R v Quzag
[2014] ACTSC 238
•4 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Quzag |
Citation: | [2014] ACTSC 238 |
Hearing Date: | 4 July 2014 |
DecisionDate: | 4 July 2014 |
Before: | Murrell CJ |
Decision: | Conviction recorded. Eleven months’ imprisonment. Periodic detention order for three months. Remainder suspended on entering a good behaviour order for two years and six months. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – perjury – rehabilitation – young offender – parity – guilty plea |
Legislation Cited: | Criminal Code 2002 (ACT) s 703 Crimes (Sentencing) Act 2005 (ACT) s 7, 33 |
Parties: | The Queen (Crown) Nabel Quzag (Offender) |
Representation: | Counsel Mr M Thomas (Crown) Mr A Doig (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 31 of 2014 |
MURRELL CJ:
The offender adheres to a plea of guilty entered at the earliest reasonable opportunity in the Magistrates Court to the offence that on 1 November 2012 he committed perjury during proceedings in the Magistrates Court. This is an offence contrary to s 703(1) of the Criminal Code 2002 (ACT). It carries a maximum available penalty of seven years' imprisonment, 700 penalty units or both.
The offence
On 31 July 2011 police saw Mr Negro driving a blue Subaru. They followed the vehicle and signalled for it to stop. When the vehicle stopped, Mr Alma, the front seat passenger, swapped with Mr Negro and assumed the driver's seat. The offender was sitting in the rear passenger’s seat. Ultimately, police charged Mr Negro with the offence of drive while disqualified.
The offender was called to give evidence before the Magistrates Court. He affirmed that he would tell the truth. In his evidence, he asserted that Mr Negro was not the driver of the vehicle and that Mr Alma was always in the driver's seat. Mr Alma gave evidence to the same effect. The Magistrate found that the charge against Mr Negro was established beyond reasonable doubt and that Mr Alma and the offender had lied when they said that Mr Negro was not the driver.
In October 2013 Mr Alma provided a statement to police in which he made full admissions about Mr Negro being the driver and about having lied in Court. He agreed to assist in relation to Mr Negro.
Subjective circumstances
I accept that Mr Quzag’s motive for lying in the Magistrates Court was misguided loyalty to family and friends. Such a motive is common in offences of this nature. It makes the offence less serious than if the motive had been direct personal gain, but it remains a serious matter.
Apart from the following matter, the offender’s prior criminal history involves a theft matter which resulted in a fine, some driving matters and some other minor matters.
The offender appeared before me in relation to another matter in March this year, when I sentenced him for aiding and abetting the commission of the offence of cultivating a traffickable quantity of cannabis for the purpose of selling it. That offence was committed between September and November 2012, at about the time that the subject offence was committed.
In relation to the drug matter, I imposed a two-year good behaviour order, commencing in March this year. The offender was also required to undertake 220 hours of community service work. Initially, he was not particularly compliant, prioritising his paid work over community service work. However, recently he has become more cooperative and he is now addressing his community service obligations. The offender is working full‑time in the building industry, he resides with his mother and father, and not much more is known of him.
Sentencing purposes
In sentencing the offender, a number of factors must be born in mind. The maximum available penalty of seven years’ imprisonment is a significant penalty that marks the seriousness with which the courts regard conduct of this nature. The offence itself was objectively not insignificant, but also not in the more serious category.
10. The Court must consider the relevant sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT). The Court must also consider the matters set out in s 33 of that Act insofar as they are relevant and known to the Court.
11. I have considered those matters. Relevant sentencing purposes include punishment and general deterrence as well as denunciation. Because the offender is a relatively young man, it is important to bear in mind factors relating to rehabilitation. Recently, the offender has taken a slightly more mature attitude to supervision. The Court hopes that the offender is maturing and considers that the factors that give him stability, such as his employment and residence with his family, should be supported.
12. If the offender was incarcerated for a significant period, he would undoubtedly lose his job, which is important to support a crime free lifestyle. By the same token, it is very important that the Court imposes significant punishment.
Parity
13. I dealt with the perjury proceedings involving Mr Alma on 19 November 2013. I imposed a 12-month suspended sentence and placed Mr Alma on a good behaviour order for 12 months. In the course of sentencing Mr Alma, I indicated that, were it not for his cooperation with authorities, I would have considered directing that at least part of his sentence be served by way of a periodic detention order. I stated that, due to Mr Alma’s cooperation with authorities, I would suspend the whole of the sentence. The sentence of 12 months’ imprisonment reflected a discount for the plea of guilty in the range of 15 to 20 per cent from a starting point of about 14 months’ imprisonment. In relation to Mr Alma I noted that, at least in New South Wales, offences of this nature will result in imprisonment except in exceptional circumstances.
14. There are some minor differences between Mr Alma and the offender in relation to their conduct in the car, their ages and their criminal histories. Overall, there are no significant difference between Mr Alma and the offender. Each gave evidence to exactly the same effect in the Magistrates Court and each was a young man who was part of the family and friendship group of Mr Negro. Each had a relatively minor criminal history.
15. Parity is a very important consideration. I see no reason to depart from the sentence starting point that I employed in relation to Mr Alma of 14 months' imprisonment. A discount of 25 per cent for the early plea in this case brings the sentence down to 11 months’ imprisonment.
16. As for how that sentence should be served, it must be in a way that is more severe than the way in which Mr Alma was directed to serve his sentence. There must be a significant element of punishment. I believe that, by imposing a periodic detention order for part of the sentence, there will be significant punishment, particularly because of the difficulties that the offender will face in juggling employment, community service work and other commitments so as to avoid a breach of the good behaviour order.
17. Otherwise, it is appropriate that I impose a lengthy good behaviour order in relation to the suspended portion of the sentence. That is for two reasons. First, it is necessary to draw a clear distinction between this offender and Mr Alma because of Mr Alma's cooperation. Second, the offender is already on a good behaviour order that will run until March 2016 in relation to the drug matter, and the sentence that I impose today should have an additional impact above and beyond the impact of that order.
Conclusion
18. I record a conviction. I impose a sentence of 11 months' imprisonment. In relation to the sentence of imprisonment, I make a periodic detention order for three months, to start on Friday 11 July 2014 and finish on 10 October 2014. The remaining eight months of the sentence are suspended from 10 October 2014. I make a good behaviour order for a period of two years and six months in relation to that suspended portion of the sentence.
| I certify that the preceding nineteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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