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Court of Criminal Appeal 29 July 2003

R v KUMAR

[2003] NSWCCA 254

Assault & violenceTraffic & driving

Citation: R v Kumar [2003] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 29 July 2003
Judge(s): Ipp JA, Hulme J, Buddin J

Background

The respondent, a 19-year-old man at the time of the offending, pleaded guilty in the District Court to two charges under s 33B of the Crimes Act 1900: using a motor vehicle as an offensive weapon with intent to commit an assault, and using a motor vehicle as an offensive weapon with intent to maliciously inflict grievous bodily harm. Both charges arose from a single incident in April 2001 in which the respondent drove his father's car at a man he had encountered with his girlfriend, striking the victim on two separate occasions. Following the second strike, the respondent also assaulted the victim with a brick while he lay on the ground.

The victim sustained a depressed fracture of the frontal sinus, a closed head injury, and multiple abrasions. He was hospitalised for several days. The respondent participated in a police interview shortly after the offences in which he substantially admitted his involvement.

In the District Court, Goldring DCJ sentenced the respondent to a fixed term of three months for the first count and 20 months with an eight-month non-parole period for the second count, both terms to run concurrently from 1 April 2003. The Director of Public Prosecutions appealed on the basis that the sentences were manifestly inadequate.

  • Whether the sentencing judge erred in declining to find that the grievous bodily harm suffered by the victim was caused by the motor vehicle strikes.
  • Whether the individual sentences, and the decision to impose them concurrently, were manifestly inadequate.
  • Whether, even if the sentence was manifestly inadequate, the Court should exercise its residual discretion to dismiss the Crown appeal having regard to prosecutorial delay and other circumstances.

Decision

The Court rejected the first ground of complaint. Hulme J identified two reasons for dismissing it. First, it was unclear whether the sentencing judge was referring to all injuries or only the most serious injury when declining to make the causation finding; finding grievous bodily harm directly caused by the vehicle would have conflicted with the De Simoni principle, because the charge to which the respondent pleaded guilty did not require proof that grievous bodily harm was actually inflicted. Second, the most serious injuries may have resulted from the subsequent brick and kicking assault rather than the vehicle strikes, neither of which formed the basis of any charge.

On sentence, the Court agreed that the three-month fixed term for the first count was not manifestly inadequate, given the absence of significant injury on that occasion, the respondent's lack of prior criminal history, and his youth. The decision to impose the sentences concurrently was also upheld, given the short period between the offences and their common emotional origin.

The Court found, however, that the 20-month sentence with an eight-month non-parole period for the second count was manifestly inadequate. Hulme J described driving a vehicle at a person at 30 to 35 kilometres per hour with intent to cause grievous bodily harm as a gross breach of civilised conduct, particularly where the respondent had already struck the victim once and had time to reflect. Youth, while a relevant mitigating factor, carried limited weight in circumstances where no great maturity is required to understand that driving a car at a person is wrong.

Despite that finding of manifest inadequacy, the Court exercised its residual discretion to dismiss the Crown appeal. The offences had been hanging over the respondent for three years, the prosecution had caused significant and unexplained delays, the Crown had altered the charges on multiple occasions, and the sentencing judge had accepted that the respondent had good prospects of rehabilitation. Hulme J noted that, had the prosecution proceeded at a reasonable pace, the respondent would likely have already completed a more substantial sentence by the time of the appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a finding of actual grievous bodily harm at sentence can be impermissible where it would, in effect, treat the offender as guilty of a more serious uncharged offence, consistent with the De Simoni principle.
  • A sentence may be identified as manifestly inadequate and yet still not be increased on appeal: the Court retains a residual discretion to dismiss a Crown appeal where circumstances such as substantial prosecutorial delay, repeated charge changes, and the respondent's rehabilitation prospects make it unjust to resentence.
  • Where multiple offences arise from a single emotional episode occurring within a short timeframe, concurrent sentences are not necessarily erroneous even for serious offending.
  • Youth as a mitigating factor carries reduced weight where the conduct in question requires no special degree of maturity to recognise as seriously wrong.
  • Unexplained delays in committal and repeated Crown-initiated adjournments were treated as relevant circumstances weighing against the exercise of discretion to allow a Crown appeal, even where the sentence was found to be inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (maliciously inflicting grievous bodily harm with intent, maximum 25 years)
- Crimes Act 1900 (NSW), s 33B (using an offensive weapon with intent to commit certain offences, maximum 12 years)

Cases:
- R v De Simoni (the De Simoni principle, relating to the impermissibility of sentencing for a more serious offence than that charged)
- Hearne (Court of Criminal Appeal decision on the relevance of youth and immaturity in sentencing)