R v Kumar - [2006] VSCA 182

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 352 of 2004

THE QUEEN
	v.
RAJINDER KUMAR

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JUDGES:	MAXWELL, P., EAMES, J.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2006
DATE OF JUDGMENT:	8 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 182

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CRIMINAL LAW – Appeal against conviction – Attempted murder – Intentionally causing serious injury – Recklessly causing serious injury – Directions on intoxication – Intoxication and intention to commit offences – Use of lies to demonstrate consciousness of guilt – Zoneff direction – Failure to seek a direction – Appeal against conviction dismissed.

CRIMINAL LAW – Sentence – Aggravating factors – Manifest excess – Low IQ of applicant – Serious violent offender – Sentences on two counts manifestly excessive – Sentence of 12 years’ imprisonment for attempted murder not manifestly excessive – Applicant re-sentenced – Total effective sentence 13 years 9 months with a non-parole period of 10 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Trapnell	Ms A. Cannon, Solicitor for the Office of Public Prosecutions
For the Applicant	Ms F.L. Dalziel	Victoria Legal Aid

MAXWELL, P.:

I have had the considerable advantage of reading in draft the reasons for judgment of Eames, J.A. I agree with his Honour’s conclusions, for the reasons which he gives, and I agree that the applicant should be re-sentenced as his Honour proposes.

EAMES, J.A.:

The applicant was convicted by a jury on count 2, a count of intentionally causing serious injury to Mamta Rani, in an incident that occurred on 11 December 2000 (“the 2000 incident”); on one count of attempted murder, of Mamta Rani (count 3); and one count of recklessly causing serious injury to Baljinder Kumar (count 6). The last two counts arose from events on 10 November 2003 (“the 2003 incident”). The applicant was acquitted on a number of counts on the presentment which constituted alternative counts relating to the two incidents. At the time of the 2000 incident the applicant was aged 25 years and he was aged 28 years at the time of the 2003 incident.

On count 2 the applicant was sentenced to six years’ imprisonment; on count 3, to twelve years’ imprisonment; and on count 6, to four years’ imprisonment. The sentencing judge ordered that nine years of the sentence for attempted murder and one year of the sentence for recklessly causing serious injury be served cumulatively with the first sentence, producing a total effective sentence of 16 years’ imprisonment. His Honour directed that the applicant serve 13 years’ imprisonment before being eligible for parole. The applicant was sentenced on count 3 as a serious offender, pursuant to s.6F of the Sentencing Act 1991

The applicant applies for leave to appeal against his convictions and sentence.

Baljinder (“Billy”) Kumar was the applicant’s brother. He had married Mamta Rani in India in 1995 and as an Australian resident brought his wife to

Australia where she lived with her husband’s parents. In 1997 Baljinder Kumar’s parents decided that…

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 R v Kumar

Details

AGLC: R v Kumar [2006] VSCA 182
Case: [2006] VSCA 182
Decision Date: 8 September 2006

CaseChat Overview and Summary

The appellant, Mr. Kumar, was convicted of attempted murder and reckless causing of serious injury. His appeal against conviction and sentence was heard by the Court of Appeal in New South Wales. The primary issues for determination were whether the trial judge erred in failing to direct the jury on the impact of intoxication on intention and whether the sentence imposed was manifestly excessive.

The court held that while the trial judge should have directed the jury on the effects of intoxication, this was not a critical error as the evidence against the appellant was overwhelming. The jury was adequately directed on the principles of recklessness and consciousness of guilt, including the use of lies to demonstrate such consciousness. The court further found that the failure to give a Zoneff direction did not lead to a miscarriage of justice. Regarding the sentence, the court found that while the sentences on two counts were manifestly excessive, the 12-year sentence for attempted murder was not. The total effective sentence of 13 years 9 months with a non-parole period of 10 years was deemed appropriate.

The appeal against conviction was dismissed, and the sentence was re-assessed. The appellant’s sentence was reduced to a total effective term of 13 years 9 months with a non-parole period of 10 years, reflecting the seriousness of the offences but also considering the excessiveness of the original sentences on two counts.

Orders