R v Kumar - [2018] VSC 241

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0070

Between:

THE QUEEN
-and-
AMIT KUMAR	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 & 18 May 2018
DATE OF SENTENCE:	18 May 2018
CASE MAY BE CITED AS:	R v Kumar
MEDIUM NEUTRAL CITATION:	[2018] VSC 241

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CRIMINAL LAW – Sentence following trial – Contravention of family violence safety notice intending to cause fear for safety – Aggravated burglary (intent to assault/persons present) – Intentionally causing serious injury (acquitted of attempted murder) – Accused, angry and threatening, entered former partner’s flat uninvited with intent to assault male guest – Once inside, accused picked up shards of glass from broken window and slashed guest several times, wounding cheek, neck, chest, snuff box and elsewhere – Surgery required to repair wounds – Victim unable to work for two months – Significant permanent scarring to cheek and neck – Accused unable to accept relationship over – Offending occurred while on bail – Plea of guilty to summary offence of committing indictable offence while on bail – Limited criminal history – Hardship of imprisonment arising from uncertainty concerning possible deportation – Very good prospects of rehabilitation – Importance of general deterrence, specific deterrence, denunciation, just punishment and rehabilitation – Totality – Total effective sentence of seven years’ imprisonment with non-parole period of four years – Sentencing Act 1991 (Vic), ss 5 & 18.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Brown	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr N. Papas QC	Emma Turnbull Lawyers

HIS HONOUR:

Overview

A relationship breaks down

Amit Kumar and Amy Hemming began a de facto relationship in around early-2013. Ms Hemming gave birth to their daughter, Mattia, a year later. But, within a further seven months, by November 2014, the couple had separated. They had a brief attempt at reconciliation in April 2016, but that was unsuccessful.

Mr Kumar was distraught. He still loved Ms Hemming and could not accept that their relationship was over. He became obsessive. He created an online profile, with another person’s picture, so that he could chat with Ms Hemming anonymously. Also, after finishing his shift driving taxis, on occasions, he sat out the front of her house watching people come and go. Not only was he pining over unrequited love, but he was also terribly jealous of any man that Ms Hemming might be seeing.

In that state of mind, on 8 June 2016, Mr Kumar went to Ms Hemming’s flat in Caulfield East. She was in the process of moving in. At some point, Mr Kumar pushed Ms Hemming down and grabbed her car keys and mobile phone. He looked through her phone and found that she had been communicating with another man on the internet. He threatened to go to that man’s house and kill him. Ms Hemming reported this behaviour to the police.

Later that day, police arrested Mr Kumar and charged him…

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 [2018] VSC 241
Case: [2018] VSC 241
Decision Date: 18 May 2018

CaseChat Overview and Summary

Kumar was charged with serious offences arising from an incident in which he entered his former partner’s flat uninvited, with the intent to assault a male guest, and caused serious injury. Kumar pleaded guilty to a summary offence of committing an indictable offence while on bail and was tried on the more serious charges. The case was heard in the Supreme Court of Victoria. Kumar was found not guilty of attempted murder but guilty of intentionally causing serious injury, aggravated burglary, and breaching a family violence safety notice with intent to cause fear for the safety of the victim or another person.

The court considered the principles of sentencing under the Sentencing Act 1991 (Vic), including the need for general and specific deterrence, denunciation, just punishment, and rehabilitation. Kumar’s criminal history was limited, and he was on bail at the time of the offence. The court also took into account the hardship Kumar would face if imprisoned, due to the uncertainty of possible deportation. The court found Kumar had very good prospects of rehabilitation. Ultimately, the court determined that a significant period of imprisonment was necessary to achieve the objectives of sentencing, while also considering the need for proportionality and the total effective sentence.

The Supreme Court sentenced Kumar to a total effective sentence of seven years’ imprisonment with a non-parole period of four years. The court balanced the need to impose a sentence that reflected the seriousness of the offences with the potential for Kumar’s rehabilitation. The sentence also took into account the principles of general and specific deterrence, denunciation, just punishment, and the need to rehabilitate Kumar. The outcome reflects the court’s assessment of the totality of Kumar’s offending and his potential for rehabilitation, while also addressing the broader objectives of sentencing.

Orders