the light of the fact that the applicant had been sentenced with respect to an offence not known to the law.

Counsel for the prosecution in this Court has consented, in the circumstances, to the setting aside of the abandonment, and submissions have been received as to the appropriate course to take.  To regularise procedure leave was given to file an application for leave to appeal against conviction.

It is clear that the charge as it initially appeared on the indictment alleged an offence known to law, and the applicant pleaded guilty to, and was convicted of, that offence.  But she has not been sentenced with respect to that offence.

It appears appropriate that the matter be remitted to the District Court so that she can be sentenced for the offence to which she initially pleaded guilty, and with respect to which a conviction stands.  If that is done, and there is any subsequent concern with the sentence then imposed, either party could seek to bring the matter again before this Court.

To give effect to all of that, the orders of the Court should be:

(i)  Set aside the abandonment of 8 May 2006.

(ii) Set aside the amendment made to count 1 on the

indictment presented on 1st February 2005, being the amendment made on 23 January 2006.

(iii)Set aside the conviction and sentence on count 1 as

amended on the 23rd of January 2006.

(iv) Remit the matter of the sentence of Kiran Lata

Carter for the offence of count 1 on the indictment

in its original form to the District Court at

Beenleigh.

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