R v Daswani

Case [2005] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

R v Daswani [2005] QCA 167

PARTIES:

R
v
DASWANI, Lakhmi Gulabrai
(applicant)

FILE NO/S:

CA No 107 of 2004
DC No 3251 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

20 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2005

JUDGES:

McMurdo P, Jerrard JA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

It is declared that the sentence imposed on count 15 is not cumulative on the non-parole period applicable in respect of counts 16 to 27, and that all effective federal sentences are concurrent

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – where applicant convicted after pleas of guilty to 15 counts of dishonest use of position as a director of a corporation under s 184(2) Corporations Act 2001 (Cth) (counts 1-15) and 12 counts of fraud under s 408C Criminal Code 1899 (Qld) (counts 16-27) – where sentenced to two years imprisonment on counts 1-15 with a recognizance release order after eight months – where sentenced to 10 years imprisonment on counts 16-27 – where sentence imposed on count 15 ordered to be served cumulatively on other sentences – where all other sentences to be served concurrently – where recommendation for parole after four years and three months – where sentencing judge stated sentence imposed to reflect overall criminality of offences – where offences occurred over two year period – where total amount misappropriated approximately $11,000,000 – where money gained from offending conduct used to finance flight from jurisdiction – where early plea of guilty by ex officio indictment – where no prior convictions – where cooperation with authorities once apprehended – whether sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – OTHER MATTERS – where during hearing of appeal the Court indicated it may allow the appeal but restructure the sentence imposed to lawfully reflect the intention of the sentencing judge – where could result in effective increase in sentence – whether if Court contemplating such a course it is required to advise applicant and give them an opportunity to withdraw their application

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE – POWER TO IMPOSE – where sentencing judge ordered sentence imposed for a Commonwealth offence be served cumulatively on sentences imposed for State offences – whether sentencing judge erred in making such an order – whether an order of similar effect may be made under s 19(3) Crimes Act 1914 (Cth)

Crimes Act 1914 (Cth), s 19(3)

Neal v The Queen (1982) 149 CLR 305, applied
Palmer v Attorney-General of Queensland  [1994] QCA 022; CA No 441 of 1993, 2 February 1994,…

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Details
AGLC
R v Daswani [2005] QCA 167
Case
[2005] QCA 167
Decision Date

CaseChat Overview and Summary

The respondent, Daswani, was convicted after pleading guilty to 15 counts of dishonest use of position as a director of a corporation and 12 counts of fraud. The court sentenced Daswani to two years imprisonment for the first set of counts with a release order after eight months and 10 years imprisonment for the second set of counts. The sentence for count 15 was ordered to be served cumulatively with the other sentences. The court imposed a recommendation for parole after four years and three months, stating that the sentence reflected the overall criminality of the offences. Daswani appealed against the sentence, arguing that it was manifestly excessive. The court considered whether the sentence was excessive and whether it was required to advise the respondent if it contemplated restructuring the sentence.

The court considered whether the sentence was manifestly excessive and whether it was required to advise the respondent if it contemplated restructuring the sentence. The court held that the sentence was not manifestly excessive, considering the totality of the offending and the amount of money misappropriated. The court also held that if it contemplated restructuring the sentence, it was not required to advise the respondent and give them an opportunity to withdraw their application. The court held that the sentencing judge did not err in ordering the sentence for the Commonwealth offence to be served cumulatively with the sentences for the State offences. The court held that an order of similar effect could be made under s 19(3) Crimes Act 1914 (Cth).

The court declared that the sentence imposed on count 15 was not cumulative on the non-parole period applicable in respect of counts 16 to 27, and that all effective federal sentences were concurrent. The court allowed the appeal and restructured the sentence imposed to lawfully reflect the intention of the sentencing judge. The court ordered that the sentence for count 15 was not cumulative on the non-parole period applicable in respect of counts 16 to 27, and that all effective federal sentences were concurrent. The court dismissed the appeal against sentence.

Orders

Orders of the court

It is declared that the sentence imposed on count 15 is not cumulative on the non-parole period applicable in respect of counts 16 to 27, and that all effective federal sentences are concurrent

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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