Director of Public Prosecutions v Kanthaseelan
[2015] VCC 1824
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01523
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SINNATHAMBY KANTHASEELAN |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2015 | |
DATE OF SENTENCE: | 18 December 2015 | |
CASE MAY BE CITED AS: | DPP v Kanthaseelan | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1824 | |
REASONS FOR SENTENCE
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Subject: Aggravated burglary
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Fisher | John Cain Solicitor for Public Prosecutions |
| For the Accused | Ms E King | Victoria Legal Aid |
HER HONOUR:
1 You, Sinnathamby Kanthaseelan have pleaded guilty before me to one charge of aggravated burglary. The maximum penalty for this offence is 25 years' imprisonment.
2 On 27 February 2015 at 3.30 pm, you and the co-accused Sellakkumar Thankakulasingam went to 74 Herbert Street, Dandenong (“the house”). Meera Yasokaran ("the victim") and her husband lived at the house with their eight month old daughter. They also had three housemates who lived at the house. You had resided with the victim and her husband for two to three months some 18 months before the offence. You had not had contact with each other since 2013.
3 You and the co-accused entered the house through the back door. You had either a large knife or a meat cleaver at the time you entered the premises. Once inside the house, you and the co-accused went to a bedroom where you found the victim and her baby daughter.
4 You started to yell at the victim demanding to know where her husband was. The victim, who was holding her baby daughter at the time, told you that her husband was not there. At that point, you became enraged, produced the knife and began hitting the bedroom wall with it.
5 A short time later, you and the co-accused left the house. As you did so, the co-accused told you that you needed to leave some evidence that you and the co-accused had been at the house in order to intimidate the victim’s husband. In pursuit of that intention, the co-accused encouraged you to “chop the house.” You then used the knife to smash the glass panel on the front door, as well as three windows at the front of the house.
6 This activity caused you to cut your right hand on some broken glass. As a result, a significant amount of blood was left at the house.
7 After you and the co-accused had left the house, the victim telephoned the police, who arrived a short time later. As part of the investigation, some forensic material was discovered at the house.
8 While the police were still present at the house, the victim’s husband arrived. He subsequently took the police to the house he believed you and the co-accused lived in. That house was at 48 King Street, Dandenong.
9 At about 6.30 on the evening of 27 February 2015, the police went to 48 King Street, Dandenong. Upon arriving at that address, they saw a trail of blood along the front path to the front door. The police also saw a blood stained t-shirt on the ground next to the path.
10 When the police knocked at the door, you appeared with a bandage wrapped around your right hand. After a short conversation, you produced a meat cleaver.
11 You were arrested on that night and taken to the Dandenong police station where you participated in a formal record of interview. During the interview, you made some partial admissions but denied the allegations. At one point you stated that you were too intoxicated to remember what had occurred.
12 The facts in this case are very serious. The aggravating aspects include the element of pre-planning and the use of a weapon.
13 There is a victim impact statement in this matter.[1] The victim states that her life has changed because she has become worried and anxious. She is afraid to go out and leave the house without her husband and does not like to stay at home alone. I accept that the victim suffered considerably in the manner described in that statement as a result of your actions.
[1] Exhibit D.
14 As has been pointed out by your counsel, there are, however, some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated early your intention to plead guilty to this charge. Although there was a committal, discussions to resolve the matter commenced immediately after the committal hearing, and you indicated your intention to plead guilty to the amended charge of aggravated burglary at the initial directions hearing.
15 You were cooperative with the police when they attended at your residence. You produced a meat cleaver without the police having to search your property. You have struggled to provide a reason for the offending behaviour.
16 You have expressed remorse for your actions. Your counsel has advised that although you have no memory of the offending, you accept your role in the offending and that the victim and her eight-month-old daughter would have been terrified by the incident. A report dated 5 October 2015 by Warren Simmons, psychologist, was tendered on your behalf.[2] Mr Simmons stated that you expressed remorse for your actions and did not seek to justify what you did. In the circumstances I accept that in your case, your plea indicates remorse for your actions.
[2] Exhibit 1.
17 I have been told something of your personal history and your circumstances. You were born on 3 September 1974 in Kopay , a small village in the Jaffna region of Sri Lanka You grew up in Kaithady, a smaller village nearby. You are 41 years old. At the time of the offence you were 40 years old.
18 You have two elder brothers aged 47 and an elder sister, who is 44 years old and still resides in Kaithady. You also have a younger sister aged 40, who now resides in the Netherlands.
19 Your family owned a large piece of land on which they grew various crops including vegetables and tobacco. Your parents are both deceased. Your mother died from cancer in 2004 when she was 60 years old.
20 You have not had a peaceful or straightforward life or upbringing. You attended school to grade seven. Your education was affected by the almost daily interference by the army and military in your home town. You were also subject to continuous curfews.
21 You first came to know a feeling of displacement in 1986 in the town of Kaithady. At that time the Liberation Tamil Tigers were intending to attack your village. The Tamil Tigers intended to blow up a water truck in your village but they did not make it there. Instead the explosion took place a few kilometres away from your village. As a result, forty people were killed and you and people from your village went to see what had happened. You saw the bodies and remains of people who had died.
22 After that incident you found school even more difficult and you had to repeat year seven several times. You ultimately failed year seven.
23 Your father died in 1998, aged 52, from a ruptured liver after he had been hit in the abdomen with a gun butt. As a result of your father’s death, your family experienced difficulties and your older brother commenced work. You then joined your brother in work to assist him. During the whole time in Sri Lanka, you managed to find farming work.
24 You were first married in 1998 when you were 24 years old. Your wife died of complications from malaria three years after your marriage. You have one child from that relationship; a son who is 16 years old. He lives with your older sister in Kaithady.
25 In 2002 there was a peace settlement in Sri Lanka, and you then spent two years working on a nearby farm. The peace agreement broke down in 2003.
26 You remarried in 2003 when you were 28 years old. You are still married to your second wife, however she remains in Sri Lanka with your two sons, aged 13 and ten.
27 You moved back to the Jaffna area in 2003. Around that time conflict recommenced in the area and the Tamil Tigers were active in a terrorist sense, and so was the Sri Lankan army. Living in an area where the Tamil Tigers were present, you witnessed fighting between the Tamil Tigers and the Sri Lankans. You were constantly surrounded by shell attacks and people were injured and shot. You felt that you had to go into hiding, and you ultimately moved to Colombo with your second wife, where you stayed for six months.
28 You attempted to travel to Malaysia, but when you and your wife arrived in Singapore, your agent had disappeared with your money and you had to be returned to Colombo.
29 You later travelled to India, leaving your second wife and two sons in Sri Lanka. Whilst in India you found work as a labourer unloading ships for a firecracker company for a period of six months. You also worked in the actual factory for a period of four months.
30 After that period of time you chose to leave by boat and headed for Christmas Island by boat. During the time that the boat was on the high seas, you felt worried that you might not survive and worried about your wife and children that you had left behind. You arrived at Christmas Island in 2010 and remained there in detention for 14 months.
31 You applied for a visa to Australia on the basis of refugee status and were granted a visa in July 2011. You were granted a permanent residency visa in July 2011. You are not a citizen.
32 In Australia you performed largely unskilled work due to a lack of qualifications. You always tried to find work. You first lived in Rockhampton and worked in an abattoir. You then moved to Melbourne, living in Dandenong. You studied English at AMES. You gained employment working in a factory. You moved back to Queensland and worked in an abattoir in Brisbane for 8 months. You returned to Melbourne and then found work in an almond factory in Robinvale. You then moved to Tasmania and engaged in seasonal apple picking work for 43 months. When you were in Tasmania, you found that your wife had been unfaithful to you in Sri Lanka.
33 You then returned to Dandenong but were unable to find work. You felt emotionally affected by the news that your wife had been unfaithful to you. The relationship is now over, however you remain in contact with your wife for the sake of your sons.
Alcohol use
34 You first experimented with alcohol when you were 31 years old and residing in Colombo. You were drinking up to a bottle of spirits a night.
35 Your drinking has been problematic in Australia. You would drink to excess so that you could sleep. You would use alcohol as a distraction from your concerns about your children in Sri Lanka. Your drinking also increased after you realised that your relationship with your wife was over. You had been drinking on the night of this offence and were significantly intoxicated at the time.
36 You have no prior convictions. I sentence you as a person of previous good character.
37 I am told that you no longer wish to use alcohol as a coping mechanism. A community correction order assessment outcome report states that Community Correctional Services has assessed you as being at medium risk of re-offending, according to the Level of Service Risk Assessment Tool. In his report Mr Simmons stated that the likelihood of further offending would be decreased “should he be able to address his substance use”. I am, on balance, satisfied that the chances of your rehabilitation are reasonable.
38 Your co-offender has not yet been dealt with by a court, and as a result I am unable to take into account parity of sentence.
Migration
39 You were granted a permanent residency visa in July 2011. You had intended to apply for citizenship but your plans were interrupted by this offending behaviour.
40 In Guden v R[3] the Court of Appeal stated:
"The fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon[4] that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious 'punishing consequence' of the offending."
[3] (2010) 28 VR 288 (Guden).
[4] [2004] NSWCCA 456
41 The Court made it clear that an offender bears the burden of establishing that the prospect of deportation is more than a speculative possibility before it can be taken into account because:
"The sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed…as 'a completely speculative possibility'.”
42 The Migration Act 1958 ("the Act") has been amended since Guden was decided. Relevantly, s.501(3A) has been inserted into the Act. That section provides;
"The Minister must cancel a visa that has been granted to a person if:
(a) The minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph 6(a)(substantial criminal record), on the basis of paragraph 7(1)(b) or (c);
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory."
43 A person does not pass the character test if that person has a "substantial criminal record". Section 501(7) (c) of the Migration Act 1958 provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
44 In DPP v Zhuang[5] the Court of Appeal stated that the amendment to the Migration Act 1958 (Cth) by the insertion of s501(3A)[6] requires the relevant minister to cancel a visa if the visa holder has been sentenced to a term of imprisonment of 12 months or more.
"That prospect presently being capable of quantification, it is now a mitigatory factor which, as the judge had already found, would increase the burden of her sentence. Whether the approach explicated in the authorities of Guden and Peng[7] will continue to apply in the light of the amendment to the Migration Act which renders deportation certain in the case of certain offences, is not a matter we need to consider.”
[5] [2015] VSCA 96.
[6] With effect from 11 December 2014.
[7] [2014] VSCA 128
45 Your counsel submitted that I should take into account both of the principles stated in Guden. The decision to cancel the visa is mandatory. What the minister might do after cancelling the visa, that is a matter for the executive and is something that the court cannot take into account.
46 I accept your counsel’s submission that during the term of your imprisonment, you have faced and will face the possibility that you might be deported upon release. I accept that the burden of imprisonment is greater for you than for someone who faces no such risk. It is not necessary for me to consider the second principle stated in Guden in the circumstances of this case.
47 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Defence submissions on sentence
48 The circumstances of the aggravated burglary are undoubtedly serious. You were armed with knife and the victim was clearly terrified. Your counsel asked me to take into account your guilty plea, your lack of prior history and your troubled and unsettled background. Your counsel submitted that notwithstanding the seriousness of the offending a combination of a term of imprisonment plus a community correction order would be an appropriate sentence.
49 In Boulton & Ors v The Queen[8] the Court of Appeal stated:
"A CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation."
[8] [2014] VSCA 342, [131].
50 This is without doubt a serious offence. Section 5(4C) of the Sentencing Act 1991 provides that the court must not impose a sentence that involves the confinement of the offender, unless it considers that the purposes for which the sentence is imposed cannot be achieved by a community correction order with appropriate conditions. In all the circumstances, I have no alternative to the imposition of a custodial sentence, but having regard to your early plea of guilty, your remorse and the lack of prior convictions, I propose to order that you serve a term of imprisonment for eleven months followed by a community correction order for a period of three years.
51 As you know, I have sought and received a pre-sentence report in this matter. That report indicates that you are considered a suitable candidate for a community correction order. Could you please stand. I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose.
52 First, the length of the order will be three years. Every Community Correction Order, including the one I propose in this case, contains certain core conditions. They are:-
1You must not commit another offence punishable by imprisonment during the period of the order.
2.You must comply with any obligation or requirement prescribed by the regulations.
3.You must report to, or receive visits from, the Secretary during the period of the order.
4You must report to the Dandenong Government Services Office within two working days after you are released from custody.
5.You must notify the Secretary of any change of address or employment within 2 clear working days after the change.
6.You must not leave Victoria except with the permission of the Secretary.
7.You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
53 The conditions that apply in addition to the mandatory terms are:
1.You must perform 250 hours of unpaid work over a period of 36 months as directed by the Regional Manager.
2.You must be under the supervision of a Community Correction Officer for a period of 36 months.
3.You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager.
4.You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the Regional Manager.
5.You must undergo programs consistent with the purpose of treatment and rehabilitation, which may include but is not limited to employment, educational, cultural and personal development programs as directed by the Regional Manager.
6.You must undergo programs that address factors related to your offending behaviour.
54 You must realize that if you breach the order you should expect to be brought back to court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made if that occurs. Ms King, do you want to approach your client before I ask him if he consents?
55 MS KING: I will, Your Honour.
56 HER HONOUR: Thank you.
57 MS KING: I've got no concerns about his understanding, Your Honour.
58 HER HONOUR: Do you consent to the making of a Community Correction Order containing the terms I have outlined?
59 OFFENDER: Yes, Your Honour.
60 HER HONOUR: Thank you. I propose to record a conviction on Charge 1 and sentence you to a term of imprisonment of eleven months. I will also impose a community correction order that commences upon your release from custody for a period of three years. How many days of pre-sentence detention?
61 MS KING: Two hundred and ninety-four?
62 HER HONOUR: Do you agree with that, Mr Fisher?
63 MR FISHER: Yes, I do.
64 HER HONOUR: Thank you. I declare that you have served 294 days by way of pre-sentence detention in relation to this sentence, and direct that that declaration be recorded in the records of the Court.
S.6AAA
65 Section 6AAA of the Sentencing Act 1991 requires me to state the sentence that I would have imposed but for the plea of guilty. Your plea has saved time, expense, and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years. I would have directed that you serve a period of 32 months before being eligible for parole.
66 MS KING: I'll have my client sign the orders.
67 HER HONOUR: Yes, please.
(Community-based order signed and acknowledged.)
68 I have signed that order. Are there any further matters, Mr Fisher?
69 MR FISHER: No, Your Honour, thank you. No thank you.
70 HER HONOUR: Yes, could you please take Mr Kanthaseelan into custody. Adjourn the court sine die.
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