R v Aggarwal

[2001] QCA 492

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R v Aggarwal [2001] QCA 492 (7 November 2001)

Last Updated: 5 December 2001

[2001] QCA 492

COURT OF APPEAL

McMURDO P

McPHERSON JA

CHESTERMAN J

CA No 146 of 2001

THE QUEEN

v.

ANITA AGGARWAL

BRISBANE

..DATE 07/11/2001

JUDGMENT

THE PRESIDENT: This is an application by the Commonwealth DPP to reopen the respondent's sentencing proceedings in this Court on 16 October 2001.

In the District Court on 15 June the respondent pleaded guilty to attempting to pervert the course of justice. In that Court and in this Court on 16 October the respondent was sentenced on the basis that in part she had approached one Ms Slack at the instigation of her father. As a result a more lenient approach was taken to her sentence. She was sentenced in the District Court to four months' imprisonment. In this Court the application for leave to appeal against sentence was granted, the appeal was allowed and the sentence below was altered to the extent of ordering that the applicant be released forthwith upon her own recognisance in the sum of $1,000 that she be of good behaviour for a period of four months.

On 30 October and on 1 November in the District Court at the trial of her father on the substantive offence, the respondent gave evidence that she had not gone to see Ms Slack at the instigation of her father. This was contrary to what was said on her behalf in the District Court and contrary to the basis upon which she was re-sentenced in this Court.

It therefore seems that she was sentenced in this Court on the basis of a clear factual error of substance under the Penalties and Sentences Act s.188(1)(c) (Qld).

It was because she approached Ms Slack primarily to assist her father, and at the instigation of her father, that her sentence was reduced in this Court. Had what she said in the District Court been incorrect, and had this Court been told the version which she provided to the District Court upon the trial of her father, her appeal may well have been dismissed.

The applicant proposes a number of orders but most urgently wants the sentence reopened. This would mean that the respondent would effectively again be either remanded in custody or placed on bail pending appeal.

The applicant wishes it a condition of any bail granted that the respondent surrender her passport and that she not apply for any passport. The respondent was born in India and has significant ties in India although she is now an Australian citizen. In affidavit material placed before us this morning the respondent claims she wishes to go to India to visit her mother-in-law. A photocopied medical certificate states that her mother-in-law is suffering from cancer, is very ill and needs family support.

It seems somewhat curious that the respondent's husband, (the patient's son) is too busy because of work commitments to leave although from comments made from the Bar table there may be other reasons as to why the patient's son does not wish to leave Australia.

The respondent has undertaken in an affidavit to return to the jurisdiction within 48 hours of being called upon to meet the reopening proceedings which the applicant seeks to adjourn today.

In my view, the proceedings should be reopened under s.188(1)(c) and the respondent should be remanded on bail on condition that she surrender her passport and that she not apply for any passport.

I would propose the following orders:

1. That the application for reopening presently pending in the District Court be removed to this Court;

2. That the proceedings in this Court on 16 October 2001 for sentencing the respondent be reopened;

3. Adjourn the further hearing of the sentencing proceedings to a date to be fixed; and

4. Remand the respondent on bail on her own undertaking on condition that she surrender her passport and that she not apply for any passport.

McPHERSON JA: I agree.

CHESTERMAN J: I agree.

THE PRESIDENT: That is the order.

MR HANSON: And would your Honour just specify where the passport is to be surrendered to? So far it has been held by the Commonwealth DPP. Is it appropriate that it be surrendered to the Registrar of this Court? Or is the Court content for the Commonwealth DPP to hold it?

THE PRESIDENT: That was the condition of the surrender that Justice Helman gave, wasn't it, to the Commonwealth DPP?

MR HANSON: To the DPP, it was.

THE PRESIDENT: To the Commonwealth DPP.

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