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No discount for dangerous death-causing drug driver

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Connie-Lee Rose Williams has been refused leave to appeal against her sentence for one count of dangerous operation of a vehicle, causing death whilst adversely affected by an intoxicating substance and excessively speeding.

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The facts

On 20 September 2017, Connie-Lee Rose Williams drove a motor vehicle on the Bruce Highway, north of Gin Gin which left the road and impacted at high speed with a culvert, and subsequently a tree. Her husband and her five year old son were both ejected from the vehicle and lost their lives. Neither wore seatbelts.

An investigation of the collision established that the motor vehicle had failed to negotiate a sweeping curve and left the road at a minimum speed of 171 kilometres per hour.

Immediately prior to leaving the roadway, Williams was observed to engage in a protracted course of dangerous driving. Other road users had been required to take evasive actions to avoid a collision.

At the time of the collision, Williams was travelling upon a sealed bitumen road, divided by audible double continuous lines. The weather was fine and clear. The road surface was dry. Visibility was good. The motor vehicle was in satisfactory mechanical condition. A subsequent examination found no faults which would have contributed to the incident.

Williams, who was restrained by a seatbelt, sustained injuries as a consequence of the impact. Blood specimens taken from Williams upon arrival at hospital revealed the presence of both amphetamines and methylamphetamine at levels likely to affect her ability to safely drive a motor vehicle. A search of the motor vehicle located a clip seal bag containing 1.65 grams of pure methylamphetamine.

 

Relevant Legislation

Section 328A(4) of the Criminal Code 1899 (Qld) provides that

328A Dangerous operation of a vehicle

(4) A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable on conviction on indictment—

(a) to imprisonment for 10 years, if neither paragraph (b) nor (c) applies; or

(b) to imprisonment for 14 years if, at the time of committing the offence, the offender is—

(i) adversely affected by an intoxicating substance; or

(ii) excessively speeding; or

(iii) taking part in an unlawful race or unlawful speed trial; or

(c) to imprisonment for 14 years, if the offender knows, or ought reasonably know, the other person has been killed or injured, and the offender leaves the scene of the incident, other than to obtain medical or other help for the other person, before a police officer arrives.

This offence is mentioned in schedule 1 of the Penalties and Sentences Act 1992 (Qld).

A conviction for a serious violent offence has the consequence that 80% of the sentence must be served before the offender is eligible for parole.

Section 161A(3) of the Penalties and Sentences Act relevantly provides that:

161A When an offender is convicted of a serious violent offence

An offender is convicted of a serious violent offence if—

  1. a) the offender is—

(i) convicted on indictment of an offence—

(A) against a provision mentioned in schedule 1; or

(B) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and

(ii) sentenced to 10 or more years imprisonment for the offence, calculated under section 161C.

Section 161B of the Penalties and Sentences Act 1992 (Qld) relevantly provides that:

161B DECLARATION OF CONVICTION OF SERIOUS VIOLENT OFFENCE

(1) If an offender is convicted of a serious violent offence under section 161A(a), the sentencing court must declare the conviction to be a conviction of a serious violent offence as part of the sentence.

(3) If an offender is—

(a) convicted on indictment of an offence—

(i) against a provision mentioned in schedule 1; or

(ii) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and

(b) sentenced to 5 or more, but less than 10, years imprisonment for the offence, calculated under section 161C;

the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.

(5) For subsections (3) and (4), if an offender is convicted on indictment of an offence—

(a) that involved the use, counselling or procuring the use, or conspiring or attempting to use, violence against a child under 12 years; or

(b) that caused the death of a child under 12 years;

the sentencing court must treat the age of the child as an aggravating factor in deciding whether to declare the offender to be convicted of a serious violent offence.

Section 161C of the Penalties and Sentences Act 1992 (Qld) ) relevantly provides that the specified years of a sentence under Sections 161B(3) is the number of years imposed for the Schedule 1 offences calculated as at the day of sentence.

Primary judge’s decision

Williams’ plea of guilty to the offence was entered on the basis that she accepted she had deliberately engaged in a course of dangerous driving over a protracted period, which was hazardous to the safety of herself, her passengers and other road users. That dangerous driving included driving on the wrong side of the road, over double white lines, whilst excessively speeding and being significantly adversely affected by methylamphetamine, in circumstances where she was aware that her passengers, including her young son, were not restrained by seatbelts.

Judge Moynihan QC DCJ acknowledged the early plea of guilty but described Williams’ driving as involving the deliberate engagement in an extended course of reckless and dangerous driving on a major highway, endangering a number of people, with catastrophic consequences, particularly to her husband’s family. This dangerous driving occurred in circumstances where Williams was found to have both amphetamine and methylamphetamine in her blood, at levels enough to adversely affect her driving. Her observed conduct at the scene was also consistent with amphetamine use.

Judge Moynihan QC had regard to numerous mitigating factors: that Williams was 33 years of age at the time of the offence, with no criminal history and a limited traffic history; that she had pleaded guilty in a timely way, facilitating the administration of justice; that she had expressed remorse; her history and presentation were consistent with the presence of a number of psychological disorders, with the possibility of a potentially undiagnosed head trauma; that she had herself suffered significant physical injuries and had to live with the loss of both her husband and her son; and that she was separated from her two daughters and that this ongoing separation would have an adverse impact upon her and her daughters.

However, Judge Moynihan QC DCJ ordered Williams be imprisoned for nine years and declared the offence a serious violent offence, observing that:

“The factors I consider that make it a more serious example of the offence and warrant the declaration are: the extended distance over which you drove dangerously, the inherently dangerous nature of the manoeuvres you made on a number of occasions, the number of innocent members of the community you exposed to the real risk of serious injury or death by your deliberate and reckless conduct, that you allowed your son to travel unrestrained in the vehicle when you determined to drive the way you did whilst adversely affected by methylamphetamine and your deliberate and reckless conduct has taken the lives of two people.”

 

Court of Appeal’s decision

Williams applied for leave to appeal against her sentence, contending that it was manifestly excessive as circumstances of the offence did not involve sufficiently serious features to warrant the imposition of a sentence of nine years imprisonment, with a declaration that she had been convicted of a serious violent offence. She also argued that too little weight had been given to the mitigating factors.

Boddice J noted that:

“The applicant’s dangerous driving involved not only a protracted course of driving which placed other members of the public at significant risk. It involved a deliberate course of driving at excessive speed on the wrong side of a busy highway in areas where there were present double white lines, at a time when the applicant was adversely affected by intoxicating substances and aware that each of her passengers were unrestrained in the motor vehicle. Such a course of conduct was rightly described as involving an occasion of serious dangerous driving.”

Boddice J held that comparable authorities supported a conclusion that a proper exercise of the sentencing discretion for such a serious occasion of dangerous driving would have included a sentence of imprisonment of at least ten years, with the consequence that there would have been an automatic declaration she had been convicted of a serious violent offence. As a result, a sentence of nine years’ imprisonment, with a declaration Williams had been convicted of a serious violent offence, was a sentence at the lower end of the sentences applicable to this serious offending.

Sofronoff P and McMurdo JA agreed with Boddice J. As a result, the application for leave to appeal was refused.

Conclusion

This case demonstrates how deliberate dangerous driving that causes death can expect to be severely punished, even when there is a lack of criminal history and/or an early guilty plea.  Connie-Lee Rose Williams intentionally drove under the influence of illegal drugs, at speeds well over the legal limit on the wrong side of the highway for a long period, knowing full well her husband and son were not wearing seat belts. The horrific consequences were readily foreseeable, and warranted a substantial sentence of actual imprisonment to reflect the gravity of the offending.

District Court permanently stays Volkers prosecution

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The District Court has decided to not allow charges of indecent dealing to proceed due to the long history and unreasonable delays in the matter.

Scott Volkers

The facts

On 26 March 2002, Scott Volkers was arrested in relation to alleged indecently dealing of a 12 year old female swimmer in 1987.

On 16 June 2002, Volkers was charged with indecently dealing of a 13 year old female swimmer in 1984 and 1985.

On 25 July 2002, he was committed to stand trial on seven counts of indecent dealing involving the two complainants. Continue reading “District Court permanently stays Volkers prosecution”

The law of lawyers bills in Queensland

Posted on Categories civil litigation, Legal profession, litigation, Professional feesTags , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 1 Comment on The law of lawyers bills in Queensland

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Introduction

For a very long time in Commonwealth legal systems, the legal profession has been regulated for the benefit of clients of lawyers and the public at large. Among other things, there has been a recognised public interest in protecting those liable to pay legal fees from overcharging by lawyers. One of those protections is and has been the legal requirement for a bill to be provided so that the client can seek advice on the fees and charges.

As a result, one of the many modern obligations that lawyers in English legal systems have to comply with in the course of legal practice is to provide clients and any other persons liable for their fees with proper bills before such persons can be liable for or sued for such fees. Continue reading “The law of lawyers bills in Queensland”

Claimant loses injury case for being out of contact to his solicitors

Posted on Categories civil litigation, Personal InjuryTags , , , , , , 2 Comments on Claimant loses injury case for being out of contact to his solicitors

car accident

The facts

The Claimant Warren Jonathan was injured in a motor vehicle accident on 4 August 2012. He subsequently through his solicitors sent to the CTP insurer RACQ a Notice of Accident Claim form under the Motor Accident Insurance Act 1994. The insurer confirmed that the form was compliant with Motor Accident Insurance Act  requirements and later admitted liability in full for the accident. Continue reading “Claimant loses injury case for being out of contact to his solicitors”

Judge McGill SC goes out in a blaze of glory in appeal decision

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Judge John McGill SC has been a stalwart of the District Court for over 20 years. His final judgment, an appeal against a decision of Magistrate Suzette Coates, has made him leave the bench with a bang and not a whimper.

Judge John McGill SC

Those who are familiar with civil litigation in the Magistrates Court know that it is an unfortunate reality that occasionally litigants will receive “rough justice”. This is often due to the lack of knowledge of civil litigation and/or the flippant attitudes of some Magistrates. This observation in no way is intended to criticise the vast majority of Queensland Magistrates, who are conscientious and serve their state well. Continue reading “Judge McGill SC goes out in a blaze of glory in appeal decision”

Sterling Law sets leading precedent on itemised bills

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With its latest big win, Sterling Law is establishing its place as an elite Queensland litigation firm, and a force to be reckoned with.

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The facts

When Joanne Murdock deliberately remained uncontactable to her solicitors for an extended period of time, she received a bill from them for all the work they had done for her.

The bill set out the charges item by item, particularising the date, the time spent and the person who performed the work, but for most items only provided very concise descriptions of the work performed. Examples later complained of included “attendance with you”, and “telephone attendance with you”. Continue reading “Sterling Law sets leading precedent on itemised bills”

Paul Pisale sentenced to 2 years imprisonment

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Paul Pisasale
The facts

Former Ipswich lord mayor Paul Pisale, a Singaporean friend named Yutian Li and a lawyer named Cameron McKenzie were accused of participating in a bizarre extortion plot:

“Prosecutors claim Yutian told Pisasale she wanted to punish Xin after learning he was married during their relationship.

Pisasale then allegedly posed as a private investigator in a series of phone calls in which he told Xin he needed to pay Yutian between $5000 and $10,000, saying she has “a very, very good case” against him and “could go after you”.

The money, Pisasale said, was reimbursement for Yutian’s private investigation fees.

“She was so upset. You could just see her whole world had been destroyed,” he told the court.

“She was a beautiful person. She was a very caring person and she would have given her 100 per cent to this bloke.

“She was broke, she was in Australia and she had nowhere to turn.

“All he had to do was reimburse her and let her start again but he was so determined not do.”” Continue reading “Paul Pisale sentenced to 2 years imprisonment”

Indictable offences in the Magistrates Court of QLD

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Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.

The Criminal Code

Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.

Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.

Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is normally the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is a called a summary trial, and the presiding Magistrate is the sole trier of fact. A matter dealt with summarily is dealt with in the Magistrates Court.

Chapter 58A of the Criminal Code (containing sections 552A -552BB inclusive) provides for when indictable offences must or can be heard summarily.

Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.

Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.

Section 552BA of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless they are excluded offences under section 552BB of the Code.

Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions or if exceptional circumstances exist.

Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A , 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.

Indictable offences which Prosecution can elect for summary trial

The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.

The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:

Section 141: Aiding persons to escape from lawful custody.

Section 142: Escaping from lawful custody.

Section 143: a person responsible for keeping someone in from lawful custody permitting escape from lawful custody.

Section 205A: Contravening order about information necessary to access information stored electronically.

Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.

Indictable offences which must be dealt with summarily unless defence elects jury trial

The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.

The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:

A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.

Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.

An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.

Section 60A: Participants in criminal organisation being knowingly present in public places.

Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.

Section 76:  Recruiting a person to become participant in criminal organisation.

Section 77B:  Habitually consorting with recognised offenders.

Section: 316A: Unlawful drink spiking.

Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).

359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.

An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.

An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.

An offence against chapter 42A (Secret Commissions).

 

Indictable offences which must be dealt with summarily

Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.

Relevant offences are defined as indictable offences which either:

  1. 1. carry maximum sentences of three years or less; or
  2. 2. are an offence under part 6 of the Code, excluding an offence under Chapter 42A (secret commissions) or an ‘excluded offence’ listed at Section 552BB.

 

The list of excluded offences contained in the table of Section 552BB includes the following offences:

Section 461: Arson

Section 462: Endangering particular property by fire.

Section 463: Setting fire to crops and growing plants

Section 467: Endangering the safe use of vehicles and related transport infrastructure

Section 469A: Sabotage and threatening sabotage

Section 470: Attempts to destroy property by explosives

The list of excluded offences contained in the table of Section 552BB also includes the following indictable offences if committed in the following circumstances:

Section 398: stealing – if:

the amount stolen, yield or detriment is equal or more than $30,000, and the offender does not plead guilty; or

the thing stolen was a firearm for use in another indictable offence.

Section 399: fraudulent concealment of documents – if the offence is not committed in relation to a document recording title to property,  or the yield or detriment is equal or more than $30,000 and the offender does not plead guilty.

Section 403: Severing with intent to steal – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.

Section 406: Bringing stolen goods into Queensland – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.

Section 408A: Unlawful use or possession of motor vehicles, aircraft or vessels – if the value of the motor vehicle, aircraft or vessel is equal or more than $30,000 and the offender does not plead guilty, or if the offender is liable for at least 10 years imprisonment (ie if they used the vehicle for the commission of an indictable offence or intended to or did wilfully destroy, damage, remove or otherwise interfere with the mechanism (or part thereof) or other part of or equipment attached to the motor vehicle, aircraft or vessel).

Section 408C: Fraud – if the amount in question is at least $30,000 and the offender does not plead guilty.

Section 408E Computer hacking and misuse – If the offender causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000, or intends to commit an indictable offence, and the offender does not plead guilty.

Chapter 38 Stealing with violence or extortion by threats – excluding sections 413 (Assault with intent to steal) and 414 (Demanding property with menaces with intent to steal).

Section 419 Burglary – if:

the offender uses or threatens to use actual violence;

the offender is or pretends to be armed;

the offender damages or threatens to damage any property by at least $30,000 in value and the offender does not plead guilty; or

the offender then commits an indictable offence in the dwelling.

Section 421 Entering or being in premises and committing indictable offences – if:

the offender commits an indictable offence in the premises which must proceed on indictment; or

the offender enters by means of a break and the value of damage caused by the break is of at least $30,000.

Section 427 Unlawful entry of vehicle for committing indictable offence – if the offence is committed in the night or the offender uses or threatens violence, pretends to be armed, is in company or damages or threatens to damage any property.

Section 430 Fraudulent falsification of records – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.

Section 433 Receiving tainted property – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.

Section 435 Taking reward for recovery of property obtained by way of indictable offences – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.

Chapter 44 Offences analogous to stealing related to animals – if the value of the animals is at least $30,000 and the offender does not plead guilty.

Section 468 Injuring animals– If the animal in question is stock, the value of the animals is at least $30,000 and the offender does not plead guilty.

Section 469 Wilful damage – if any of the following apply:

property is damaged or destroyed by explosion;

the property in question is—(i) a bank or wall of the sea or inland water; or(ii) a work relating to a port or inland water; or

if the property in question is any part of a railway, or any work connected with a railway

If the property in question is an aircraft or anything whatever either directly or indirectly connected with the guidance control or operation of an aircraft

If the property in question is a vessel, a light, beacon, buoy, mark or signal used for navigation or for the guidance of sailors, a bank, work or wall of the sea or inland water

If the property in question is a manufacturing or agricultural machine or another thing used, or intended for use, for manufacture or for performing a process connected with the preparation of agricultural produce and is destroyed or rendered useless

If the property in question is a well or bore for water or the dam, bank, wall, or floodgate of a millpond or pool.

Section 471 Damaging mines – if the value of the damage is at least $30,000 and the offender does not plead guilty.

Section 472 Interfering with marine signals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.

Section 473 Interfering with navigation works – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.

Section 474 Communicating infectious diseases to animals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.

Section 488 Forgery and uttering – if the document is a valuable security, insurance policy, testamentary instrument (whether the testator is living or dead) or registration document or is evidence of an interest in land, or a power of attorney, contract or document kept or issued by lawful authority OR the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.

Section 498 Falsifying warrants for money payable under public authority – if the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.

514 Personation in general – If the representation is that the offender is a person entitled by will or operation of law to any specific property, and the person commits the offence with intent to obtain such property or possession thereof or the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.

Conclusion

There a number of indictable offences in Queensland that can or must be dealt with summarily in the Magistrates Court. Generally speaking, an indictable offence must be dealt with summarily if it carries a maximum sentence of three years or less, or it is an offence under part 6 of the Code (excluding Chapter 42A) for which the monetary value is less than $30,000 or the offender pleads guilty, and the offender is liable for a maximum period of imprisonment which is less than 14 years imprisonment.

When considering whether an indictable offence could or should must be dealt with summarily, one should consider the following:

    1. 1. Whether it is an offence referred to in sections 552A, 552B and 552BA of the Code;
    2. 2. If the offence is mentioned at section 552A(1) of the Code, whether the Prosecution has or will elect to have it dealt with summarily;
    3. 3. If the offence is mentioned at section 552BA of the Code, whether it is an excluded offence under section 552BB of the Code; and
    4. 4. Whether the Magistrates Court may decide under section 552D of the Code that the offender may not be adequately sentenced or if there are exceptional circumstances.

 

As the Magistrates Court deals with offences more quickly and can normally only sentence an offender for up to three years imprisonment, there are potential advantages for a defendant in having a matter dealt with summarily. However, such a course is subject to section 552D, which requires the Magistrate to abstain from exercising its jurisdiction if the offender may not be adequately sentenced or if there are exceptional circumstances.

Online dating rapist sentenced to 10 years

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One suspects the sentence would have been more severe if he hadn’t been suffering from muscular dystrophy, although the guilty plea no doubt also helped:

Callum Joseph Haggerty was slumped in the dock, unable to look at the judge as she delivered her verdict in the Brisbane District court this morning saying that the acts were “despicable”.
On two occasions in 2015, victims were women that he had met online, where he used misleading information to lure them in, claiming he was a wealthy business owner.
He then used physical violence on multiple occasions to overpower the women, resulting in their respective rapes.
While on bail in 2016 for the previous offences he claimed a third victim.
The court heard that Haggerty used language such as, “It could be a lot worse for you” and “suck it up b**ch,” as a means to intimidate and humiliate his victims.
Prosecutor Matthew Hynes said in his submission that the rapist had an “appalling attitude towards women” and that his remarks were “cold blooded”. Continue reading “Online dating rapist sentenced to 10 years”

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