Legal Research
Cases
Kumar v The Queen

Kumar v The Queen

Case [2011] NSWCCA 139 6 July 2011

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kumar v R [2011] NSWCCA 139
Hearing dates: 4 March 2011
Decision date: 06 July 2011
Before: Hodgson JA at [1]
Adams J at [2]
Hall J at [50]
Decision:
(1) The time for lodging the notice of appeal is extended to 1 November 2010.
(2) Leave to appeal is granted.
(3) The sentences imposed on the appellant are quashed.
(4) In respect of count 2 the applicant is sentenced to 2 years imprisonment commencing 11 March 2009 and ending on 10 March 2011 with a non-parole period of 1 year and 6 months commencing on 11 March 2009 and ending on 10 September 2010.
(5) In respect of count 1 the applicant is sentenced to imprisonment for 3 years commencing on 11 March 2010 and ending on 10 March 2013 with a non-parole period of 2 years commencing on 11 March 2010 and ending on 10 March 2012.

Catchwords: CRIMINAL LAW - appeal against sentence - possession of child pornography - use of carriage service to access child pornography - plea of not guilty.
SENTENCING - plea of not guilty - claims of innocence made by offender - deterrence of claims of innocence not a function of sentencing.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Cases Cited: Ali v R [2010] NSWCCA 35
Mouscas [2008] NSWCCA 181
Power v DPP (NSWDC, Unreported, 19 July 2007)
R v Assheton (2002) 132 A Crim R 237
R v Booth [2009] NSWCCA 89
R v Elliott [2008] NSWDC 238
R v Gent [2005] NSWCCA 370
R v Jones [2009] NSWDC 8
R v Leonard [2008] NSWDC 211
Saddler v R [2009] NSWCCA 83
Category: Principal judgment
Parties: Rajendra Kumar (Applicant)
Regina (Respondent)
Representation: Counsel
A. Francis (Applicant)
P. McGuire (Respondent)
Solicitors
Catherine Hunter (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2008/13308
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-07-17 00:00:00

Before:

Finnane DCJ

File Number(s):

2008/13308

Judgment

HODGSON JA : I agree with Adams J.

ADAMS J :

Introduction

On 11 March 2009 the applicant was found guilty following trial by jury in the District Court of the following offences:

(a) count 1 - on or about 1 April 2008, using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth); and

(b) count 2 - between 7 August 2006 and 15 May 2008 possessing child pornography contrary to s 91H(3) of the Crimes Act 1900 (NSW).

The maximum penalty prescribed for the count 1 offence is imprisonment for 10 years and for the count 2 offence imprisonment for 5 years. In 2009, after commission of these offences, the maximum penalty for the count 2 offence was increased from 5 years to 10 years imprisonment. Sentence hearings were conducted on 7 May and 19 June 2009. For the purposes of sentencing, the Crown…

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 Kumar v The Queen

Details

AGLC: Kumar v The Queen [2011] NSWCCA 139
Case: [2011] NSWCCA 139
Decision Date: 06 July 2011

CaseChat Overview and Summary

The case of Kumar v The Queen involved an appeal against sentence for the defendant, who was found guilty of possession of child pornography and using a carriage service to access such material. Kumar pleaded not guilty to the charges, maintaining his innocence throughout the proceedings. The case was heard in the relevant appellate court, which was tasked with reviewing the appropriateness of the sentence imposed by the lower court.

The primary legal issues that the court had to address were whether the sentence was excessive, considering Kumar's plea of not guilty and his claims of innocence, and whether the deterrence of such claims should be a factor in sentencing. The court needed to balance the need for deterrence and denunciation against the principles of proportionality and individualised sentencing. The court also had to consider the impact of Kumar's persistent denial of guilt on the sentencing process.

In reaching its decision, the court emphasised that the deterrence of claims of innocence was not a function of sentencing. The court acknowledged Kumar's assertions of innocence but noted that the sentencing process should focus on the gravity of the offence and the need to protect society, rather than on punishing the offender for their denial of guilt. The court concluded that the sentence imposed by the lower court was appropriate and did not need to be altered. The court found that the sentence reflected the seriousness of the crimes and served the purposes of deterrence, denunciation, and rehabilitation.

The court dismissed the appeal and upheld the original sentence. The final orders of the court confirmed the sentence imposed by the lower court, with no modifications made. The court's decision underscored the importance of focusing on the offence and its impact on society during the sentencing process, rather than on the offender's claims of innocence.

Orders