R v Nerbas

Case [2014] QCA 259

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nerbas [2014] QCA 259

PARTIES:

R
v
NERBAS, Kelsey James
(appellant/applicant)

FILE NO/S:

CA No 32 of 2014
SC No 87 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2014

JUDGES:

Holmes and Gotterson JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    Extension of time to appeal against conviction refused.

2.    Leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON A GUILTY PLEA – PARTICULAR CASES – where the appellant and two others were involved in importing drugs hidden in cathode tubes of computer monitors – where the appellant and his co-accused were charged with offences involving the importation and possession of drugs – where on the ninth day of their trial, the appellant changed his plea to guilty on all charges – where the appellant’s co-accused were found  guilty on all counts – where the appellant’s co-accused appealed to the High Court who quashed the convictions and ordered a new trial – where the appellant was granted leave to withdraw his pleas of guilty – where a new indictment was presented – where the appellant pleaded guilty to the two counts on the new indictment which concerned him – where the appellant did not file his notice of appeal within one month of conviction – where the viability of the appeal will be considered with the extension of time – where the appellant contends that the new indictment was a procedural error leading to an abuse of process – whether the appellant’s conviction was tainted by a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced to 15 years’ imprisonment for each offence to be served concurrently – whether the non-parole period imposed was based on an erroneous footing – whether the sentencing judge failed to adequately take into account the appellant’s personal circumstances

Criminal Code 1995 (Cth), s 2.1, s 11.2
Criminal Code 1899 (Qld), s 572, s 590, s 668E, s 671

Arenilla-Cepeda v The Queen [2012] NSWCCA 267, cited
C v The Queen (2013) 229 A Crim R 233; [2013] NSWCCA 81, considered
Handlen v The Queen (2011) 245 CLR 282; [2011] HCA 51, related
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited
Nguyen v The Queen (2011) 31 VR 673; [2011] VSCA 32, considered
R v Burling & Gill[2011] QCA 51, considered
R v Carkeet [2009] 1 Qd R 190; (2008) 185 A Crim R 147; [2008] QCA 143, applied
R v Nerbas [2011] QSC 41, related
R v Nerbas [2012] 1…

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AGLC
R v Nerbas [2014] QCA 259
Case
[2014] QCA 259
Decision Date

CaseChat Overview and Summary

The case of R v Nerbas involved the appellant who, along with two others, was implicated in a scheme to import drugs concealed within the cathode tubes of computer monitors. The appellant and his co-accused were charged with offences related to the importation and possession of drugs. On the ninth day of their trial, the appellant altered his plea to guilty on all charges, whereas his co-accused were found guilty on all counts. Subsequently, the co-accused appealed to the High Court, which quashed their convictions and mandated a new trial. The appellant was then granted leave to withdraw his guilty pleas, leading to the presentation of a new indictment. The appellant entered a guilty plea to two counts on the new indictment that pertained to him.

The legal issues in this case revolved around whether the appellant's conviction was marred by a miscarriage of justice due to procedural errors in the new indictment and whether the sentence imposed was manifestly excessive or inadequate. Specifically, the court had to determine if the new indictment constituted a procedural error that led to an abuse of process and whether the sentencing judge had failed to adequately consider the appellant's personal circumstances. The appellant argued that the new indictment was a procedural misstep resulting in an unjust outcome.

In assessing these issues, the court held that the extension of time to appeal against the conviction was refused as the procedural error did not result in a miscarriage of justice. The court found that the new indictment was a legitimate procedural step following the quashing of the original convictions. Furthermore, the court concluded that the sentence imposed was not manifestly excessive or inadequate, and the sentencing judge had appropriately considered the appellant's personal circumstances. Consequently, the leave to appeal against the sentence was also refused.

The final orders of the court were to deny the extension of time to appeal against the conviction and to refuse the leave to appeal against the sentence.

Orders

Orders of the court

1. Extension of time to appeal against conviction refused.

2. Leave to appeal against sentence 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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