R v Naum - [1992] QCA 407

COURT OF APPEAL [1992] QCA 407

PINCUS JA
McPHERSON JA
WHITE J

CA No 231 of 1992

THE QUEEN

GEORGE NAUM Applicant

BRISBANE

..DATE 20/10/92

JUDGMENT

201092
PINCUS JA: This is an application for leave to appeal against sentence by Mr George Naum. He was convicted on 22 July 1992 in the District Court at Warwick of offences of unlawfully using a motor vehicle, stealing, and obtaining property, namely petrol, with intent thereby to defraud. The learned trial Judge sentenced the applicant to 5 months imprisonment. Apparently that was calculated on the basis that he had spent 3 and a half months awaiting trial, and Her Honour doubled that, having regard to the parole system, and added 5 months to make, what might be described as an effective sentence of 12 months.

Mr Alcorn, who has appeared for the applicant today, has submitted that the sentence was excessive, and suggested that the proper course for Her Honour to have taken would have been to release Mr Naum, on the assumption that he had been sufficiently punished by his 3 and a half months awaiting trial. Her Honour apparently thought that was not so. The circumstances of the offence, in so far as they relate to the applicant in particular, do not very plainly appear. He did not give evidence at his trial. He made 2 statements to the police which, as Mr Alcorn
has submitted, vary somewhat in content, and it is not clear to what extent one can rely upon either.

In essence, what happened was that a Ford Cortina motor car was stolen in Warwick. It was taken away and burnt. The applicant was, in fact, charged with arson but acquitted, and that must therefore be ignored. It had contained various items, a Pioneer radio, a cassette recorder, an air compressor, and a set of jumper leads. Later that evening the applicant drove the vehicle to a garage at Goondiwindi, and he told the proprietor

he had lost his wallet and needed money. He offered to sell the air compressor in exchange for which the proprietor gave him $15 worth of fuel and some Coca Cola.

The compressor in fact came from the Cortina which had been burnt. Subsequently the applicant was located driving in New South Wales, at Moree, and other items from the burnt out vehicle were found under the front passenger seat, and the jumper leads were also found. Now Mr Alcorn says that the applicant was but a minor participant in the whole affair, that he had very little to do with it. The sole source, it appears, of this contention is what is said at pages 126 and 127 of the record by counsel when Mr Naum was sentenced.

Counsel then said that a man called Pluim, who was involved in the offences, was known to the applicant only shortly before the offences. The applicant was unaware of his ‑ that is Pluim's ‑ criminal activities, and he regarded it as a…

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 Naum

Details

AGLC: R v Naum [1992] QCA 407
Case: [1992] QCA 407
Decision Date: 20 October 1992

CaseChat Overview and Summary

The case of R v Naum involved the applicant, George Naum, who was convicted of unlawfully using a motor vehicle, stealing, and obtaining property with intent to defraud. Naum was sentenced to five months imprisonment by the District Court at Warwick, which was considered by the applicant as excessive. The applicant sought leave to appeal against the sentence. The case was heard by the Queensland Court of Appeal, comprising Pincus JA, McPherson JA, and White J. The primary issue was whether the sentence imposed on Naum was excessive, considering his prior criminal history and the fact that he had not been convicted for about ten years.

The Court of Appeal considered the arguments presented by the applicant's counsel, who contended that Naum was a minor participant in the offences and that his prior criminal history should not be heavily weighed in the sentencing decision. The Court acknowledged that Naum had a history of dishonesty-related offences and that he had not been convicted for about ten years, possibly due to his serious injuries in 1986 and his responsibilities for his son after his separation from his wife in 1978. However, the Court found that Naum's criminal history and the nature of the offence, which involved selling stolen property and misrepresentation, warranted a sentence within the range of a reasonable exercise of discretion. The Court was not persuaded that the sentence of five months imprisonment was excessive.

In conclusion, the Court of Appeal dismissed the application for leave to appeal against the sentence imposed on Naum. The order of the Court was that the application for leave to appeal was dismissed.

Orders