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Nair v The Queen

Nair v The Queen

Case [2013] NSWCCA 79 18 April 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nair v R [2013] NSWCCA 79
Hearing dates: 21 March 2013
Decision date: 18 April 2013
Before: Basten JA at [1];
Simpson J at [33];
Blanch J at [65]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal in respect of Count 1 and quash the sentence imposed in the District Court and sentence the applicant to a fixed term of imprisonment of 6 months to date from 9 January 2010.
(3) Dismiss the appeal against the sentence imposed in respect of the third count of supply prohibited drug and confirm the sentence but the sentence of 2 years, 9 months and 23 days should date from 9 January 2010 with a balance of term of 11 months and 8 days.
(4) Dismiss the appeal against the sentence on the second count of manslaughter and confirm the sentence of 2 years with a balance of term of 2 years and 6 months but that sentence should commence on 1 August 2012. He would be eligible for release to parole on 31 July 2014.

Catchwords:
CRIMINAL LAW - sentencing - procedural fairness - where primary judge indicated intention to impose a non-custodial sentence - where offender later received custodial sentence - whether counsel for offender deprived of opportunity to make submissions in favour of leniency

CRIMINAL LAW - sentencing - supply prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) - whether sentence manifestly excessive - where offence committed on conditional bail - where offence contrary to conditions of bail - where separate offences taken into account on Form 1

CRIMINAL LAW - sentencing - whether primary judge erred in rejecting the psychiatric case concerning offender's cocaine addiction - whether culpability should be reduced - where no mental illness demonstrated - where no addiction demonstrated
CRIMINAL LAW - sentencing - death of young woman to whom applicant, a medical practitioner, supplied cocaine - manslaughter conviction - whether sentence excessive
Legislation Cited: Drug Misuse and Trafficking Act 1985, s 25(1)
Crimes Act 1900 (NSW), s 18(1)(b)
Criminal Appeal Act 1912, s 6(3)
Medical Practice Act 1992 (NSW), s 66
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Baroudi v R [2007] NSWCCA 48
Bichar v R [2006] NSWCCA 1
Button v R [2010] NSWCCA 264
Dionys v R [2011] NSWCCA 272
O'Neill-Shaw v R [2010] NSWCCA 42
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Henry [1999] 46 NSWLR 346
R v SY [2003] NSWCCA 291
R v Wilhelm [2010] NSWSC 378
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Suresh Surendranath Nair (Applicant)
Regina (Respondent)
Representation:
Counsel:

T Game SC (Applicant)
M M Cinque (Respondent)
Solicitors:
Giddy & Crittenden (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/267311; 2010/8460; 2010/31838
Decision under appeal

Jurisdiction:

9101

Citation:

R…

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 Nair v The Queen

Details

AGLC: Nair v The Queen [2013] NSWCCA 79
Case: [2013] NSWCCA 79
Decision Date: 18 April 2013

CaseChat Overview and Summary

In Nair v The Queen, the appellant, Dr Nair, was convicted of manslaughter and supplying a prohibited drug, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The case came before the court on appeal against sentence, where Dr Nair argued that the primary judge's sentence was excessive and failed to take into account relevant mitigating factors. The appeal centred on whether the primary judge erred in imposing a custodial sentence, the adequacy of procedural fairness during sentencing, and the relevance of the psychiatric evidence presented.

The court was required to determine whether the primary judge correctly assessed the severity of the offence and the circumstances surrounding it. Key issues included whether the sentence was manifestly excessive, the relevance of Dr Nair's cocaine addiction and psychiatric state, and the impact of the death of the young woman to whom he supplied cocaine. Additionally, the court examined whether Dr Nair's counsel was adequately provided an opportunity to make submissions on the potential for a non-custodial sentence, given the primary judge's initial inclination towards such a disposition.

In its reasoning, the court considered the nature and circumstances of the offence, including the breach of bail conditions and the death that resulted from the supply of cocaine. The court found that the primary judge's assessment of the aggravating factors was justified, and that the sentence was not manifestly excessive. Regarding procedural fairness, the court noted that while there was some initial indication of a non-custodial sentence, the eventual custodial sentence was not imposed in a manner that deprived Dr Nair's counsel of an opportunity to argue for leniency. The psychiatric evidence concerning Dr Nair's addiction was deemed insufficient to warrant a reduction in culpability, as there was no demonstrated mental illness or addiction that would mitigate his responsibility. The court ultimately upheld the sentence imposed by the primary judge, finding it to be appropriate given the circumstances.

Orders