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R v MDN[2022] QCA 124

[2022] QCA 124

COURT OF APPEAL

MULLINS P

MORRISON JA

BODDICE J

CA No 93 of 2022

DC No 9 of 2022

R

v

MDN Applicant

BRISBANE

WEDNESDAY, 13 JULY 2022

JUDGMENT

  1. [1]
    MULLINS P:  The applicant pleaded guilty on 19 April 2022 to one count of attempting to pervert justice.  The particulars of the count were that on 10 March 2020 he signed an affidavit which he knew was false.
  2. [2]
    The agreed statement of facts included the following.  The applicant’s brother assaulted his partner at the address at which they were residing at about 6.00 am on 4 March 2020.  The applicant’s brother telephoned the applicant who attended at that address and drove his brother away.  On 6 March 2020, the brother was charged with offences arising out of the assault and was remanded in custody.  On 10 March 2020, the brother applied for bail, relying on an affidavit from the applicant in which the applicant swore that on 3 March 2020 his brother was home with him, his brother went to bed at 9.00 pm that night, and the applicant went to bed after that.  The applicant swore that when he woke up at approximately 5.00 am the next day, his brother was still asleep and came out of his room at approximately 7.30 am.  They left home at approximately 9.00 am with the applicant driving his brother to a Centrelink office.  The applicant swore that at no stage on 4 March 2020 did his brother go to the place where his partner was living (which had the effect of giving his brother a false alibi).  The application by his brother for bail was refused and his brother pleaded guilty on 11 March 2021 to the offences committed on 4 March 2020.
  3. [3]
    The applicant was sentenced to imprisonment for 15 months to be suspended after serving five months in custody for an operational period of two years.
  4. [4]
    The applicant applies for leave to appeal on the ground that the sentence is manifestly excessive.  The applicant appears on his own behalf on this application.  In his written outline, he explains that a woman was charged on the same date as him with the same offence and was remanded in custody and served 62 days.  He asserts that she pleaded guilty to attempting to pervert justice and additional charges and did not receive any further custodial component than the 62 days she had already served.  He asserts that his lawyer was supposed to mention the woman’s sentence as part of the submissions before the sentencing judge and did not and also relies on the fact that the prosecutor at the sentencing did not inform the sentencing judge of the woman’s sentence.
  5. [5]
    Leave was given to the respondent at the hearing of this application to adduce the affidavit of Ms Gillies sworn on 7 July 2022 which exhibits the transcript of the hearing before the learned magistrate who sentenced the woman on 8 June 2021, the transcript of the sentencing remarks and the sentencing schedule with the details of the more than 40 charges to which she pleaded guilty on 8 June 2021.
  6. [6]
    The woman was charged with two offences that related to the applicant’s brother.  The first was making a false declaration in contravention of s 194 of the Criminal Code (Qld) and the second was attempting to pervert justice in contravention of s 140 of the Code.  Both charges related to the conduct of the woman in signing a declaration on 10 March 2020 that the contents of her affidavit were true.  It was relevant to the attempting to pervert justice charge that the woman’s affidavit was also used to support the bail application of the applicant’s brother.  The woman’s affidavit was to the effect that she lived at the address where the assault occurred, the applicant’s brother had not been at the relevant address at the same time as his partner and that it was the woman herself who assaulted and strangled the partner on 4 March 2020.
  7. [7]
    For all the offending, including the two offences, the woman who was 21 years old with a drug problem when she committed the two offences was sentenced to an effective head sentence of 18 months’ imprisonment, a pre-sentence custody declaration was made in respect of the period of 62 days that she had been held in custody between 7 April and 7 June 2021 and she was released on immediate parole.  The most serious offence to which she pleaded guilty was the charge of attempting to pervert justice and for that offence the sentence was 18 months’ imprisonment.  All other sentences of imprisonment imposed on that day were for lesser periods and were made concurrent.
  8. [8]
    The applicant and the woman were not strictly co-offenders, as each had sworn his or her own affidavit that deposed to matters relating to his or her knowledge of the applicant’s brother’s whereabouts at the time his partner was assaulted and there was no allegation that the applicant and the woman were acting in concert in swearing the false affidavits.  In the normal course, it would have been expected for the prosecutor to inform the sentencing judge of the sentence imposed on an offender who had engaged in contemporaneous and similar offending to the applicant.  As it turns out, the magistrate had no jurisdiction to sentence the woman for attempting to pervert justice, as that is an indictable offence under the Code which cannot be dealt with summarily, as it does not fall within s 552A, s 552B or s 552BA of the Code.  The sentence imposed on the woman in excess of the magistrate’s jurisdiction is vulnerable to being set aside.  It is therefore not appropriate on this application to have regard to that sentence.  It would distort the sentencing of the applicant to regard an improper sentence as creating a justifiable sense of grievance on the applicant’s part.
  9. [9]
    In any case, counsel who appeared for the applicant before the sentencing judge accepted appropriately that, in accordance with the relevant authorities relied on by the prosecutor, the sentence imposed on the applicant could be imprisonment for 18 months or as low as 15 months, but argued forcefully for a wholly suspended sentence of imprisonment.  The applicant was 26 years old when he committed the offence.  He was dealt with for minor offending as a 17 year old.  He was sentenced in the Magistrates Court on 11 November 2019 for an assault occasioning bodily harm.  No conviction was recorded and he was ordered to perform community service for 60 hours to be completed within six months and to pay compensation of $2,703 within 28 days.  He failed to attend as directed by the Community Corrections office on 18 occasions and did not perform any hours of community service.  He was resentenced in the Magistrates Court on 12 October 2020 when a conviction was recorded and he was fined $1,250 for the original offence and a conviction was also recorded for the breach of the community service order.
  10. [10]
    The submission was made by the applicant’s counsel, and accepted by the sentencing judge, that the applicant committed the offence of attempting to pervert justice out of “a real sense of misguided loyalty” to his brother.
  11. [11]
    The applicant had sustained a serious work injury to his arm in November 2018 for which he received WorkCover payments for two years and then was placed on Centrelink payments.  He continued to suffer from pain in his arm, and was at the stage of resuming a different type of work.  He had the support of his partner.  The sentencing judge observed, as is the case, that the offence, in most cases, justified an actual term of imprisonment, because the offence strikes “at the very heart of the administration of justice”.
  12. [12]
    As the applicant’s counsel recognised before the sentencing judge, a sentence in the order of 15 months’ imprisonment for such a serious offence was appropriate in the circumstances of the offending and the applicant’s personal circumstances.  That accorded with the authorities relied on by the prosecutor before the sentencing judge which included R v Maxwell [2018] QCA 17 and the additional authority relied on by the respondent on this application of R v Getawan [2014] QCA 235.  The applicant’s guilty plea has been recognised in the sentence being suspended after the applicant has served one-third of the sentence in custody.  There is no basis to conclude that the sentence is either unreasonable or plainly unjust which must be shown by the applicant before the sentence can be found to be manifestly excessive.  The application for leave to appeal is refused.
  13. [13]
    MORRISON JA:  I agree.
  14. [14]
    BODDICE J:  I agree.
  15. [15]
    MULLINS P:  Thanks, Mr MDN.  That’s the order of the Court.
Close

Editorial Notes

  • Published Case Name:

    R v MDN

  • Shortened Case Name:

    R v MDN

  • MNC:

    [2022] QCA 124

  • Court:

    QCA

  • Judge(s):

    Mullins P, Morrison JA, Boddice J

  • Date:

    13 Jul 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC9/22 (No citation)19 Apr 2022Date of sentence (Barlow QC DCJ)
Notice of Appeal FiledFile Number: CA93/2218 May 2022-
Appeal Determined (QCA)[2022] QCA 12413 Jul 2022-

Appeal Status

Appeal Determined (QCA)

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