R v Nair - [2020] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nair [2020] QCA 259

PARTIES:

R
v
NAIR, Matthew Michael
(applicant)

FILE NO/S:

CA No 72 of 2020
DC No 1147 of 2018
DC No 1148 of 2018
DC No 1149 of 2018
DC No 215 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 13 March 2020 (Smith DCJA)

DELIVERED EX TEMPORE ON:

23 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2020

JUDGES:

Sofronoff P and McMurdo and Mullins JJA

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced for numerous fraud type offences – where the offending occurred over a period of five years – where the applicant had a relevant prior criminal history and history of offending against the Fair Trading Act 1989 (Qld) – where the applicant suffers from health complaints including cardiomyopathy, sleep apnoea, injuries from a motorcycle accident, seizures and fractured teeth – where the effective sentence was seven years’ imprisonment with all sentences to be served concurrently – where the sentencing judge expressly took the applicant’s medical issues into account by fixing the date of eligibility for parole after the applicant had served a little less than two years in custody – whether the sentence is manifestly excessive

COUNSEL:

The applicant appeared on his own behalf
J A Geary for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MULLINS JA: Mr Nair pleaded guilty in the District Court of Brisbane to numerous fraud-type offences on indictment number 1148 of 2018, another three fraud-type offences on indictment number 1149 of 2018, two fraud offences on indictment number 215 of 2020, and one count of unlawful possession of a category R weapon on indictment number 1147 of 2018. The submissions on sentence were made on 18 February and 13 March 2020, and it was on the latter date that Mr Nair was sentenced.

For each of counts 7 and 9 (on indictment number 1148 of 2018) Mr Nair was sentenced to imprisonment for a period of seven years. On the same indictment, he was imprisoned on count 8 for a period of three years, on each of counts 3 and 4, for a period of six months; on count 5, for a period of 18 months; and on count 6, for a period of two years. For each of counts 1, 2 and 3 on indictment number 215 of 2020, he was imprisoned for a period of two years. For count 1 on indictment number 1149 of 2018, he was sentenced to two years’ imprisonment and for count 2 on the same indictment he was sentenced to three years’ imprisonment. He was sentenced to imprisonment for one month for the unlawful possession of a weapon, which…

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 R v Nair

Details

AGLC: R v Nair [2020] QCA 259
Case: [2020] QCA 259
Decision Date: 23 November 2020

CaseChat Overview and Summary

In the matter of R v Nair, the applicant, a person with a history of fraud offences and convictions under the Fair Trading Act 1989 (Qld), appealed against the sentence imposed by the trial judge. The applicant's criminal activity spanned over five years and involved numerous instances of fraud. The sentencing judge imposed a total effective sentence of seven years' imprisonment, with all sentences to be served concurrently, and set a parole eligibility date after the applicant had served a little less than two years. The applicant's appeal focused on the contention that the sentence was manifestly excessive, particularly in light of the applicant's medical issues, which included cardiomyopathy, sleep apnoea, injuries from a motorcycle accident, seizures, and fractured teeth.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate, warranting interference by the appellate court. The court had to consider the nature and extent of the offending, the applicant's criminal history, the impact of the applicant's medical conditions, and the sentencing judge's consideration of these factors. The court needed to determine if the sentence was so disproportionate as to shock the conscience of the court, thereby justifying appellate intervention.

The court examined the sentencing remarks of the trial judge, which demonstrated a careful and comprehensive consideration of the applicant's circumstances, including the medical issues and criminal history. The judge had explicitly taken into account the applicant's health problems by setting a parole eligibility date after the applicant had served less than two years. The appellate court found that the trial judge had appropriately balanced all relevant factors and had not imposed a sentence that was manifestly excessive or inadequate. Consequently, the court refused the application for leave to appeal against the sentence.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

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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CITATION:	R v Nair [2020] QCA 259
PARTIES:	R v NAIR, Matthew Michael (applicant)
FILE NO/S:	CA No 72 of 2020 DC No 1147 of 2018 DC No 1148 of 2018 DC No 1149 of 2018 DC No 215 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 13 March 2020 (Smith DCJA)
DELIVERED EX TEMPORE ON:	23 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2020
JUDGES:	Sofronoff P and McMurdo and Mullins JJA
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced for numerous fraud type offences – where the offending occurred over a period of five years – where the applicant had a relevant prior criminal history and history of offending against the Fair Trading Act 1989 (Qld) – where the applicant suffers from health complaints including cardiomyopathy, sleep apnoea, injuries from a motorcycle accident, seizures and fractured teeth – where the effective sentence was seven years’ imprisonment with all sentences to be served concurrently – where the sentencing judge expressly took the applicant’s medical issues into account by fixing the date of eligibility for parole after the applicant had served a little less than two years in custody – whether the sentence is manifestly excessive
COUNSEL:	The applicant appeared on his own behalf J A Geary for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent