Queensland’s highest court has rejected an application to reduce the prison term meted out to a man who provided his brother with a “false alibi” for a domestic violence assault.
The Court of Appeal (COA) in Brisbane on Tuesday published its decision to dismiss an appeal by a man – identifiable only as MDN – to reduce the 15-month jail sentence he received for attempting to pervert justice in March 2020.
On 19 April 2022, MDN pleaded guilty in the District Court and was sentenced to serve a minimum five months in custody for signing an affidavit containing material he knew to be false on 10 March 2020.
COA President Debra Mullins, in her written five-page decision, said MDN’s brother assaulted his partner about 6am on 4 March 2020.
MDN collected his brother from the couple’s residence after the attack and four days later provided an affidavit in which he falsely swore his brother was at “home with him” and “asleep” at the time of the assault.
MDN appealed his sentence on the grounds it was manifestly excessive, saying a woman who committed the same offence as him on the same day had received a lesser actual term of custody.
“In his written outline, (MDN) 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,” Justice Mullins said.
“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.
“(MDN) asserts that his lawyer was supposed to mention the woman’s sentence as part of the submissions before the sentencing judge (at his sentence) 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.”
Justice Mullins said the woman’s affidavit – which was also an attempt to pervert the course of justice – falsely claimed she was responsible for the attack, not the brother.
“The woman’s affidavit was to the effect that she lived at the address where the assault occurred … (and that MDN’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,” Justice Mullins said.
“The woman, who was 21 years old with a drug problem when she committed the … offences, was sentenced to an effective head sentence of 18 months’ imprisonment.
“(DMN) 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 (DMN’s) brother’s whereabouts at the time his partner was assaulted and there was no allegation that (DMN) and the woman were acting in concert in swearing the false affidavits.
“A pre-sentence custody declaration was made in respect of the period of 62 days (the woman) … had been held in custody … and she was released on immediate parole.”
MDN, who represented himself before the COA last week, argued that despite receiving a lesser head sentence than the woman – his 15 months compared to her 18 months – it was likely he would spend longer in actual detention.
In refusing MDN leave to appeal, Justice Mullins said: “As (MDN’s legal) 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.
“(DMN’s) guilty plea has been recognised in the sentence being suspended after (he) 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 (DMN) before the sentence can be found to be manifestly excessive. The application for leave to appeal is refused.”
COA Justices Philip Morrison and David Boddice agreed with Justice Mullins’ decision.
Read the decision.