R v Nair[2020] QCA 259

SUPREME COURT OF QUEENSLAND

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 was a Taser torch.  A declaration was made in respect of 72 days in pre-sentence custody and the date on which Mr Nair was ordered to be eligible for parole was fixed at 12 December 2021.  All sentences were ordered to be served concurrently with each other.

Mr Nair applies for leave to appeal against his sentences on the ground they are manifestly excessive.  He appears for himself on the application.

Mr Nair is 38 years old.  He had no prior criminal history in Queensland for offences of dishonesty, but entries for contravention of domestic violence order, breach of bail and other minor offending.  He had driving offences, other minor offending and a conviction for armed robbery (for which he was sentenced to a wholly suspended term of imprisonment of two years) on his ACT criminal history.  He was also dealt with in the Magistrates Court on 25 May 2012 for 14 offences under the Fair Trading Act 1989 (Qld) for which he was fined a total of $95,000 and ordered to pay compensation that totalled $310,782.

Mr Nair was diagnosed with cardiomyopathy in approximately 2016.  He also suffers from chronic heart failure (compensated).  He was in a motorcycle accident in September 2019 in which he sustained a fractured pelvis, foot and ankle.  The fractures united and healed, but he was still using crutches to walk, when sentenced.  He was admitted to hospital overnight on 19 February 2020 with suspected seizures.

The offences were committed over the period between 25 July 2010 and 1 December 2015.

The earliest of the offences on indictment number 215 of 2020 involved Mr Nair operating a business in the name of “Ask Homes Pty Ltd”.  The complainants for the two counts signed contracts for kit homes and paid amounts of money to Ask Homes Pty Ltd but did not receive the products.  The first complainant had paid in total $12,990 and the second complainant had paid a total of $73,212.  The second complainant was repaid $51,000 following proceedings in the Federal Court.  This count of fraud had the circumstance of aggravation that the fraud was to the value of $30,000 or more.  The offending for these two counts were similar to the conduct for which Mr Nair had been sentenced under the Fair Trading Act 1989 on 25 May 2012.

Counts 3 and 4 on indictment number 1148 of 2018 were offences under the Australian Passports Act 2005 (Cth) and arose out of Mr Nair attending the Australian Consulate General’s office in California on 22 April 2013 and lodging an overseas Australian passport application in which he made a statement that his previously issued passport had been misplaced, and, as a result, he was issued with an emergency Australian passport in his name which he used on 24 April 2013 to travel from Los Angeles to Australia.  After he arrived in Australia, the Department of Foreign Affairs and Trade ascertained that Mr Nair had provided false and misleading information to obtain the emergency passport to avoid prosecution for charges in the United States.

Counts 5 to 9 on indictment number 1148 of 2018 were committed on various dates between 14 November 2013 and 4 March 2014.  Each of counts 7, 8 and 9 relates to an application by Mr Nair in the name of Nair Properties Pty Ltd ATF Nair Properties Trust using fraudulent supporting documents.  The fraudulent supporting documents of payslips and a PAYG payment summary were the subject of the charge of uttering, which is count 5 on the same indictment.  The other fraudulent supporting documents are bank statements that purported to be in the name of Nair Properties Pty Ltd ATF Nair Properties Trust from the Bank of Queensland were the subject of count 6 on the same indictment which was the charge of uttering with a circumstance of aggravation.

Count 7 concerned an application to the Commonwealth Bank for an investment loan to purchase two investment properties to the value of $678,713, and also an equipment loan for the purchase of a Porsche Cayenne to the value of $148,395.  (When a search warrant was executed at Mr Nair’s address on 6 October 2015, the Porsche Cayenne was seized by the police.)  Count 8 concerned an application by Mr Nair in his own name for an unsecured loan to the value of $12,000 from the Australian Public Sector Benevolent Society and a further application to increase the original loan amount to $30,000 and convert it to a secured special-purpose loan.  Count 9 concerned an application by Mr Nair to Suncorp Bank for the purchase of an investment property to the value of $990,000.  The loan amounts that were the subject of counts 7 to 9 were paid out to Mr Nair, and the total quantum of these funds was $1,859,108.

At the time Mr Nair committed the offences on indictment 1149 of 2018, he was married to Jessica Nair.  The attempted fraud, which was count 1 on this indictment, was committed on various dates between 4 November 2013 and 25 June 2014, when Mr Nair in the name of Nair Properties Pty Ltd ATF Nair Properties Trust or other businesses entities associated with Mr or Mrs Nair made eight applications to various financial institutions seeking finance to purchase land or properties in Queensland and elsewhere.  All the applications were declined.  Each of counts 2 and 3 relate to the offence of uttering that was committed in respect of the attempted fraud.  Count 2 was charged with a circumstance of aggravation that the forged document which was uttered (that purported to be a bank account statement) was a valuable security.  The forged documents that were the subject of count 3 purported to be employment documents.

Apart from referring to Mr Nair’s antecedents and the facts of the offending, the learned sentencing judge’s sentencing remarks included the following.  The guilty pleas were not early, as indictment number 215 of 2020 was listed for trial.  Despite that, Mr Nair was given the full benefit of the pleas of guilty, because of the complex nature of the charges, which would have involved lengthy and complex trials.

In relation to counts 7 to 9 on indictment number 1148 of 2018, the essence of the offending was the use of false documents claiming a high salary and false bank statements to obtain the loans.  The personal loan the subject of count 8 was repaid.  The property that was purchased with the loan that was the subject of count 9 was sold, and the loan to Suncorp Bank repaid.  At the time of sentencing, the Commonwealth Bank had not retaken possession of the properties that were purchased with the loan that was the subject of count 7, that loan remained outstanding, but the bank still had the right to those properties.  The Porsche which was seized by police, was returned to the dealership.

The offending that was the subject of the two fraud counts on indictment number 215 of 2020 had significant effect on the two complainants.

The prosecution relied on R v Williams [2014] QCA 154, R v Kelly [2016] QCA 293, and R v Tindale [2008] QCA 24 as comparable decisions to support a head sentence of seven years’ imprisonment.  Mr Nair’s counsel stressed that Mr Nair’s time in custody had been very difficult.

The sentencing judge had regard to the medical material that had been tendered as exhibit 18.  Mr Nair has cardiomyopathy and had been in the Princess Alexandra Hospital prison wing on three separate occasions with chest pains and seizures.  His motorcycle accident had left him with continuing issues.  Mr Nair suffers from sleep apnoea, but has no CPAP machine to use in prison.

The sentencing judge took into account the health issues by ordering that the date for eligibility for parole be fixed at 12 December 2021, which meant that his eligibility for parole would occur after he had served a little less than two years of the head sentence of seven years.

Mr Nair requests the court to take into account the difficulties he has experienced since being imprisoned on 26 February 2020 due to not being able to access medical treatment of sufficient standard for his various medical conditions.  He claims he needs a carer, as he suffers from seizures and has been hospitalised many times within prison, and on two occasions on 6 March 2020 (prior to the completion of his sentencing) he stopped breathing after seizures and underwent CPR to which he responded.  Mr Nair asserts he suffers from major toothaches and tooth chips caused from grinding his teeth due to his seizures.  He has a blood clot in his right arm, which he says is still being investigated and for which he is on medication.  The copy of the progress notes that Mr Nair attached to his submission described a “superficial thrombophlebitis” in the right upper medial forearm.  Mr Nair also refers to his family history being “full of heart issues”.  He seeks an earlier parole eligibility date or to serve out the remainder of his sentence at home.

Consistent with the approach of his counsel at the sentencing, who did not demur from the prosecution’s submission on the head sentence, Mr Nair does not make any submission about the effective head sentence of seven years that was imposed for his offending.

As leave was given to Mr Nair to adduce the evidence relevant to the medical conditions that have affected him upon his return to custody on 26 February 2020, leave was given to the respondent to rely on material obtained from Queensland Corrective Services and from a doctor with the West Moreton Hospital and Health Service which provides the medical treatment at the prison where Mr Nair is presently located.  There have been six medical emergency incidents in Mr Nair’s prison record since his return to custody.  Queensland Health provides a service for 15 hours daily at the prison between 6 am and 9 pm, and outside those hours, staff contact Queensland Ambulance Service if a prisoner has a medical issue.  The doctor’s report notes that, if a sleep study showed that Mr Nair required the use of a CPAP machine, that would be recommended by Queensland Health to Queensland Corrective Services.  It appears that Mr Nair, upon receiving the respondent’s material, has followed up, and, if his general medical practitioner’s records support the use of a CPAP machine, he has now been informed that it will be provided, although he still believes there will be a delay of some months before that occurs.  The review of Mr Nair by the Prison Health Dental Service on 4 August 2020 noted the minor fractures to his upper front teeth, but the progress notes did not refer to Mr Nair complaining of pain or toothache.  The treating dentist advised the fractures were not large enough to require restorations at this stage.

The additional material relied by Mr Nair was largely before the sentencing judge, but is merely expressed by Mr Nair in his submissions in a more personal way.  There was no reference to teeth grinding in the submissions to the sentencing judge, but it is apparent from the further material relied on by the prosecution that Mr Nair’s immediate dental and medical issue matters can be handled within the prison.

The sentencing judge was cognisant of the medical material that was put before him and expressly took that into account in fixing an earlier than usual parole eligibility date.

Mr Nair committed a series of serious fraud-type offences for which a significant sentence of imprisonment involving a not-insignificant period in actual custody was appropriate.  There is no error shown in the exercise of the sentencing judge’s discretion in giving some effect to the medical material adduced on sentencing.  The additional material adduced by Mr Nair has been largely negated by the respondent’s material in response.

Mr Nair cannot succeed on his application for leave to appeal against his sentence on the ground that it was manifestly excessive.  The application should be refused.

McMURDO JA:  I agree.

SOFRONOFF P:  I agree.  The application for leave to appeal against sentence is refused.