SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0050
| AMIT KUMAR | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL ACJ and BUCHANAN JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 July 2013 | |
DATE OF JUDGMENT: | 17 July 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 191 | 1st Revision 8 October 2013, catchwords |
JUDGMENT APPEALED FROM: | DPP v Kumar (Unreported, County Court of Victoria, Judge Rizkalla, 17 October 2012) | |
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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Glassing – 4 y 6 m, non-parole period 2 y 6 m – Vicious unprovoked attack – Good character, remorse, early plea of guilty – Relative seriousness of intentional and reckless glassing – Not manifestly excessive – Appeal dismissed – Winch v The Queen (2010) 27 VR 658 distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J D McLoughlin | Victoria Legal Aid |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL ACJ:
I will invite Buchanan JA to deliver the first judgment.
BUCHANAN JA:
The applicant was arraigned in the County Court and pleaded guilty to an indictment containing a charge of intentionally causing serious injury. After a plea on 17 October 2012, the applicant was sentenced to be imprisoned for a term of 4 years and 6 months. A minimum term of 2 years and 6 months’ imprisonment was fixed.
The time to file and serve an application for leave to appeal against sentence was filed on 14 November 2012. It appears from an affidavit by one Fiorella Fabian, a solicitor employed by Victoria Legal Aid, that at least from 30 October 2012, the applicant has desired to appeal against sentence. Unfortunately for him, it was not until 10 April 2013 that an application for leave to appeal was finally made.
By memorandum dated 4 November 2012, the public defender who represented the applicant at the plea stated in his opinion that there were no reasonable grounds for appeal. On 13 November 2012, the solicitor from Victoria Legal Aid, who acted for the applicant, submitted an application for financial assistance. As a result, the merits of the applicant’s case were considered by the appeals team of Victoria Legal Aid. On 17 January 2013, the appeals team advised a legal policy unit of Legal Aid that there were reasonably arguable grounds for appeal. By letter dated 6 February 2013, the applicant’s application for legal assistance was refused.
On 8 February 2013, Mr McLoughlin, a senior public defender employed by Victoria Legal Aid, was briefed to draft grounds of appeal and a written case. Mr McLoughlin completed the written case on 28 February 2013.
On 3 April 2013, Ms Fabian submitted an application for reconsideration of the refusal of funding to the applicant. On 5 April 2013, Ms Fabian was notified that
legal assistance had been granted. Accordingly, on 10 April 2013, an application for leave to appeal against sentence was lodged.
The applicant cannot be blamed for the delay and it…
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- AGLC
- Kumar v The Queen [2013] VSCA 191
- Case
- [2013] VSCA 191
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the sentence was manifestly excessive and whether the comparison to a case involving reckless glassing was appropriate. The court was required to consider the principles of sentencing for intentionally causing serious injury and the relevance of good character and remorse in determining an appropriate sentence. The court also needed to examine whether the comparison to the case of Winch v The Queen was suitable in this context.
The court found that the sentence was not manifestly excessive. The appeal was dismissed based on the relative seriousness of the intentional glassing and the mitigating factors presented. The court distinguished this case from Winch v The Queen, noting that the comparison was not appropriate given the differences in the nature of the attacks and the presence of mitigating factors in Kumar’s case. The court held that the sentence reflected the gravity of the offence and the need for deterrence.
The High Court dismissed the appeal and affirmed the sentence handed down by the lower court.
Orders
Orders of the court
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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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