R v MDU

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.