Supreme Court at Rockhampton – Date of Sentence: 12 September 2023 (Crow J)
DELIVERED ON:
14 June 2024
DELIVERED AT:
Brisbane
HEARING DATE:
4 April 2024
JUDGES:
Morrison and Dalton JJA and Davis J
ORDER:
The application for leave to appeal against sentence be dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to attempted murder – where the applicant attempted to choke the complainant – where the applicant desisted – where the sentencing judge found that by the time the applicant desisted he thought the complainant was deceased – where by force of s 538 of the Criminal Code the maximum sentence was thereby life imprisonment – where the sentencing judge imposed a sentence of nine years imprisonment – whether the sentencing judge erred in finding that the applicant believed the complainant to be deceased before he desisted – whether the sentence is manifestly excessive in all the circumstances
APPEAL AND NEW TRIAL – RIGHT OF APPEAL – SCOPE AND EFFECT OF APPEAL – where the applicant sought leave to appeal against his sentence – where the applicant sought to challenge a finding of fact made by the sentencing judge – whether the appeal was a strict appeal – whether the applicant must establish that the sentencing judge’s finding was not open – whether the finding was open – whether the finding was correct – whether the finding ought be set aside
[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.
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Details
AGLC
R v MDU [2024] QCA 113
Case
[2024] QCA 113
Decision Date
CaseChat Overview and Summary
In the case of R v MDU, the applicant, MDU, sought leave to appeal against his sentence following his guilty plea to an attempted murder charge. The applicant had attempted to choke his estranged wife, LT, and desisted from further action. The sentencing judge found that by the time the applicant desisted, he believed LT to be deceased. The maximum sentence for the offence was therefore life imprisonment, but the sentencing judge imposed a nine-year imprisonment term. The applicant argued that the sentence was manifestly excessive and that the sentencing judge had erred in finding that he believed LT to be deceased before he desisted. Additionally, the applicant sought to challenge a finding of fact made by the sentencing judge, which related to the scope and effect of the appeal.
The court had to decide whether the sentencing judge's finding that the applicant believed LT to be deceased before he desisted was open and, if so, whether it was correct. The court also had to determine whether the sentence was manifestly excessive in all the circumstances, considering the applicant's belief that LT was deceased. Furthermore, the court examined whether the applicant's appeal was a strict appeal, requiring him to establish that the sentencing judge's finding was not open, or whether the finding was open and correct. The court's reasoning focused on the specific circumstances of the case, including the nature of the offence, the applicant's belief at the time of desistance, and the overall sentence imposed.
The court found that the sentence imposed could not be demonstrated to be manifestly excessive for the reasons given by Dalton JA and Davis J. The court concluded that the sentencing judge's finding that the applicant believed LT to be deceased before he desisted was both open and correct. The court also determined that the appeal was not a strict appeal but rather an appeal that required the applicant to establish that the sentencing judge's finding was not open. However, since the finding was open and correct, the appeal was unsuccessful. The application for leave to appeal against the sentence was therefore dismissed.
ORDERS:
The application for leave to appeal against sentence be dismissed.
Orders
Orders of the court
The application for leave to appeal against sentence be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Subject to what I have said above, the sentence imposed cannot be demonstrated to be manifestly excessive for the reasons given by Dalton JA and Davis J in paragraphs [114]-[138] below.Conclusion The application for leave to appeal against the sentence should be refused. DALTON JA AND DAVIS J: The applicant, MDU, applies for leave to appeal against a sentence imposed on him upon conviction for one count of attempting to murder his estranged wife. On 12 September 2023, the applicant pleaded guilty to the following count:“that on the seventh day of March, 2022 at [a country town] in the State of Queensland, MDU attempted unlawfully to kill LT.And the offence is a domestic violence offence.”[33][33]Penalties and Sentences Act1992, ss 9(10A), 12. Count 2 on the indictment charged the applicant with choking the complainant in a domestic relationship[34] but that was charged as an alternative to count 1. The Crown did not proceed on count 3, a charge of attempting to pervert the course of justice[35], although an agreed statement of facts tendered at the sentence recited the facts which appear to arguably support that charge.[34]Criminal Code, s 315A.[35]Criminal Code, s 140. The applicant was sentenced to nine years’ imprisonment. No declaration was made that the offence was a serious violent offence[36] and parole eligibility was set at 6 March 2026[37]. As the applicant had been in custody since the date of the commission of the offence, the setting of parole eligibility at 6 March 2026 required the applicant to serve four years of the sentence before being eligible for parole. The time spent in pre-sentence custody (554 days) was declared as time served on the sentence.[36]Penalties and Sentences Act1992, Part 9A.[37]Penalties and Sentences Act1992, s 160C. The grounds of appeal appear in the application as:a)the sentence is manifestly excessive in all circumstances (ground 1);b)the learned sentencing judge erred in finding s 538 Criminal Code 1899 did not apply (ground 2); andc)the learned sentencing judge erred in finding there was no special leniency to be applied to his sentence as a result of his admissions (ground 3). Ground 3 was not pressed independently. The complaint articulated in ground 3 was advanced in support of ground 1. The success or otherwise of ground 2 is relevant to the determination of ground 1 so it is convenient to commence with a consideration of ground 2. Ground 2 concerns the application of s 538 of the Code. It provides:“538 Reduction of punishment(1)When a person is convicted of attempting to commit an offence, if it is proved that the person desisted of the person’s own motion from the further prosecution of the person’s intention, without its fulfilment being prevented by circumstances independent of the person’s will, the person is liable to one-half only of the punishment to which the person would otherwise be liable.(2)If the punishment to which the person would otherwise be liable for the attempt is imprisonment for life, the greatest punishment to which the person is liable is imprisonment for 14 years.”