R v MDN - [2022] QCA 124

[2022] QCA 124

COURT OF APPEAL

MULLINS P
MORRISON JA
BODDICE J

CA No 93 of 2022
DC No 9 of 2022

MDN Applicant

BRISBANE

WEDNESDAY, 13 JULY 2022

JUDGMENT

MULLINS P: The applicant pleaded guilty on 19 April 2022 to one count of attempting to pervert justice. The particulars of the count were that on 10 March 2020 he signed an affidavit which he knew was false.
The agreed statement of facts included the following. The applicant’s brother assaulted his partner at the address at which they were residing at about 6.00 am on 4 March 2020. The applicant’s brother telephoned the applicant who attended at that address and drove his brother away. On 6 March 2020, the brother was charged with offences arising out of the assault and was remanded in custody. On 10 March 2020, the brother applied for bail, relying on an affidavit from the applicant in which the applicant swore that on 3 March 2020 his brother was home with him, his brother went to bed at 9.00 pm that night, and the applicant went to bed after that. The applicant swore that when he woke up at approximately 5.00 am the next day, his brother was still asleep and came out of his room at approximately 7.30 am. They left home at approximately 9.00 am with the applicant driving his brother to a Centrelink office. The applicant swore that at no stage on 4 March 2020 did his brother go to the place where his partner was living (which had the effect of giving his brother a false alibi). The application by his brother for bail was refused and his brother pleaded guilty on 11 March 2021 to the offences committed on 4 March 2020.
The applicant was sentenced to imprisonment for 15 months to be suspended after serving five months in custody for an operational period of two years.
The applicant applies for leave to appeal on the ground that the sentence is manifestly excessive. The applicant appears on his own behalf on this application. In his written outline, he explains that a woman was charged on the same date as him with the same offence and was remanded in custody and served 62 days. He asserts that she pleaded guilty to attempting to pervert justice and additional charges and did not receive any further custodial component than the 62 days she had already served. He asserts that his lawyer was supposed to mention the woman’s sentence as part of the submissions before the sentencing judge and did not and also relies on the fact that the prosecutor at the sentencing did not inform the sentencing judge of the woman’s sentence.
Leave was given to the respondent at the hearing of this application to adduce the affidavit of Ms Gillies sworn on 7 July 2022 which exhibits the transcript of the hearing before the learned magistrate who sentenced the woman on 8 June 2021, the transcript of the sentencing remarks and…

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 MDN

Details

AGLC: R v MDN [2022] QCA 124
Case: [2022] QCA 124
Decision Date: 13 JULY 2022

CaseChat Overview and Summary

In the case of R v MDN, the applicant, who pleaded guilty to attempting to pervert justice by signing a false affidavit, applied for leave to appeal the sentence imposed by the sentencing judge. The applicant claimed the sentence was manifestly excessive, arguing it was disproportionate to the sentence received by another individual who committed a similar offence. The applicant's brother was charged with assault, and the applicant's affidavit, which provided a false alibi for his brother, was used in his brother's bail application. The sentencing judge sentenced the applicant to 15 months' imprisonment, suspended after serving five months, for an operational period of two years. The applicant argued that a woman who committed a similar offence received a lesser sentence and should have been brought to the sentencing judge's attention.

The court had to determine whether the sentence imposed was manifestly excessive. The court considered the principles of sentencing and the relevant authorities, including R v Maxwell and R v Getawan, which supported a sentence in the order of 15 months' imprisonment for the offence. The court also noted that the applicant's guilty plea was recognised by suspending the sentence after the applicant had served one-third of the sentence in custody. The court held that there was no basis to conclude that the sentence was unreasonable or plainly unjust, and therefore, the application for leave to appeal was refused.

The Court of Appeal, comprising Mullins P, Morrison JA, and Boddice JCA, unanimously agreed that the application for leave to appeal should be refused. The court found that the sentence imposed was appropriate in the circumstances of the offending and the applicant's personal circumstances. The applicant was informed that the order of the Court was the refusal of the application for leave to appeal.

Orders