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Kamal v The Queen

Kamal v The Queen

Case [2021] VSCA 27 25 February 2021

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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…

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 Kamal v The Queen

Details

AGLC: Siti Kamal v The Queen [2021] VSCA 27
Case: [2021] VSCA 27
Decision Date: 25 February 2021

CaseChat Overview and Summary

The appellant, Kamal, appealed against the sentence imposed by the County Court of Victoria, contending that the trial judge erred in characterising the offending as 'amoral' and excessively focusing on the moral character of the offending. The offending involved persistent demands by the appellant for payment from the parents of a dying child to return a telephone containing images of the child. The appellant threatened to erase the images or sell the telephone, although it was never in her possession. The respondent, the Crown, opposed the appeal and the application for an extension of time. The Court of Appeal was required to decide whether the trial judge made a specific error in characterising the offending as 'amoral' or by excessively focusing on the moral character of the offending. Additionally, the court had to determine whether the sentence of three years with a non-parole period of two years was manifestly excessive.

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