The Queen v Sdn - [2021] QCA 158

[2021] QCA 158

COURT OF APPEAL

FRASER JA
McMURDO JA
APPLEGARTH J

CA No 125 of 2021
DC No 1769 of 2020
DC No 1942 of 2020

THE QUEEN

SDN Applicant

BRISBANE

FRIDAY, 30 JULY 2021

JUDGMENT

McMURDO JA: On 29 September 2020, the applicant pleaded guilty to three charges. Two of those offences were committed on 20 February 2020, against his former partner. They were living separately, the applicant living in Brisbane and the complainant and their children living in Townsville. On that day, the applicant and the complainant argued in a series of text messages, in the course of which the applicant made threats to kill the complainant and her parents. He said that he would kill himself and take her and her parents down with him and burn her alive. By making those threats, he committed one of the offences. His conduct was also in breach of a protection order which was imposed in the Magistrates Court on 15 February 2019, which prevented contact with the complainant except for very limited purposes. I will refer to those offences as the domestic violence offences. However, they were not the first offence of that kind which he had committed. At the time, he was subject to a suspended term of four months imprisonment imposed for contraventions of a domestic violence order. That four month term had been imposed on 15 April 2019.

He was charged with the domestic violence offences and became a remand prisoner on 24 February 2020.

The other offence was committed in the Woodford Correctional Centre on 14 April 2020. The applicant and 13 other prisoners defied a direction whilst they were in the exercise yard and a riot ensued. The prisoners barricaded a door and threatened correctional officers. They broke chairs, destroyed phones, armed themselves with makeshift weapons and broke glass windows. They gained access to an officer’s station and removed items, including a computer, phone, notebook and pens. According to an agreed statement of facts, the applicant was actively encouraging the prisoners who initiated the incident, yelling directions and arming himself with a metal pole with which he was involved in damaging glass windows.

Within a few hours, the incident had been shut down and the applicant and the other prisoners involved were taken to what is called the detention unit. The applicant was convicted of and sentenced for an offence of taking part in a riot in a corrective services facility and wilfully and unlawfully damaging property during the riot.

The applicant was sentenced to four years’ imprisonment for the riot offence and 12 months’ imprisonment for each of the domestic violence offences. The terms were ordered to be served concurrently. Parole eligibility was set at 23 February 2021, which was after he had served 12 months, allowing for his time in pre-sentence custody.

The applicant remains in custody and he has therefore served the terms for the domestic violence offences. He applies for leave to appeal against the four year sentence…

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 The Queen v Sdn

Details

AGLC: The Queen v Sdn [2021] QCA 158
Case: [2021] QCA 158
Decision Date: 30 JULY 2021

CaseChat Overview and Summary

The case of The Queen v Sdn involved the applicant appealing against the four-year sentence for taking part in a riot in a corrective services facility and wilfully and unlawfully damaging property during the riot, which he committed in the Woodford Correctional Centre. The applicant had already served the terms for the domestic violence offences, for which he was sentenced to 12 months' imprisonment, and was seeking a reduction in his sentence for the riot offence. The appeal was heard by McMurdo JA, Fraser JA, and Applegarth J in the Court of Appeal.

The legal issues before the court were whether the sentence for the riot offence was manifestly excessive and whether there was a disparity between the sentence imposed on the applicant and the sentences imposed on his co-offenders. The court considered the sentencing submissions made at the original hearing and the subsequent sentences imposed on the co-offenders. The applicant argued that a sentence of two to two and a half years, with parole release after serving one-third of the term, was appropriate.

The court found that the applicant could feel a sense of grievance about the outcome in his case when considering the sentences received by his co-offenders. While the domestic violence offences were serious and warranted terms of actual imprisonment, the judge might have imposed concurrent terms for those offences of the order of 18 months and a cumulative term for the riot offence while activating the suspended sentence as she did. However, a sentence of two and a half years for the riot offence could not have stood with the sentences subsequently imposed upon his co-offenders. The court concluded that a cumulative term of 18 months would have been the appropriate sentence, and therefore, the applicant should serve a period of imprisonment of no more than three years.

The court granted leave to appeal, allowed the appeal, varied the sentence for the riot offence to one of three years imprisonment, and ordered that the applicant be released immediately, that is to say, that his parole release date be varied to 30 July 2021. Fraser JA and Applegarth J agreed with the decision of McMurdo JA.

Orders