R v Kumar

[2002] NSWCCA 95

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:    Regina v Kumar [2002]  NSWCCA 95

FILE NUMBER(S):
60448/01

HEARING DATE(S):             20March 2002

JUDGMENT DATE:               20/03/2002

PARTIES:
Regina v Prem Kumar

JUDGMENT OF:      Adams J Smart AJ    

LOWER COURT JURISDICTION:             District Court

LOWER COURT FILE NUMBER(S):        00/21/3142

LOWER COURT JUDICIAL OFFICER:   Goldring DCJ

COUNSEL:
(A)   In person
(R)   G E Smith

SOLICITORS:
(A)   In person
(R)   S E O'Connor

CATCHWORDS:
No question of principle; sentence for robbery in company not excessive

LEGISLATION CITED:
Nil

DECISION:
Extend time within which applicant may seekleave to appeal.  Leave to appeal against sentence refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60448/01

ADAMS J

SMART AJ

Wednesday, 20 March 2002

REGINAv      PREM KUMAR

JUDGMENT

1.        SMART AJ:    Prem Kumar seeks leave to appeal against the alleged severity of a sentence of three years imprisonment with a non-parole period of eighteen months for the offence of robbery in company imposed upon him in the District Court.  The judge took into account the offences of resist arrest and offensive conduct.

1. The facts were conveniently summarised thus in the Crown’s written submissions:-

   “About 3.10pm on Thursday 25 May 2001 two youths, David Robertson, aged 14, and Shane Gough, aged 16, were walking south in Northumberland service way at Liverpool when they were approached by three older males from behind.  One of those three told them to keep walking.

   The applicant then placed his arm over Robertson’s shoulders and said, ‘My friend’s got a knife.  I don’t want to have to hurt you.  Go around the corner.’

   The victims went around the corner into an isolated area of the service way.  There the applicant told them, ‘Empty your pockets’. They complied with this demand with Robertson producing his wallet and mobile phone and Gough producing his mobile phone.

   The applicant took Gough’s phone and another male took Robertson’s wallet and phone.  The three assailants then turned and ran back down Northumberland service way.  The victims ran to the back of a nearby store and spoke to Gough’s stepfather, Dominic Panetta who, with the victims closely following, commenced running after the three assailants following them through an arcade into Macquarie Street where he lost sight of them.

   Mr Panetta stopped a police vehicle in Macquarie Street and told the driver what had happened.   In the meantime, an onlooker, Stanley Togafau, had apprehended the applicant near a chemist shop.  He escorted the applicant back to the police vehicle and handed him over to police.  Robertson immediately identified the applicant and after a struggle, with the assistance of Mr Panetta and Mr Togafau, the applicant was restrained and handcuffed.  During a subsequent search police located Gough’s mobile phone and a pocket knife in the applicant’s pockets.  The applicant spat on a portable police radio and at police.

   Subsequently at Liverpool police station the applicant admitted his part in the robbery, supplied the nicknames of his companions but claimed he didn’t know their full names and their addresses.”

2. That summary was based on the statement of facts prepared by the police and the applicant’s record of interview made on the day of the offence and his arrest.

1. The applicant was born on 7 May 1981.  On 24 May 1999 the Children’s Court placed him on probation with twelve months supervision on two charges, one of aggravated robbery and the other of contravene apprehended domestic violence order.  There were other offences subsequently, namely, two of malicious damage, some serious driving offences and one of resist officer in execution of his duty.

1. The Probation and Parole report reveals that the applicant and his mother came to Australia in 1996 from Fiji.  His parents had separated.  The applicant’s response to supervision pursuant to the Children’s Court order was generally poor and he committed further offences.

1. In his report of 3 November 2000 the officer wrote that the applicant cited his associates as the primary trigger for his offending behaviour and did not appear to understand the seriousness and severity of that behaviour to that date and its impact on the victim.  The officer thought that the applicant was an immature and easily led young man.

1. In his supplementary report of 9 April 2001 the officer wrote:-

“Mr Kumar conceded that for the past six months his abuse of heroin has been central to determining the events of his life.  The offender stated his abuse of heroin, cocaine and amphetamines was a daily ritual costing upwards of $800 daily.  Mr Kumar claims he now wishes to discontinue this practice and is willing to undertake a residential rehabilitation program to ensure he remains drug free.”

1. It appears from the two reports that the applicant is able to obtain and keep employment and that in his last position he presented to work in a drug free state.

1. The officer further wrote:-

“The offender is currently in a relationship of 12 months duration, a union which recently produced the birth of the offender’s second child.  His partner has indicated she will continue to support Mr Kumar and stated she believes his abuse of heroin would be best combatted by a residential rehabilitation facility.

1. The judge noted that the applicant with the birth of his second child appreciated he had further responsibilities and was seeking to do something about his drug habit.  The judge also noted the youth of the applicant and that he had pleaded guilty at the earliest opportunity and the admissions which he made when interviewed by the police.

1. The judge took these matters into account when fixing the length of the sentence.  The judge rightly regarded the offence as serious.  Two teenage boys were put in fear.  They were particularly vulnerable.  The applicant’s age, his coming to terms with his drug problems and his prospects of rehabilitation led the judge to find special circumstances and to fix a relatively short non-parole period.

1. The applicant contended that the sentence imposed was “too much”.  He wrote:-

“I’m an ex drug user and have been clean for some months and I have a wife and a new born son that I have to look after when I get out.  I also have a job to go back to.”

1. He stated that he had learnt not to go around with people who commit crimes.

1. In a further written submission the applicant pointed out that this was his first time in gaol.  His mother had had a heart attack and as the oldest child he needs to be helping his family.  He has told the Court that he obtained the Higher School Certificate and of his employment history.  He fell into the company of bad friends.  He has recounted how his drug habits precluded him from following his chosen career and ruined his life for substantial periods.  He said that he is experiencing considerable remorse.  The terms of his submission suggest that he has been deeply affected by his period in gaol.

1. In his oral submissions to the Court the applicant told us that he had done a number of programs in gaol and that he had rehabilitated himself there.  He stressed that this was his first time in gaol and submitted that on this account he had received an unduly long sentence.  He told us that he thought that his two co-offenders had received sentences of but six months.  Apparently he had spoken to them very briefly within the prison system.

1. Mr Kumar was not able to say whether those sentences of which the co-offenders spoke related to this offence or to some other criminal activity on their part.

1. We thought that checks should be made to see what the true position was in relation to the co-offenders.  This Court accordingly adjourned the hearing of Mr Kumar’s application until later in the day so those checks could be made.

1. It is now apparent from the police incident report that the applicant is the only person who has been charged in relation to the subject offence.

1. That is not because of some sluggishness on the part of the police but is due to the fact that the applicant was only able to refer to his co-offenders by what could be described as nicknames.  They have neither been arrested nor charged because their names and addresses are not known.

1. The sentence imposed by the judge could not be regarded as a severe one.  The criminality of the applicant was unfortunately high.  He did participate in standing over two boys aged fourteen and sixteen respectively and joined in robbing them of their property after they had been threatened with the use of a knife.

1. The non-parole period set by the judge was lenient having regard to the circumstances.  It certainly took into account the applicant’s age, his prospects of rehabilitation, that this was his first experience of full time custody and all other relevant subjective features.

1. The applicant has the intelligence and the incentive to pursue a lawful life.

1. The Court cannot allow the natural sympathy it has for the applicant’s family and, to a lesser extent, for the applicant to intervene and result in a sentence which is less than that which is required by law.

1. No error was made by the judge.  He could not sensibly have imposed a lesser sentence or a lesser non-parole period.

1. I propose the following orders:-

1.Extend the time within which the applicant may seek leave to appeal.

2.Leave to appeal against sentence refused.

1. ADAMS J:  I agree with the judgment of his Honour and with the orders proposed.  Accordingly, the orders will be as proposed by Smart AJ. 

**********

LAST UPDATED:     27/03/2002