R v Marques Malagueta - [2021] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marques Malagueta [2021] QCA 195

PARTIES:

R
v
MARQUES MALAGUETA, Nuno Manuel
(applicant)

FILE NO/S:

CA No 243 of 2020
DC No 1361 of 2020
DC No 1641 of 2020
DC No 1901 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 8 October 2020 (Smith DCJA)

DELIVERED EX TEMPORE ON:

9 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2021

JUDGES:

Morrison and Mullins JJA and Bowskill SJA

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleading guilty to one count of fraud to the value of $30,000 or more (domestic violence offence), one count of attempted fraud to the value of $30,000 or more (domestic violence offence) and one count of unlawful stalking (domestic violence offence) – where the applicant also pleaded guilty to three summary charges: one charge of observations or recordings in breach of privacy, one charge of threats to distribute intimate image or prohibited visual recording and one charge of breach of bail condition – where the sentencing judge imposed a sentence for fraud of imprisonment for four years, to be suspended after serving 14 months for an operational period of four years and made all sentences concurrent – whether the sentences imposed were manifestly excessive

R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited
R v Norris; Ex parte Attorney-General (Qld) [2018] 3 Qd R 420; [2018] QCA 27, cited

COUNSEL:

The applicant appeared on his own behalf
C L Birkett for the respondent

SOLICITORS:

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

MULLINS JA: On 8 October 2020, the applicant pleaded guilty in the District Court to fraud to the value of $30,000 or more (count 1), attempted fraud to the value of $30,000 or more (count 2) and unlawful stalking (count 3). The fraud and attempted fraud were committed on 11 September 2019. The stalking offence was committed between 3 August and 26 November 2019. Each count was a domestic violence offence and it was the same complainant for all counts. He also pleaded guilty to three summary charges: one charge of observations or recordings in breach of privacy committed between 9 August and 23 October 2019 and one charge of threats to distribute intimate image or prohibited visual recording committed between 19 and 23 October 2019 (where both charges were committed against the same complainant) and one charge of breach of bail condition committed on 26 August 2020.
The applicant was sentenced to four years’ imprisonment for count 1, two years’ imprisonment for each of counts 2 and 3 and nine months’ imprisonment for the breach of bail condition. These terms of imprisonment were ordered to be suspended after serving a…

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 Marques Malagueta

Details

AGLC: R v Marques Malagueta [2021] QCA 195
Case: [2021] QCA 195
Decision Date: 9 September 2021

CaseChat Overview and Summary

The case of R v Marques Malagueta involved an appeal against the sentence imposed by the sentencing judge. The applicant had pleaded guilty to multiple offences, including fraud, attempted fraud, and unlawful stalking, all classified as domestic violence offences. Additionally, the applicant had pleaded guilty to three summary charges related to privacy breaches and threats. The sentencing judge imposed a suspended sentence of imprisonment for four years for the fraud charge, with an operational period of four years, and made all sentences concurrent. The applicant sought leave to appeal against the sentence, arguing that it was manifestly excessive.

The legal issues before the court included whether the sentence imposed was manifestly excessive or inadequate. The applicant contended that the sentence was disproportionate to the offences committed. The court had to consider the principles of sentencing, including the nature and circumstances of the offences, the culpability of the offender, and the need for deterrence and rehabilitation. The court also needed to determine whether there were any compelling circumstances that warranted a departure from the usual sentencing practices.

In assessing the applicant's arguments, the court reviewed the severity and nature of the offences, the circumstances in which they were committed, and the applicant's criminal history. The court found that the sentencing judge had appropriately considered the relevant factors and had exercised their discretion within the bounds of reasonableness. The court was satisfied that the sentence imposed was not manifestly excessive and that the judge had balanced the various considerations appropriately. Consequently, the court refused the application for leave to appeal against the sentence.

The final orders of the court were that the application for leave to appeal against the sentence was refused. The sentence imposed by the sentencing judge was upheld, and no further appeal was permitted on the grounds of the sentence being manifestly excessive or inadequate.

Orders

Orders of the court

Application for leave to appeal against sentence 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 Marques Malagueta [2021] QCA 195
PARTIES:	R v MARQUES MALAGUETA, Nuno Manuel (applicant)
FILE NO/S:	CA No 243 of 2020 DC No 1361 of 2020 DC No 1641 of 2020 DC No 1901 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 8 October 2020 (Smith DCJA)
DELIVERED EX TEMPORE ON:	9 September 2021
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2021
JUDGES:	Morrison and Mullins JJA and Bowskill SJA
ORDER:	Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleading guilty to one count of fraud to the value of $30,000 or more (domestic violence offence), one count of attempted fraud to the value of $30,000 or more (domestic violence offence) and one count of unlawful stalking (domestic violence offence) – where the applicant also pleaded guilty to three summary charges: one charge of observations or recordings in breach of privacy, one charge of threats to distribute intimate image or prohibited visual recording and one charge of breach of bail condition – where the sentencing judge imposed a sentence for fraud of imprisonment for four years, to be suspended after serving 14 months for an operational period of four years and made all sentences concurrent – whether the sentences imposed were manifestly excessive R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited R v Norris; Ex parte Attorney-General (Qld) [2018] 3 Qd R 420; [2018] QCA 27, cited
COUNSEL:	The applicant appeared on his own behalf C L Birkett for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent