SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0122
| SITI KAMAL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | FERGUSON CJ and McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 February 2021 |
| DATE OF JUDGMENT: | 25 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 27 |
| JUDGMENT APPEALED FROM: | [2020] VCC 254 (Judge Gaynor) |
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CRIMINAL LAW – Appeal – Sentence – Blackmail – Application for extension of time – Offending involved persistent demands of parents of dying child for payment to return telephone containing images of child – Applicant threatened to erase images or sell telephone – Telephone never in her possession – Whether judge made specific error by characterising offending as ‘amoral’ or excessively focusing on moral character of offending – No specific error shown – Whether sentence of three years with non-parole period of two years manifestly excessive – Sentence stern but within available range – Aitkin v The Queen [2017] VSCA 103, Director of Public Prosecutions v Oksuz (2015) 47 VR 731, Loftus v The Queen [2019] VSCA 24, considered – Crimes Act 1958 s 87(1) – Sentencing Act 1991 s 5(2)(d) – Proposed appeal lacks sufficient prospects of success – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T R Marsh | Stary Norton Halphen |
| For the Respondent | Mr J Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
FERGUSON CJ
McLEISH JA:
On 31 October 2019, the applicant pleaded guilty before a judge of the County Court to a single charge of blackmail, contrary to s 87(1) of the Crimes Act 1958. The maximum penalty for blackmail is fifteen years’ imprisonment.[1]
[1]Section 87(1) provides that a person is guilty of blackmail, relevantly, if the person makes any unwarranted demand with menaces with a view to gain for that person.
On 17 March 2020, the judge sentenced the applicant to a total effective term of three years’ imprisonment, with a non-parole period of two years.[2]
[2]DPP v Kamal [2020] VCC 254, [83]–[84] (‘Reasons’). The judge stated that, but for the plea of guilty, she would have imposed a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years and six months. At the hearing of this application, counsel for the applicant informed the Court that, as a result of the applicant’s entitlement to emergency management days under s 58E of the Corrections Act 1986 because of COVID–19 lockdowns in the prison system, her earliest release date is currently around 15 April 2021.
The applicant now seeks leave to appeal against the sentence on grounds that the judge erred in finding that the offending and the applicant were ‘amoral’, and that the head sentence and non-parole period were manifestly excessive. The applicant also seeks an extension of time within which to appeal.
For the reasons that follow, the proposed appeal has insufficient prospects of success to justify extending time, and so the application for an extension of time should be…
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- AGLC
- Siti Kamal v The Queen [2021] VSCA 27
- Case
- [2021] VSCA 27
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that there was no specific error in the trial judge's characterisation of the offending. The court held that the sentence, although stern, was within the available range. The court rejected the argument that the sentence was manifestly excessive and found no basis to support the appellant's contention that the trial judge had made a specific error in characterising the offending. The Court of Appeal considered relevant authorities such as Aitkin v The Queen, Director of Public Prosecutions v Oksuz, and Loftus v The Queen. The court found that the proposed appeal lacked sufficient prospects of success, and the application for an extension of time was refused.
The Court of Appeal dismissed the appeal and refused the application for an extension of time. The court held that the trial judge did not make a specific error in characterising the offending or by excessively focusing on the moral character of the offending. The sentence of three years with a non-parole period of two years was within the available range and was not manifestly excessive. The appeal was dismissed, and the application for an extension of time was refused.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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