Director of Public Prosecutions v Dudha Behadur BK
[2021] VCC 1174
•21 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00424
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUDHA BEHADUR BK |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 21 May 2021 |
CASE MAY BE CITED AS: | DPP v DUDHA BEHADUR BK |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1174 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Lardner (trial) Mr N. Batten (sentence) | |
For the Accused | Mr B. Newton |
HER HONOUR:
1Dudha Behadur BK, you have pleaded guilty before me to one charge of recklessly causing injury. The facts underlying your offending are as follows - and I make the comment from the outset that they quite unique.
2At the time of this offending, you had come to Australia from Nepal in order to further your education in the accountancy field. You had been in Australia for six months and you were working as a cleaner at a restaurant in Barkly Street, Footscray, which was run by your friend and sponsor, who was in fact assisting you in your endeavours in Australia.
3You were working a day shift on 31 August 2019, but you in fact ended up working until 1 am on 1 September 2019. At that time, you decided that, as you were exhausted, you would sleep on a chair in the restaurant. While you were asleep, at 4 am in the morning, the victim in this matter, Troy Lowe jemmied open the door to the restaurant, made his way in through the car park, but eventually made is way to the kitchen area and the service area where there was a till. Using a large pair of scissors, he attempted to open the till and, whilst doing this, made a noise which woke you.
4You observed what Mr Lowe was doing, you approached him, at which Mr Lowe threatened you with a pair of scissors and told you to lie on the floor. You did not do this, however, but instead whilst Mr Lowe continued to try and open the till, walked in an agitated manner up and down - and I should say all of these actions that I am describing were captured on CCTV footage - pleading with
Mr Lowe to leave the restaurant, telling him that you would lose your job, that 400 people were due at the restaurant the next day and so forth.5Mr Lowe ignored you, eventually pulled the till from its electric socket and exited the restaurant. He then essentially retreated to the car park area, where he continued to try and open the till. For about 50 seconds after Mr Lowe left, the CCTV footage displays you walking back and forth in the kitchen, then ultimately taking a meat cleaver from the drawer and going out to the car park.
6Once you got to the car park, you ran down the ramp with the cleaver, and
Mr Lowe advanced towards you, holding out his arm, holding the till and, on your instructions, also the scissors, which at this stage you believed were a knife. The prosecution has conceded that it is not possible to say, from viewing the CCTV footage, whether in fact Mr Lowe was armed as you say, but cannot dispute that in fact he was.7In any event, when you ran at Mr Lowe, you had the cleaver in the air. Mr Lowe stepped back, but then you struck him on the back of his left hand and wrist. Mr Lowe then fell to the floor, but then got up and made his way out of the premises via the fire escape. You were then seen to pick up the items that
Mr Lowe had dropped, you restored them to the area and then called your employer.8In the meantime, Mr Lowe returned home to Williamstown, where he lived with his mother. She noted that he was injured, but he told her not to concern herself and essentially went to sleep. About two hours later, his mother entered
Mr Lowe's bedroom, saw that he was bleeding heavily from the wound and called an ambulance.9On arrival, apparently one paramedic arrived. Mr Lowe was aggressive and non-cooperative, but was taken to the Alfred Hospital, where he underwent specialist emergency surgery, for a deep open wound on his left wrist, involving factures of bones, severing of tendons and severing of nerves. Ultimately, those injuries were repaired. He had to wear an external device for about six weeks.
10In the meantime, he was charged with armed robbery and other offences and, on 3 February 2020, was sentenced by Her Honour Judge Fox of this court to a sentence of two years' and seven months' imprisonment, with a 22 month minimum term. I understand that Mr Lowe has not made a victim impact statement, but has advised the prosecution, prior to being gaoled, that the situation was that he had recovered from his injuries, but his wrist was weak and he could not lift anything heavier than a milk carton. I was informed on the plea today that as of yesterday, Mr Lowe, who remains in custody, complains that his arm will never be the same, that because he has been in custody, he has been unable to undertake the appropriate physiotherapy, that he continues to suffer pain and numbness and there is still significant weakness of his wrist, such that he no longer - he still cannot lift up anything heavier than a milk carton.
11I make the comment at this point that whilst not wishing to appear unsympathetic to Mr Lowe's plight, if you like, the fact of his being unable to undertake appropriate physiotherapy, which I accept may well have had a significant effect on his recovery is, however, a matter that Mr Lowe has essentially brought upon himself and affects, to some extent, my apprehension of the long-lasting effect of his injury and your contribution towards it in the somewhat extenuating circumstances surrounding Mr Lowe's situation.
12In any event, your employer contacted police, you made a statement to police about the armed robbery but did not mention to them the aftermath. Police conducted some investigations and had contact with the Alfred Hospital. You were returned, with the assistance of your employer, to police, where a record of interview was conducted about the injury you inflicted upon Mr Lowe. You spent two days in custody before being granted bail on 3 September 2019.
13Essentially, in that record of interview, you were very open with police about the events that had occurred. You were ultimately charged with recklessly causing serious injury.
14This matter did proceed to committal proceedings, but it is notable that on
21 November 2019, via your legal representatives, you offered to plead to a charge of recklessly causing injury. This is a charge that has ultimately been considered appropriate by the prosecution and to which you have pleaded guilty today. It is conceded by the prosecution that this was a plea, in all the circumstances, made at the earliest opportunity.15I now turn to your personal circumstances. You are now 26 years of age; you were 24 at the time of this offending. You have no prior convictions.
16You are the eldest child of your parents. You were born in the west of Nepal. You have a younger sister. Your father is a full-time soldier. He has been in the Gurkha regiment of the Indian Army for more than 28 years, and he is currently posted in Calcutta.
17For most of your life, your father's placements have been overseas, predominantly in India, and so you saw little of him, save for a few weeks every year when he returned on leave. You were therefore raised by your mother and your paternal grandparents who reside in the family home. Your mother has worked as a farmer. Your paternal grandfather has been essentially your father figure.
18You completed secondary schooling in Nepal, graduating at the top of your class, and your goal was to become an economist and to pursue a career in banking. You completed your tertiary education in Nepal, graduating with a Bachelor of Business Studies. Again, you graduated at the forefront of your class. During this time, you participated in community activities, you coached children in your local village, you participated in what was called a Community Cleanliness program, and so forth.
19After your graduation from tertiary studies, you were employed by a small banking firm, working as an assistant in the loans department, and you were selected by your employer to undertake further vocational training in the Nepalese city of Pokhara. You were delighted with this, but your mother had greater ambitions for you, and she wanted you to complete your education by undertaking studies in an international university.
20As the oldest grandson, your grandfather also wanted you to expand your wings as an example to the other members of your family, including your younger sister and your cousins. You therefore applied for a Masters Degree in professional accountancy at Charles Sturt University in Melbourne. You were accepted at the Sydney campus, but changed to the Melbourne campus because of greater educational opportunities that you saw here.
21You gained an international student visa, which permitted you to stay until
April 2021. You began study here. The fees for this course were significant, being around $44,568, with a prepaid tuition fee of $22,260, which was paid for by your parents, and took up almost all their life savings.22You came to Australia. Things went very well at first. You began your studies, and you were working long hours at the restaurant. All was changed after this particular incident.
23Police firstly seized your mobile phone, and this contained much of the work that you needed for your assignments, and whilst you made a number of requests for it to be returned to you, those requests were denied, and you fell behind.
24Secondly, and understandably, it would seem that you suffered a traumatic response, not just to the incident involving Mr Lowe but, in particular, to being charged with a criminal offence.
25Thirdly, it appeared that that traumatic response made it difficult for you to continue working in the kitchen of your employer, and he very kindly arranged for you to work at another restaurant.
26Ultimately, you felt unable to continue your studies in accountancy and you began a certificate diploma in cookery, and this has been supported and paid for by your employer, which has been very generous on his behalf, but it is not what you wanted to do.
27You were also extremely concerned that as a result of this offending, you would be placed either in immigration detention as a result of breaching bail or would be deported. You suffered a number of further disturbances, such as the theft of a bicycle, which is extremely important for you as a means of transport to your employment. You obtained another one and then the wheel on that was stolen, along with the seat.
28It would appear, from the assessment of psychologist, Carla Lechner, whose report dated 30 April 2021 on the plea, that you did develop, as a psychological response, symptoms of post-traumatic stress disorder, which at the time of the report, were largely revolved, and a continually depressed and anxious mood. She stated, 'His dreams for his future evaporated and he continues to feel as though he has let his family and community down badly'. It was Ms Lechner's view that you had presented as a low risk of reoffending.
29In all the circumstances, it is not disputed by the prosecution that a non-custodial disposition is an appropriate disposition in this case, and I agree with the submission that you should be placed on a community corrections order. Indeed, that was the submission of your counsel, Mr Newton, on your behalf.
30The circumstances of this offending are clearly unique. You felt, as I understand from your instructions to your counsel, that not only that you had a responsibility to retrieve the items stolen by Mr Lowe, but there was a cultural component in this, in that your father is a Gurkha.
31Now, the Gurkhas have a particular tradition of honour. The Gurkha regiment is seen as fulfilling a protective role, so people can sleep safely in their beds at night. They are incorruptible, and there is a duty on all Gurkha soldiers to behave in a highly honourable fashion, and this has been impressed upon you all your life. So, I accept, and indeed it was accepted by the prosecution that there was a cultural component which played into your response to the offending carried out by Mr Lowe on this night.
32In terms of what you said in your record of interview, you appear to have been motivated by a concern that your employer would terminate your employment for not retrieving the items, but also that, as a matter of honour, this was something that you should do. You therefore confronted Mr Lowe as you did. He initially responded aggressively to you when you came out in the car park. He then appears to have retreated. You then struck him with the cleaver.
33This was clearly an overreaction in terms of any self-defence component. You inflicted a very serious wound upon him, but the circumstances of this offending, as I have said, in my view, are confined and unique and were not motivated by any criminal antisocial designs.
34Indeed, it is quite clear from the psychological material and from what your barrister has told me, you are an extremely upright and law-abiding young man, such that being brought before police, being questioned, being charged with a criminal offence has been an extremely distressing experience for you, both personally and in terms of the effect that you see it as possibly having on your future career.
35Your aspiration was to come to Australia and ultimately undertake doctoral studies in accountancy. This incident has completely overset those plans in the ways that I have outlined. I am satisfied that your most uncharacteristic participation in this offending has had very serious, what are called extra curial, effects upon you. And I accept that, at the time, you were behaving in a way that you though appropriate, that you thought was honourable and correct. And indeed, from what you said to police in your record of interview, it required you to gather up, as you said, all your courage.
36In terms of the sentencing principles which a court must have regard, I am satisfied that you present no threat to the community, such that community protection is not a principle to which I must have any regard. I accept that specific deterrence is not a principle which is relevant in the sentencing exercise before me.
37Denunciation and just punishment for your offending sit very awkwardly in this sentencing exercise, given the motivations that inspired you to act as you did, and given the most unusual fact scenario comprising this case.
38I am left with general deterrence. And again, general deterrence is a difficult principle to apply in this case, again because of the motivations underlying offending in the circumstances of this case. Clearly, you inflicted a far more serious wound and behaved in a far more aggressive way than was warranted, but I also take into account the lack of sleep you had undergone, along with the other personal motivating factors that I have already outlined.
39I am going into some detail about the motivations and about the sentencing principles applicable to this case, even though there is agreement at both ends of the Bar table as to the appropriateness of a non-custodial disposition, because it has been submitted to me that I should not attach conviction to the community corrections order.
40In all the circumstances, I am satisfied for the reasons that, in my view, I have outlined at some length, a non-conviction community corrections order is appropriate in this case. I also add the possibility that a conviction may well permanently scuttle your aspirations to work in the accountancy field. Accountancy is a profession which contains a code of ethics, and I am satisfied that a conviction may well interfere with your capacity to ultimately qualify and practice in this field.
41I am therefore going to place you on a community corrections order without conviction. Now, I stated at the outset when I undertook this sentencing exercise, that it did not seem to me that you required anything other than a community corrections order with a work component. I do note that Ms Lechner does say that you would benefit from some counselling. I am happy to hear some submissions on that, Mr Newton.
42MR NEWTON: Your Honour, following the defence principle - starting principle that less is better, I just note that he has, just to - he studies, his contact hours are not inconsiderable, he has then got his work commitments ‑ ‑ ‑
43HER HONOUR: I am assuming also you would be submitting that the resolution of this case in the way that it has been resolved would relieved him of a great deal of the matters that have been of stress to him and the fact that the post-traumatic stress disorder is now largely resolved, according to Ms Lechner.
44MR NEWTON: Yes.
45HER HONOUR: is that right?
46MR NEWTON: Yes, and also his employer has indicated, in terms of the financial assistance, that the employer wants to do whatever can assist him so he could avail himself of psychological counselling services with the assistance of his employer to make those costs, Your Honour.
47HER HONOUR: All right. All right, yes. Well, in all the circumstances, given the largely resolved post-traumatic stress disorder condition, the release resolution of this case will afford him personally, and the continued assistance of the employer, it is my view that a community corrections order containing only the special condition of a work component is necessary in this case.
48I intend to impose a community corrections order of a period of 18 months, and I intend to order a work hours component of 150 hours. And, in those circumstances, it is not necessary that you be assessed for suitability for a community corrections order.
49Now, Mr BK, could you stand up, please, sir? Before I can place you on this order, I have to explain - I must get your consent and I need to outline to you the circumstances, the conditions that are attached to this order. They are that you must report to the community corrections order within two working days of the making of this order, that is by Tuesday of next week.
50While on this order, you must not commit another offence punishable by imprisonment, that means you must not offend again in the next 18 months. If you do, the order will be breached, that is you will be brought back before me and I will re-sentence you on this. Do you understand what I am saying to you?
51OFFENDER: Yes, Your Honour.
52HER HONOUR: Thank you. You must report any change of address or employment to the community corrections office within 48 hours of the making of this change. You may not leave Victoria whilst you are on this order unless you get permission from the community corrections office. You must obey all lawful directions of the community corrections office. You must report to and receive visits from the community corrections office as directed.
53Are you prepared - and I am going to order that you undertake 150 hours of unpaid community work. There will be no conviction attached to this order. Are you prepared to enter this order?
54OFFENDER: Yes, Your Honour.
55HER HONOUR: Thank you. What I am going to do, sir, is I am going to stand down to give my associate an opportunity to prepare the paperwork - yes, because I took so long, it is all ready. Mr Newton, given there is no - I am surprised there is no - apparently no Footscray community corrections office. There is one, is there not?
56MR NEWTON: Maybe it has been stolen, Your Honour. If it is Sunshine then, is it, Your Honour?
57HER HONOUR: It would be Sunshine. My associate is asking Broadmeadows, but I think that is too far away.
58MR NEWTON: No, no, no. If it is not Footscray ‑ ‑ ‑
59HER HONOUR: I am really surprised there is not a Footscray community corrections office.
60ASSOCIATE: Not in our list.
61HIS HONOUR: Not on our list. All right. We will make it Sunshine. If it turns out that there one in Footscray, we can change that.
62MR NEWTON: Yes, that would be appreciated. And Your Honour, just in terms of my loose submission in relation to the two hours' time, I just note at paragraph 18 of the prosecution opening, that Mr Lowe exited the restaurant door at 5.16 am, and then Your Honour will see in paragraph - further on in the opening, that the paramedics arrived at his mother's address at 7.48 am, so that is ‑ ‑ ‑
63HER HONOUR: All right. All right, I will just note that for the record.
64MR NEWTON: I apologise of the loose reference to the ‑ ‑ ‑
65HER HONOUR: No, that is all right, that can be sorted when I am revising the sentence.
66MR NEWTON: Yes, very well.
67HER HONOUR: All right, so we are now ready to print out the paperwork. You can have a seat, Mr BK. Thank you, Mr Interpreter. And we will get that sorted, thank you.
68MR NEWTON: Yes. Your Honour, the employer is just raising with me that he needs release of his passport because he needs to take his passport to his examination tomorrow for the Certificate III.
69HER HONOUR: Of course. No, now that this has been resolved, the passport was surrendered only as a bail conditions, so that would be released to him, yes, I would imagine.
70MR NEWTON: Yes. Yes, that would be released to him. Thank you, and I am ‑ ‑ ‑
71HER HONOUR: Thank you very much.
72MR NEWTON: ‑ ‑ ‑ was just putting the prosecution on notice.
73HER HONOUR: But you could have done that after I had left the Bench.
74MR NEWTON: I could have, Your Honour. It is not that I do not trust them.
75HER HONOUR: Thank you very much. Yes, we will get Mr BK to sign that now. Yes, thank you, we will just get you sign the order, thank you. Of course, one of the great joys of this sentence is I do not have to a s6AAA declaration. Yes, sorry. Mr Newton, could you take it down?
76MR NEWTON: Yes, I have got my glasses, Your Honour.
77HER HONOUR: Thank you.
78MR NEWTON: Your Honour, the passport might be kept with the court.
79HER HONOUR: I do not know.
80MR NEWTON: Yes.
81HER HONOUR: Look, you will have a copy of the order, he can take it with him. And once he has shown it to the registrar, that will be released. Thank you. All right, got that? Thank you, Mr Newton. Thank you very much. I thank counsel for their assistance in this matter. Good luck, Mr BK. Gents, if you remain in court, we will give you copies, obviously, of the community correction order.
82MR NEWTON: As Your Honour pleases.
83HIS HONOUR: You will need that get hold of his passport. All right, the court is now adjourned sine die, as I am going on circuit next week. Thank you very much.
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