Legal Research
Cases
Kumar v The Queen

Kumar v The Queen

Case [2013] VSCA 191 17 July 2013

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0050

AMIT KUMAR
	Applicant
v
THE QUEEN	Respondent

---

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	1^st Revision 8 October 2013, catchwords
JUDGMENT APPEALED FROM:	DPP v Kumar (Unreported, County Court of Victoria, Judge Rizkalla, 17 October 2012)

---

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.

---

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…

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 [2013] VSCA 191
Case: [2013] VSCA 191
Decision Date: 17 July 2013

CaseChat Overview and Summary

Kumar, the appellant, appealed against his sentence for intentionally causing serious injury by glassing. The appeal was heard in the High Court of Australia. Kumar argued that the sentence was manifestly excessive given the circumstances, including his good character, remorse, and early plea of guilty. The respondent, The Queen, maintained that the sentence was appropriate given the seriousness of the crime.

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