New South Wales Court of Criminal Appeal CITATION : R v KUMAR [2003] NSWCCA 254 HEARING DATE(S) : 29 July 2003 JUDGMENT DATE : 29 July 2003 JUDGMENT OF : Ipp JA at 26; Hulme J at 1; Buddin J at 27 DECISION : Appeal dismissed PARTIES : Regina Daniel Kumar FILE NUMBER(S) : CCA 60124/03 COUNSEL : Crown: GIO Rowling Respondent: AP Cook SOLICITORS : Crown: SE O'Connor Respondent: DJ Humphreys LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3089 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : - 6 - IN THE COURT OF CRIMINAL APPEAL 60124/03 IPP JA HULME J BUDDIN J Tuesday 29 July 2003 R v Daniel KUMAR Judgment 1 HULME J: This is an appeal by the Director of Public Prosecutions in respect of sentences imposed in the District Court by his Honour Goldring DCJ on 1 April last. It is submitted that the sentences imposed were manifestly inadequate. 2 The respondent had pleaded guilty to two charges, of using an offensive weapon, namely a motor vehicle, firstly with intent to commit an assault, and secondly, with intent to maliciously inflect grievous bodily harm. Both charges arise under s 33B of the Crimes Act 1900 which provides for a maximum penalty of 12 years imprisonment. 3 In respect of the first count Goldring DCJ sentenced the applicant to imprisonment for a fixed term of 3 months. In respect of the second count the applicant was sentenced to a term of imprisonment for 20 months with a non-parole period of 8 months. His Honour directed both terms be served concurrently, both sentences taking effect from 1 April 2003. 4 During the afternoon of 24 April 2001 the respondent received a telephone call from his girlfriend's brother, a Neil Singh, suggesting he join Mr Singh. The respondent then borrowed his father's car and drove to a park in Ingleburn. There he observed his girlfriend, Jaswin Singh, together with the victim and met with Neil Singh and a Jonathon Bekkema. 5 There followed an argument between the respondent, Jaswin Singh and the victim, culminating in Jaswin and the victim leaving together. The respondent followed them in his vehicle and proceeded to drive so as to strike the victim on his right knee and causing the victim to be thrown over the bonnet and into the front lawn of a house. His Honour found that the victim had been walking on the footpath when struck. It may be that in fact he was on the edge of the road but the difference is not material. 6 Some time then elapsed. His Honour found that there was a fight and the respondent attempted to take Miss Singh's hand and lead her away. She refused to go with him and the respondent, Mr Singh and Mr Bekkema drove away. There was also evidence that the victim and Miss Singh had had a conversation with the house owner into whose yard the victim was thrown and that it was later that the fight had occurred. 7 Be that as it may, Miss Singh and the victim resumed their walking, this time certainly on the footpath of Blue Gum Avenue. Miss Singh was some distance ahead of the victim. When the victim was approximately 150 metres from the site of the first incident he heard the noise of a motor engine revving and then he was hit again by the vehicle. The respondent had driven his vehicle over the concrete gutter onto the grassed footpath. The respondent's own estimate of the speed the vehicle was travelling at the time of impact with the victim was between 30 and 35 kms per hour. Immediately after hitting the victim the respondent collided with a brick fence belonging to number 10 Koala Avenue which ran along the footpath boundary causing substantial damage to it. 8 The respondent, along with Mr Bekkema and Neil Singh who were present with the respondent in the vehicle, ran towards the victim who was laying face down on the ground. Whilst on the ground the victim felt two impacts to the back of his head and saw the respondent standing over him holding a brick. After experiencing further pain suggestive of being either kicked or punched the victim observed Jonathon Bekkema and Neil Singh dragging the respondent away from him. 9 As a result of the incidents the victim sustained a depressed fracture of the frontal sinus region and a closed head injury along with multiple abrasions to his face, back and back of his head. While he could walk away from the scene, when he was taken to hospital he remained there for some days. 10 His Honour declined to "find beyond reasonable doubt that the harm which Mr Karan suffered was in fact a result of the impact with Mr Kumar's vehicle". This decision by his Honour formed the Crown's first cause of complaint. In my view that complaint should be dismissed and this is for two reasons: Firstly, it is not clear precisely what the "harm" was to which his Honour referred. I doubt in the context that his Honour was referring to all of the injuries suffered, and I think he was referring only to the most serious, that most serious constituted grievous bodily harm. 11 For his Honour to find that grievous bodily harm had been inflicted would have conflicted with the principle for which De Simoni stands as authority, for it would have amounted to a finding, in light of the plea to the offences which were charged, of an offence under s 33 of the Crimes Act which carries a penalty of imprisonment for 25 years. The Crown had indeed at one stage charged the respondent with an offence under s 33 but had abandoned it. 12 The second basis upon which this complaint should be dismissed is that it is not clear whether this most serious injury arose from the kicking, which some evidence suggests had occurred, or the hitting of the victim with a brick - again events which did not form the basis of any charge proffered by the Crown. 13 The second ground of complaint is that the sentences imposed were individually, and in his Honour's making of them concurrent, manifestly inadequate. With part of this complaint I agree. 14 At the time of the commission of the offences the respondent had no criminal record and although the first offence was serious it would seem that it occasioned no significant injury. The respondent could pray in aid of mitigation his youth - he was born in May 1981 - and his Honour would have been within his rights not to sentence the respondent in respect of that offence, had it stood on its own, to a sentence of full-time custody. 15 Thus, I do not agree that the sentence of 3 months imprisonment which was imposed is manifestly inadequate. Nor, having regard to the shortness of the period over which the two offences were committed and to the inspiration for them, namely, jealousy and anger, which the respondent suffered in consequence of his girlfriend's actions, do I regard his Honour's decision to make the sentences on the two offences concurrent, as an error. 16 I am, however, of the view that the sentence imposed on the second offence was manifestly inadequate. To drive with a motor vehicle at anyone at a speed of 30 to 35 kms an hour is a gross breach of civilised conduct. To intend to impose grievous bodily harm on someone else is also such a breach. To do both of these things in circumstances where, whatever emotion the respondent have experienced at seeing his girlfriend and the victim in the park, the first incident and the passage of time should have brought him to his senses, is conduct which is much to be criticised. 17 It was pleaded on his behalf that the Court should take into account his youth and reference was made to the decision of this Court in Hearne. Undoubtedly, youth is a factor to be taken into account but in my view, as was made clear in Hearne, it is not youth per se but rather immaturity which is an incident of it. It takes no great maturity to know that one should not drive a motor vehicle at another person and I regard the respondent's youth, while relevant, as entitled to relatively little weight so far as the actual commission of the second offence is concerned. 18 Against the statutory maximum of 12 years imprisonment, 2 years is extremely, and in my view, manifestly light. So is the non-parole period of 8 months which was imposed. Both periods should, in my view, have been substantially, perhaps very substantially, higher. 19 The Court's attention was directed by counsel appearing for the respondent to the history of proceedings. The offences as I have said occurred on 24 April 2001 on which date the respondent was charged. He participated in an ERISP at that time in which, in practical terms, he admitted his involvement in what had occurred. Certainly what he had to say lacked some elements of detail but that was clearly available to the authorities through the medium of other witnesses. It took until March 2002, 11 months, for him to be committed for trial. The reason for that delay is not apparent but it is a significant period in what seems to me to be a very simple case. 20 The matter was mentioned in the District Court on 22 March and then again on 4 April for arraignment. The Crown sought an adjournment. Thereafter the Crown sought a number of adjournments. It also had the respondent arraigned on a number of occasions on a number of different charges. 21 On 3 June they were "Inflicting grievous bodily harm with intent to murder" and the first of the charges which was ultimately pursued. There was a plea of not guilty to the first, a plea of guilty to the second, a plea which the Crown accepted in full satisfaction of the indictment. 22 The Crown then changed its mind. On 31 August it withdrew the earlier indictment and presented another. That contained the first of the offences presently under consideration and a second of "Driving a motor vehicle with intent to murder" and a charge under s 33 of "Maliciously inflicting grievous bodily harm with intent to inflict such harm". 23 The Crown was not prepared then to accept a plea of guilty in full satisfaction of the indictment and on 31 March 2003, some 6 months later, the respondent was re-arraigned. 24 Had the prosecution proceeded at a reasonable pace, even if the applicant had been sentenced to a non-parole period of custody double that which he was sentenced to, he would be most probably out of gaol now, certainly he would not have long left to serve. 25 He was at the time of the offences but 19 years of age and the offences and the sentences which were imposed have been hanging over his head or enduring now for 3 years. The learned sentencing judge accepted that the respondent had good prospects of rehabilitation. These factors lead me to the conclusion that, notwithstanding the manifest inadequacy which there was in the sentence which was imposed for the second count, this Court in the exercise of its discretion should dismiss the Crown appeal. 26 IPP JA: I agree with Hulme J. 27 BUDDIN J: I also agree. 28 IPP JA: The order of the Court will be that the appeal is dismissed. ********** Last Modified: 09/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.