R v MA - [2012] QCA 317

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ma [2012] QCA 317

PARTIES:

R
v
MA, Qianli
(applicant)

FILE NO/S:

CA No 245 of 2012
DC No 1357 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2012

JUDGES:

Margaret McMurdo P and White JA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to unlawful wounding and was sentenced to 18 months imprisonment, suspended after three months with an operational period of 18 months – where applicant’s counsel below contended for head sentence of 18 months imprisonment – whether sentence manifestly excessive in all the circumstances

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where applicant pleaded guilty to unlawful wounding – where applicant challenged veracity of Schedule of Facts agreed to below – where applicant’s lawyer had taken applicant through Schedule – where applicant had benefit of interpreter and Schedule was explained orally before primary judge – where applicant had been advised his case was not strong – whether applicant’s plea of guilty was made in the exercise of a free choice – whether miscarriage of justice

Criminal Code (Qld), s 323(1)
Migration Act 1950 (Cth), s 501

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited
R v Bob; ex parte Attorney-General (Qld)[2003] QCA 129, cited
R v Cui[2009] QCA 334, considered
R v Frame[2009] QCA 9, cited
R v Kidner[2005] QCA 430, considered
R v Lewis, ex parte Attorney-General (Qld) [2003] QCA 133, considered
R v McDonald[2003] QCA 439, considered

COUNSEL:

The applicant appeared on his own behalf, assisted by an interpreter
D R Kinsella for the respondent

SOLICITORS:

The applicant appeared on his own behalf, assisted by an interpreter
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with White JA’s reasons for refusing this application for leave to appeal against sentence.

WHITE JA: The applicant pleaded guilty in the District Court at Brisbane on 28 August 2012 to one count of unlawful wounding. He was sentenced to 18 months imprisonment to be suspended after serving three months with an operational period of 18 months. The applicant is a Chinese citizen who was, at the time of the incident giving rise to the charges – 22 January 2012 – a student enrolled at the South Bank TAFE studying building design. In his application for leave to appeal his sentence he contends that it is manifestly excessive but his written submissions raise other matters relating to his conviction.

He required the services of an interpreter in Mandarin…

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 MA

Details

AGLC: R v Ma [2012] QCA 317
Case: [2012] QCA 317
Decision Date: 20 November 2012

CaseChat Overview and Summary

The appeal in the matter of R v MA was heard by the court, with the applicant contesting both his conviction and the sentence imposed. The applicant had entered a guilty plea to the charge of unlawful wounding and was sentenced to 18 months imprisonment, suspended after serving three months, with an operational period of 18 months. The applicant’s counsel argued for an 18-month head sentence, but the sentence ultimately imposed was more lenient. The applicant contested the excessiveness of the sentence and also challenged the validity of the guilty plea, claiming a lack of understanding of the Schedule of Facts due to language barriers and the complexity of the case.

The court considered two main legal issues: whether the sentence was manifestly excessive or inadequate, and whether the guilty plea was made in the exercise of a free choice, given the applicant's concerns about the Schedule of Facts. The court examined the circumstances under which the plea was entered, including the applicant's access to an interpreter, the explanation of the Schedule of Facts, and the advice that his case was not strong. The court also assessed the proportionality and appropriateness of the sentence imposed.

Upon reviewing the arguments and the context of the case, the court found that the sentence was not manifestly excessive and that the guilty plea was indeed made in the exercise of a free choice. The court determined that the applicant had been adequately informed and that the plea was made with a full understanding of the consequences. Consequently, the court dismissed the application and upheld both the conviction and the sentence.

The court's final order was that the application was refused, and the conviction and sentence remained intact.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ma [2012] QCA 317
PARTIES:	R v MA, Qianli (applicant)
FILE NO/S:	CA No 245 of 2012 DC No 1357 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	20 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	6 November 2012
JUDGES:	Margaret McMurdo P and White JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant pleaded guilty to unlawful wounding and was sentenced to 18 months imprisonment, suspended after three months with an operational period of 18 months – where applicant’s counsel below contended for head sentence of 18 months imprisonment – whether sentence manifestly excessive in all the circumstances CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where applicant pleaded guilty to unlawful wounding – where applicant challenged veracity of Schedule of Facts agreed to below – where applicant’s lawyer had taken applicant through Schedule – where applicant had benefit of interpreter and Schedule was explained orally before primary judge – where applicant had been advised his case was not strong – whether applicant’s plea of guilty was made in the exercise of a free choice – whether miscarriage of justice Criminal Code (Qld), s 323(1) Migration Act 1950 (Cth), s 501 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, cited R v Bob; ex parte Attorney-General (Qld)[2003] QCA 129, cited R v Cui[2009] QCA 334, considered R v Frame[2009] QCA 9, cited R v Kidner[2005] QCA 430, considered R v Lewis, ex parte Attorney-General (Qld) [2003] QCA 133, considered R v McDonald[2003] QCA 439, considered
COUNSEL:	The applicant appeared on his own behalf, assisted by an interpreter D R Kinsella for the respondent
SOLICITORS:	The applicant appeared on his own behalf, assisted by an interpreter Director of Public Prosecutions (Queensland) for the respondent