R v MDZ - [2024] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v MDZ [2024] QCA 139

PARTIES:

R
v
MDZ
(applicant)

FILE NO/S:

CA No 167 of 2023
DC No 2388 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 5 September 2023 (McDonnell DCJ)

DELIVERED ON:

2 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2024

JUDGES:

Dalton JA and Bradley and Hindman JJ

ORDER:

The application for leave to appeal against sentence is 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 six counts of rape against children who are his relatives – where the sentence imposed was 10 years on each of counts 4, 5 and 6, with lesser sentences of two years on count 1; five years on count 3 and five years on count 7 – where all sentences were to be served concurrently – where the sentencing judge declared the convictions on counts 4, 5 and 6 were convictions for serious violent offences – where a psychiatric report recorded that the applicant had autism spectrum disorder, personality disfunction, and was sexually abused as a child – where the sentencing judge was told the applicant’s visa would be automatically cancelled following the convictions and sentence for offending against children – whether the sentence was manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – ERROR OF LAW – where the applicant was likely to be deported to New Zealand – where the sentencing judge gave the factor of hardship likely to be caused by deportation limited weight – whether the judge below misapplied the principles relating to hardship as a result of likely deportation

Penalties and Sentences Act 1992 (Qld), s 9(2)(fa), s 9(2)(gb)

R v CBJ (2013) 234 A Crim R 545; [2013] QCA 258, considered
R v GBD (2018) 275 A Crim R 551; [2018] QCA 340, cited
R v KAC[2010] QCA 39, considered
R v Norris; Ex parte Attorney-General (Qld) [2018] 3 Qd R 420; [2018] QCA 27, cited

COUNSEL:

L C Falcongreen for the applicant
S J Gallagher for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

DALTON JA: This is an application for leave to appeal against sentence. The sentence below is said to have been manifestly excessive. Also, a specific error is said to have been made by the District Court judge in applying principles of mitigation due to hardship[1] in a case where it was almost certain that the applicant would be deported after sentence, because of the offending which was the subject of the sentence.
[1]Section 9(2)(fa) Penalties and Sentences Act 1992 (Qld) (PSA).
The Offending
The applicant pled guilty to six counts of rape, all against children, and all against children he was related to.
Count 1…

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 MDZ

Details

AGLC: R v MDZ [2024] QCA 139
Case: [2024] QCA 139
Decision Date: 2 August 2024

CaseChat Overview and Summary

In the matter of R v MDZ, the applicant appealed against the sentence imposed following his guilty plea to six counts of rape against children who are his relatives. The sentence comprised 10 years on each of counts 4, 5 and 6, with lesser sentences of two years on count 1; five years on count 3 and five years on count 7. All sentences were to be served concurrently. The sentencing judge declared the convictions on counts 4, 5 and 6 were for serious violent offences. The applicant was reported to have autism spectrum disorder, personality dysfunction, and a history of being sexually abused as a child. The sentencing judge was informed that the applicant’s visa would be automatically cancelled following the convictions and sentence.

The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge misapplied the principles relating to the hardship likely to result from the applicant's deportation. The applicant argued that the sentence was manifestly excessive given his personal circumstances and the likelihood of deportation to New Zealand. The court had to determine if the sentencing judge gave insufficient weight to the hardship that the applicant would face if deported.

The court found that the sentence was not manifestly excessive. It noted the severity of the crimes and the need for deterrence and denunciation. Regarding the likelihood of deportation, the court held that the sentencing judge did not misapply the principles. The judge had considered the hardship but determined it was not a dominant factor in the sentencing decision. The court concluded that the sentence was appropriate and dismissed the application for leave to appeal against the sentence.

Orders

Orders of the court

The application for leave to appeal against sentence is dismissed.

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 MDZ [2024] QCA 139
PARTIES:	R v MDZ (applicant)
FILE NO/S:	CA No 167 of 2023 DC No 2388 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 5 September 2023 (McDonnell DCJ)
DELIVERED ON:	2 August 2024
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2024
JUDGES:	Dalton JA and Bradley and Hindman JJ
ORDER:	The application for leave to appeal against sentence is 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 six counts of rape against children who are his relatives – where the sentence imposed was 10 years on each of counts 4, 5 and 6, with lesser sentences of two years on count 1; five years on count 3 and five years on count 7 – where all sentences were to be served concurrently – where the sentencing judge declared the convictions on counts 4, 5 and 6 were convictions for serious violent offences – where a psychiatric report recorded that the applicant had autism spectrum disorder, personality disfunction, and was sexually abused as a child – where the sentencing judge was told the applicant’s visa would be automatically cancelled following the convictions and sentence for offending against children – whether the sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – ERROR OF LAW – where the applicant was likely to be deported to New Zealand – where the sentencing judge gave the factor of hardship likely to be caused by deportation limited weight – whether the judge below misapplied the principles relating to hardship as a result of likely deportation Penalties and Sentences Act 1992 (Qld), s 9(2)(fa), s 9(2)(gb) R v CBJ (2013) 234 A Crim R 545; [2013] QCA 258, considered R v GBD (2018) 275 A Crim R 551; [2018] QCA 340, cited R v KAC[2010] QCA 39, considered R v Norris; Ex parte Attorney-General (Qld) [2018] 3 Qd R 420; [2018] QCA 27, cited
COUNSEL:	L C Falcongreen for the applicant S J Gallagher for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent