R v. Nimmett - [2008] QCA 323

COURT OF APPEAL

HOLMES JA
FRASER JA
McMEEKIN J

CA No 226 of 2008

THE QUEEN

and

PATRICIA KAREN NIMMETT

Applicant

BRISBANE

DATE 16/10/2008

JUDGMENT

HOLMES JA: I will ask Justice Fraser to give the first set of reasons.

FRASER JA: On 8 August 2008, the applicant was convicted on her pleas of guilty of four counts of perjury. On all counts the applicant was sentenced to imprisonment for 18 months concurrent and it was ordered that the applicant be released on parole on 8 December 2008, after serving four months of the sentence. The applicant seeks leave to appeal against that sentence.

On 10 December 2006, the applicant's de facto partner, Graham, raped, abducted and robbed Ms P. Graham was arrested and charged with that offence on 11 February 2007. He was given bail. The police, having spoken to the applicant about Graham's possible involvement in the offence, were evidently dissatisfied with the applicant's version of events and a Crime & Misconduct Commission hearing was arranged. In that hearing the applicant made four statements exculpatory of Graham, which founded the four charges of perjury against her.
On 8 September 2007 Graham committed offences against another two women. Police then came to Graham's and the applicant's house, searched the premises, and arrested Graham for those offences. Two days after that the applicant contacted police to make arrangements for a further recorded interview. That occurred on 12 September 2007 when the applicant made statements in effect admitting that her earlier statements in the investigative hearing were false, and she gave a truthful account which inculpated Graham in the offence he had committed on 10 December 2006.

In summary, the applicant gave evidence in the commission hearing that she had gone to bed that night with Graham and that to her knowledge he had remained in bed with her during most of the night, but she later admitted that Graham had not been there for much of the night; in the commission hearing, she gave an inaccurate description of the clothing Graham was wearing that night; and she gave evidence in the commission hearing that Graham denied having committed the rape on 10 December 2006 but she later told police that Graham admitted that he had been at the complainant's house and had given the applicant an implausible story denying involvement in the offence.

On 21 September 2007, the applicant was charged with perjury. On 23 September 2007, she provided police with a witness statement to be used against Graham which again contained a truthful account of the events and thus contained further admissions of her earlier perjury in the commission hearing.

At the sentence hearing the prosecutor relayed instructions from the officer who had arrested Graham to the effect that the applicant's evidence was "the icing on the cake"; and that it made what was "perhaps an equivocal circumstantial case" against Graham an overwhelming case and resulted in Graham's pleas of guilty to the subsequent offences.

The applicant was 34 years…

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. Nimmett

Details

AGLC: R v Nimmett [2008] QCA 323
Case: [2008] QCA 323
Decision Date: 16 October 2008

CaseChat Overview and Summary

In the case of the Queen versus Patricia Karen Nimmett, the applicant was convicted on her pleas of guilty of four counts of perjury and was sentenced to imprisonment for 18 months concurrent with a release on parole after serving four months of the sentence. The applicant sought leave to appeal against the sentence imposed. The applicant gave false testimony in a commission hearing that exculpated her de facto partner, Graham, who had been charged with raping, abducting, and robbing a woman. The police, dissatisfied with the applicant's version of events, arranged a Crime and Misconduct Commission hearing where the applicant made four statements that were exculpatory of Graham. These statements founded the four charges of perjury against the applicant. The applicant later admitted that her earlier statements in the commission hearing were false and inculpated Graham in the offence he had committed.

The court was required to decide whether the sentencing judge erred in imposing a sentence of imprisonment on the applicant. The applicant argued that the sentencing judge did not sufficiently take into account the applicant's voluntary confession of her earlier perjury at a time when she was not apparently the subject of a police investigation for perjury. The applicant also contended that insufficient weight was given to her willingness to assist the police in their investigation of Graham's offences and the value of her cooperation in the prosecution of Graham. The applicant further argued that the sentencing judge erred by concluding that the applicant's false evidence weakened the Crown case and gave Mr Graham some hope of acquittal.

The court found that the sentencing judge was alive to the importance of the applicant's voluntary confession of her earlier perjury and took it into account in imposing the sentence. The court also found that the sentencing judge appropriately considered the applicant's willingness to assist the police in their investigation of Graham's offences and the value of her cooperation in the prosecution of Graham. The court further found that the sentencing judge correctly concluded that the applicant's false evidence weakened the Crown case and gave Graham some hope of acquittal. The court concluded that the sentence of 18 months imprisonment was at the low end of the range and was within the sentencing judge's discretion to require the applicant to serve four months in actual custody. The court found that the sentence was not manifestly excessive and dismissed the application for leave to appeal against sentence.

In conclusion, the Court of Appeal dismissed the application for leave to appeal against sentence. The court found that the sentencing judge appropriately considered all the relevant factors in imposing the sentence and that the sentence was not manifestly excessive.

Orders