R v Getawan - [2014] QCA 235

SUPREME COURT OF QUEENSLAND

CITATION:

R v Getawan [2014] QCA 235

PARTIES:

R
v
GETAWAN, Henry Raymond
(applicant)

FILE NO/S:

CA No 118 of 2014
DC No 523 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

19 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2014

JUDGES:

Holmes and Morrison JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE – PERVERTING THE COURSE OF JUSTICE – where the applicant pleaded guilty to one count of attempting to pervert justice – where the applicant was sentenced to 15 months’ imprisonment with immediate parole – where the applicant had been charged with offences including burglary and attempted robbery – where the applicant, while on remand, made numerous telephone calls to his 18 year old fiancée to urge her to dissuade her sister and another friend by threats from giving evidence against him – where the applicant’s fiancée did not communicate the threats to the other girls, both of whom gave evidence at the applicant’s trial – where the applicant was acquitted – where the applicant contends that the sentencing judge was prejudiced against him – where the applicant contends the sentencing judge did not take into account his early plea of guilty, other mitigating circumstances and the fact the immediate parole release date would have no impact because he faced other charges – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 159A(4A)

R v Harnden[2003] QCA 340, considered

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES JA: Having pleaded guilty, the applicant was convicted of one count of attempting to pervert justice and was sentenced to 15 months’ imprisonment with immediate parole. He seeks leave to appeal that sentence on the ground that it is manifestly excessive.

The offence

In September 2011, indictments were presented against the applicant for offences including burglary and attempted robbery. Three other people were also charged: the applicant’s then 16 year old fiancée, T; her 15 year old sister, M; and their 17 year old friend, C, who had been in a relationship with their brother. After being charged, all three young women gave accounts to police admitting their involvement in the offences and implicating the applicant.

Between 30 April 2013 and 27 May 2013, the applicant, who was remanded in custody at that time, made a number of telephone calls to T (by this time aged 18 years old), which were monitored. In those calls, he attempted to pervert the course of justice by urging T to speak to M and C in order to discourage them from…

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 R v Getawan

Details

AGLC: R v Getawan [2014] QCA 235
Case: [2014] QCA 235
Decision Date: 19 September 2014

CaseChat Overview and Summary

In the matter of R v Getawan, the applicant stood convicted of attempting to pervert the course of justice, a charge stemming from his actions while on remand. He had been remanded for a series of other serious offences, including burglary and attempted robbery. While in custody, the applicant made several phone calls to his fiancée, urging her to dissuade her sister and another friend from giving evidence against him by making threats. Although the fiancée did not communicate these threats to the witnesses, both the sister and the friend testified at the applicant's trial. Despite the applicant's acquittal on the original charges, he pleaded guilty to the charge of attempting to pervert the course of justice and was sentenced to 15 months’ imprisonment with immediate parole.

The primary legal issue before the court was whether the sentence imposed by the sentencing judge was manifestly excessive. The applicant argued that the judge was prejudiced against him and failed to consider several mitigating factors, including his early guilty plea, his fiancée's lack of communication of the threats, and the fact that his immediate parole release date would not impact him as he faced other charges. The applicant contended that the sentence was excessive and disproportionate to the offence committed.

The court found that the sentencing judge had considered all relevant factors, including the applicant's plea of guilty and other mitigating circumstances. The court was satisfied that the sentence was within the appropriate range for the offence of attempting to pervert the course of justice and was not manifestly excessive. The court concluded that the sentencing judge had exercised proper judicial discretion in imposing the sentence and that the applicant's contentions of bias and failure to consider mitigating factors were unfounded. Therefore, the application for leave to appeal against the sentence was refused.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Getawan [2014] QCA 235
PARTIES:	R v GETAWAN, Henry Raymond (applicant)
FILE NO/S:	CA No 118 of 2014 DC No 523 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	19 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2014
JUDGES:	Holmes and Morrison JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE – PERVERTING THE COURSE OF JUSTICE – where the applicant pleaded guilty to one count of attempting to pervert justice – where the applicant was sentenced to 15 months’ imprisonment with immediate parole – where the applicant had been charged with offences including burglary and attempted robbery – where the applicant, while on remand, made numerous telephone calls to his 18 year old fiancée to urge her to dissuade her sister and another friend by threats from giving evidence against him – where the applicant’s fiancée did not communicate the threats to the other girls, both of whom gave evidence at the applicant’s trial – where the applicant was acquitted – where the applicant contends that the sentencing judge was prejudiced against him – where the applicant contends the sentencing judge did not take into account his early plea of guilty, other mitigating circumstances and the fact the immediate parole release date would have no impact because he faced other charges – whether the sentence was manifestly excessive Penalties and Sentences Act 1992 (Qld), s 159A(4A) R v Harnden[2003] QCA 340, considered
COUNSEL:	The applicant appeared on his own behalf B J Power for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent