R v Ozdemir - [1993] QCA 463

IN THE COURT OF APPEAL [1993] QCA 463

SUPREME COURT OF QUEENSLAND	C.A. No. 361 of 1993
Brisbane [R. v. Ozdemir]

T H E Q U E E N
v.

ALI OZDEMIR (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

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THE CHIEF JUSTICE
MR JUSTICE PINCUS
MR JUSTICE DAVIES

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J	udgment delivered 22/11/1993

REASONS FOR JUDGMENT - THE COURT
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APPEAL ALLOWED. SET ASIDE THE SENTENCE IMPOSED BELOW. SUBSTITUTE THEREFOR A SENTENCE OF TWO YEARS' IMPRISONMENT WITH A RECOMMENDATION THAT THE RESPONDENT BE ELIGIBLE FOR PAROLE AFTER SERVING NINE MONTHS OF THAT SENTENCE. A WARRANT FOR THE ARREST OF THE RESPONDENT IS TO ISSUE.

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CATCHWORDS: CRIMINAL LAW - SENTENCE - Attorney's appeal against a wholly suspended sentence of two-and- a-half years for civil perjury - Whether s. 9(2)(a) Penalties and Sentences Act 1992 requires non-custodial sentence where substantial custodial term would previously have been warranted - Serious nature of offence and need for deterrence - Sentence of two years with recommendation after nine months substituted

Penalties and Sentences Act 1992, s. 9(2)(a)

Counsel:	Mr P Callaghan for the Appellant
R. Hanson Q.C. with him Mr M. Johnson for the Respondent
Solicitors:	Director of Prosecutions for the Appellant
Dennis McCormack & Associates for the Respondent
Date(s) of Hearing:	11 November 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND	C.A. No. 361 of 1993
Brisbane
Before	The Chief Justice Mr Justice Pincus Mr Justice Davies

[R. v. Ozdemir]

T H E Q U E E N
v.

ALI OZDEMIR (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 22/11/1993

This is an appeal by the Attorney-General against a sentence imposed in the District Court at Bundaberg on 9 September last.

On that date the respondent was sentenced to two and a half years' imprisonment, such sentence being suspended wholly for a period of four years, on two counts of perjury, both on 21 November 1990, during the course of giving evidence in an action instituted by him for personal injuries.

The respondent's personal injuries claim arose out of an alleged accident which he said occurred 27 December 1986 when a car reversed down a driveway and struck him. His claim for injuries arising out of that accident included a claim for loss of earning capacity both before trial and in the future.

The false testimony in respect of which, after a trial, the jury found him guilty of perjury was:

1. That he had not suffered any injury since the incident on 27 December 1986 which prevented him from working for any period of time; and
2. That he did not work for anyone in the year 1990.

As to the first of these, it was established that the respondent had suffered a back injury in June 1987 while lifting a tractor tyre and medical certificates were issued in respect of this injury so that he could claim on insurance for loss of income. It was established also that he lodged…

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 Ozdemir

Details

AGLC: R v Ozdemir [1993] QCA 463
Case: [1993] QCA 463
Decision Date: 22/11/1993

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal by the Attorney-General against a wholly suspended sentence imposed on Ali Ozdemir, who was convicted of civil perjury. Ozdemir was sentenced to two and a half years' imprisonment, with the sentence being wholly suspended for four years, after being found guilty of two counts of perjury during a personal injury claim trial. The appeal focused on the appropriateness of the sentence, given the serious nature of the offence of perjury.

The primary legal issue before the court was whether the sentencing judge should have imposed a non-custodial sentence, as required by section 9(2)(a) of the Penalties and Sentences Act 1992, which stipulates that imprisonment should only be imposed as a last resort and that a sentence allowing the offender to stay in the community is preferable. The court needed to determine whether this legislative directive mandated a non-custodial sentence in perjury cases, despite the traditionally custodial approach to such offences.

The court found that while section 9(2)(a) of the Penalties and Sentences Act 1992 does encourage a more lenient approach in sentencing, it does not preclude the imposition of imprisonment for serious offences such as perjury. The court held that perjury is an offence of serious nature that typically warrants imprisonment to ensure effective deterrence. The court also considered mitigating factors, including Ozdemir's age, lack of prior convictions, recent financial difficulties, and his role as a community leader, which justified a recommendation for parole eligibility after nine months of the two-year sentence.

The Court of Appeal allowed the appeal, set aside the original sentence, and substituted a sentence of two years' imprisonment with a recommendation for parole eligibility after nine months. The court issued a warrant for Ozdemir's arrest to commence serving the sentence.

Orders