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- Unreported Judgment
R v Marques Malagueta QCA 195
SUPREME COURT OF QUEENSLAND
R v Marques Malagueta  QCA 195
MARQUES MALAGUETA, Nuno Manuel
CA No 243 of 2020
DC No 1361 of 2020
DC No 1641 of 2020
DC No 1901 of 2020
Court of Appeal
District Court at Brisbane – Date of Sentence: 8 October 2020 (Smith DCJA)
9 September 2021
9 September 2021
Morrison and Mullins JJA and Bowskill SJA
Application for leave to appeal against sentence refused.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after pleading guilty to one count of fraud to the value of $30,000 or more (domestic violence offence), one count of attempted fraud to the value of $30,000 or more (domestic violence offence) and one count of unlawful stalking (domestic violence offence) – where the applicant also pleaded guilty to three summary charges: one charge of observations or recordings in breach of privacy, one charge of threats to distribute intimate image or prohibited visual recording and one charge of breach of bail condition – where the sentencing judge imposed a sentence for fraud of imprisonment for four years, to be suspended after serving 14 months for an operational period of four years and made all sentences concurrent – whether the sentences imposed were manifestly excessive
R v Nagy  1 Qd R 63;  QCA 175, cited
R v Norris; Ex parte Attorney-General (Qld)  3 Qd R 420;  QCA 27, cited
The applicant appeared on his own behalf
C L Birkett for the respondent
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- MULLINS JA: On 8 October 2020, the applicant pleaded guilty in the District Court to fraud to the value of $30,000 or more (count 1), attempted fraud to the value of $30,000 or more (count 2) and unlawful stalking (count 3). The fraud and attempted fraud were committed on 11 September 2019. The stalking offence was committed between 3 August and 26 November 2019. Each count was a domestic violence offence and it was the same complainant for all counts. He also pleaded guilty to three summary charges: one charge of observations or recordings in breach of privacy committed between 9 August and 23 October 2019 and one charge of threats to distribute intimate image or prohibited visual recording committed between 19 and 23 October 2019 (where both charges were committed against the same complainant) and one charge of breach of bail condition committed on 26 August 2020.
- The applicant was sentenced to four years’ imprisonment for count 1, two years’ imprisonment for each of counts 2 and 3 and nine months’ imprisonment for the breach of bail condition. These terms of imprisonment were ordered to be suspended after serving a period of 14 months’ imprisonment with an operational period of four years. He was convicted and not further punished in respect of the other two summary charges. All sentences were ordered to be served concurrently. A pre-sentence custody declaration was made in respect of the 43 days spent in custody between 26 August and 7 October 2020. A restraining order pursuant to s 359F of the Criminal Code (Qld) that prevented the applicant from any contact with the complainant for a period of five years was also made by the sentencing judge.
- The applicant was represented by counsel and solicitor before the sentencing judge, but appears for himself on this application.
- It should be noted at the outset that the suspended terms of imprisonment will result in the applicant’s release from custody in respect of serving these sentences on 25 October 2021 which is a little over six weeks from the hearing of this application.
- The ground for seeking leave to appeal that was set out in the applicant’s application is that the sentence is manifestly excessive. To the extent that the applicant’s written submissions cannot be dealt with under the ground that the sentence is manifestly excessive, they seek to add grounds for making the application.
The applicant’s antecedents
- The applicant is a Portuguese citizen and it is anticipated that on his release from custody in serving the subject sentences, he will be put into immigration detention to await deportation.
- The applicant came to Australia from Portugal, accompanied by his wife and son, to work in Australia as a carpenter and then moved to transport supervision. He suffered a workplace injury and became unemployed and his relationship with his wife broke down. His wife eventually returned to Portugal with their son in August 2019.
- The applicant was aged 41 to 42 years during the offending. He had no prior criminal history.
- At the sentencing hearing, the applicant relied on a report from psychologist Mr Jorge Lopez dated 12 August 2020. The report noted as follows. The applicant started attending cognitive behaviour therapy sessions on 11 May 2016 with the aim of addressing symptoms of depression and anxiety associated with the workplace injury and supporting his wife through the challenges of cancer treatment. He continued to attend therapy in 2018 after a period of increased life stresses resulting from the break up with his wife and not being allowed to see his son, because of ongoing conflicts with his wife. The applicant’s symptoms and behaviour were consistent with those of adjustment disorder with mixed anxiety and depression in the context of experienced traumas associated with relationship problems. The applicant attended therapy requesting further psychological support on 3 June 2020 in relation to his approaching court appearance.
- The applicant was in a relationship with the complainant from February 2018 to early August 2019 and moved into the complainant’s home in late June 2018. They shared the rent equally and a joint account was set up for this purpose. Their relationship began to deteriorate from February 2019 and the complainant asked the applicant to move out of the house on 4 August 2019 which he did two days later. The complainant allowed the applicant to return to the house for the weekend of 10 and 11 August 2019, when he had care of his son.
- The particulars of the stalking included the applicant installing surveillance equipment in the kitchen of the complainant’s house, setting up surveillance devices in the complainant’s bedroom and lounge room, installing a remote monitoring application on the complainant’s mobile phone without her consent, sending harassing, threatening and explicit emails and messages to the complainant and threatening to disseminate intimate images of her.
- On 10 August 2019, the complainant detached a camera from a light bulb in the kitchen which was found by the police to contain hundreds of short video files dating from 8 August 2019. That was one aspect of the breach of privacy summary charge.
- In late August 2019 the applicant flew to Portugal, but then returned to Australia on 3 September 2019 to attend court in relation to the custody of his son. The applicant stayed in a hotel at this time.
- The fraud offence was committed by the applicant accessing the complainant’s bank account which was in her name and he transferred $40,000 to their joint account and then immediately transferred the sum of $40,000 from the joint account to his personal account. He attempted to transfer a second payment of $40,000, but that transfer failed. The applicant spent the sum of $40,000 that he took from the complainant on family in Portugal and general living expenses. The bank reimbursed the complainant the sum of $40,000.
- The complainant backed-up her mobile phone on 14 September 2019 and reset it and, as a result, noticed the application “mSpy” was installed on her phone. The phone had been a gift from the applicant in July 2019 and the applicant did the initial set up of the phone, but installed the spy software without the complainant’s permission.
- On 17 September 2019 the complainant located two further hidden cameras in her home that were also the subject of the breach of privacy summary charge and the recordings on these devices dated from 11 September 2019. The lounge room camera had 2,105 files recorded and the bedroom camera had 2,406 files recorded. The devices could be accessed by the applicant remotely. After finding these devices, the complainant called the police.
- There was an exchange of emails between the applicant and the complainant on 20 to 22 October 2019. The applicant attached explicit photos to prove that he could carry out the threat in the emails that he would send the photos to some of the complainant’s friends, family and work colleagues. This exchange of emails was the subject of the threats to distribute image summary charge. There were further emails sent by the applicant to the complainant on 6 and 25 November 2019. By 6 November 2019 the applicant had returned to Portugal. The applicant was arrested at the Brisbane airport on 6 February 2020 upon his return to Australia and was granted bail on conditions which included the surrender of his passport.
- His sentencing was originally listed for 28 August 2020, but on 26 August 2020 the applicant was caught at the Brisbane international airport trying to board a flight. He had arranged for a new passport as early as 20 February 2020. He therefore breached the bail condition not to apply for a replacement or any other passport.
The sentencing remarks
- The sentencing judge noted the pleas of guilty reduced the penalties that would otherwise have been imposed, recited the applicant’s antecedents and summarised the facts of the offending. The sentencing remarks also included the following. Deterrence and denunciation were relevant. It was an aggravating feature of counts 1-3 that they were domestic violence offences. The principles regarding deportation and immigration detention mentioned in R v Norris; Ex parte Attorney-General (Qld)  3 Qd R 420 and the totality principle applied. There was a reasonable length of stalking period which continued after the police were involved, but there was no actual violence involved. There was a degree of lack of remorse by the attempt of the applicant to flee Australia immediately before his sentence was originally listed for hearing.
- The sentencing judge noted that the applicant had claimed to Mr Lopez that he installed cameras in the home to see if the complainant was abusing his son, but the sentencing judge rejected that explanation, as they were left running after the son had left the country. There was a real likelihood that the applicant would be deported, but the applicant wanted to return to Portugal, because his son was there. Consistent with the applicant’s counsel’s submission before the sentencing judge, the applicant would have a difficult time in custody, even apart from COVID issues, as the applicant had no one to visit him and he was going to be separated from his son for a significant period.
- The sentencing judge considered a sentence of three years’ imprisonment was appropriate for the fraud, up to two years’ imprisonment for the stalking and then a cumulative term for the breach of bail which was a serious example of that type of offence. Taking into account the mental health diagnosis, the early pleas of guilty and the totality principle resulted in the imposition of a sentence of four years’ imprisonment on count 1 (to reflect the overall criminality of the applicant’s offending) with the suspension of the sentences after the applicant had served 14 months in actual custody (which was at slightly less than one-third of the effective head sentence).
Were the sentences manifestly excessive?
- The applicant relies on comparable sentences for fraud involving a similar quantum to $40,000 and submits that the sentence of four years for fraud is excessive. On the basis of comparable authorities for sentences for stalking, the applicant submits the sentence of two years for stalking is excessive.
- As was noted by the sentencing judge, the remorse that would have otherwise been reflected by the applicant’s early guilty pleas was diminished by his attempt to flee Australia in August 2020. In addition, the applicant was not able to offer to repay any part of the sum of $40,000 which he took from the complainant’s account. The complainant is not out of pocket for that sum, because her bank replaced the funds.
- The applicant relies on the fact that some sentences imposed in the Trial Division, particularly early in 2020 at the commencement of the COVID-19 lockdowns, reduced actual custodial time to reflect greater hardship experienced by prisoners in being locked down. The sentencing judge was clearly cognisant that conditions for the applicant were harder in prison in not having any visitors, as his family were in Portugal, and considered that of greater significance than the COVID issues which reflected the submission made on behalf of the applicant at the sentencing.
- Instead of imposing a cumulative sentence for the breach of bail which was a course open to the sentencing judge, the sentencing judge approached the sentencing in accordance with R v Nagy  1 Qd R 63 at  and increased the sentence imposed for the most serious of the offences (count 1) to imprisonment of four years and made all sentences of imprisonment concurrent. In view of the submissions made before the sentencing judge that the fraud, by itself, could attract a sentence of three years’ imprisonment (on the respondent’s submission) or imprisonment for two years and six months (on the applicant’s counsel’s submission), the sentence of four years’ imprisonment, allowing for the commission of the attempted fraud, the stalking and all summary charges was a sentence within the sound exercise of the sentencing discretion. In selecting the effective head sentence and suspending it after slightly less than one-third of the sentence was served in actual custody, the sentencing judge took into account the mitigating factors in favour of the applicant, including his guilty pleas, his adjustment disorder and the hardship in prison due to his family being overseas.
- The applicant has failed to show that the sentences were manifestly excessive.
- The applicant submits two documents attached to his written submissions which he had provided to his lawyers, but they did not put them before the judge. One is a doctor’s certificate about the declining health of his mother who lives in Portugal and the other is notification of his mandatory appearance required in a Family Court in Portugal. Those documents were of little or no weight for sentencing in respect of the subject offences and could not support a challenge to the sentencing based on inadequate legal representation.
- To the extent that the applicant now relies on the fact that he did not contact the complainant in any way after 25 November 2019, that was implicit at the sentencing hearing. If that had not been the case, appropriate material would have been put before the sentencing judge. The applicant’s exemplary record whilst in prison and his assertion that he has been the subject of bullying and harassment whilst in prison occurred subsequent to the sentencing and were therefore not relevant on this application.
- The applicant relies on the additional time he will spend in custody in immigration detention while waiting for the decision on his deportation and availability of international flights due to the COVID-19 pandemic. The sentencing judge specifically took into account that the applicant would be taken into immigration detention after serving the custodial component of the sentences, but the relevance of that in the circumstances, as explained in Norris at  and , was taken into account by the sentencing judge in suspending the sentences rather than ordering eligibility for parole, in accordance with the applicant’s counsel’s submission during the sentencing.
- The additional matters which the applicant has sought to raise in his written submissions do not assist him in challenging the sentences imposed by the sentencing judge.
- The order that should be made is: Application for leave to appeal against sentence refused.
- MORRISON JA: I agree.
- BOWSKILL SJA: I agree.
- MORRISON JA: The order of the Court is that the application for leave to appeal is refused.
- Published Case Name:
R v Marques Malagueta
- Shortened Case Name:
R v Marques Malagueta
 QCA 195
Morrison JA, Mullins JA, Bowskill SJA
09 Sep 2021