Director of Public Prosecutions v Kaur (a pseudonym)

[2021] VCC 1394

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

V

SANDEEP KAUR (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2021
DATE OF SENTENCE:	17 September 2021
CASE MAY BE CITED AS:	DPP v Kaur (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1394

REASONS FOR SENTENCE

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Catchwords:              Criminal law - sentence      

pleaded guilty to 2 charges recklessly cause injury – 2 charges common law assault – one charge intentionally damage property – victims, wife and 2 daughters -  two incidents -          offending at higher range of seriousness -  aged 35 years old – Indian National now faced with deportation -  no prior convictions -   ice and alcohol dependence -  Covid restrictions in prison -  general and specific deterrence – combined sentence  not in range.

Cases Cited:Saxton v R [2017] VSCA 357

Sentence:3 years with non parole period of 2 years – 524 days pre sentence detention

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr F Cameron	DPP
For the Accused	Mr N Brown	Nelson Brown Legal

HER HONOUR:

1Sandeep Kaur[1], you have pleaded guilty to two charges of recklessly causing injury, two charges of common law assault and one charge of intentionally damaging property.  You have also pleaded guilty to a summary charge of contravention of a family violence intervention order.    The maximum penalties for these offences are as follows: five years imprisonment for recklessly causing injury and common law assault, 10 years for criminal damage and two years for contravention of an intervention order. 

[1] A pseudonym.

2The victims of these offences were your wife  and your two daughters.  There were two incidents; the first was on 23 March 2020 when you were at home with your family talking about the need to move from your house due to a warrant of possession having been served for non-payment of rent.  Your wife asked you why you had not paid it as she had given you the money for it.  Your children were in the bedroom with you and you became enraged at being questioned in front of them and you slapped her face and pulled her hair.  As your wife ran from the room to ask for help from your cousin, she heard you slap your elder daughter once on the face and your younger daughter twice on the face and heard you tell them both not to say anything. 

3As your wife tried to get help from your cousin, you grabbed her and pulled her back into the bedroom.  The children had left the room and you locked the door from the inside, leaving your wife alone with you.  You slapped her and continued to abuse her verbally.  Your cousin shouted at you to stop and was banging on the bedroom door but you ignored him.  The assault lasted for between 10-15 minutes, during which time you threw a metal thermos at your wife which completely shattered the glass shower behind her in the ensuite bathroom.  You hit her three or four times with a piece of plastic from a child's toy.  You threatened to hit her with a belt and you threw her mobile phone. 

4Your wife took photographs of the injuries to her body afterwards and of the red mark on your younger daughter’s face caused by you and of the damage to the shower.  She sent the photos to her friend who told her to go to the police.  The offending that day gave rise to Charge 1, recklessly causing injury and Charges 2 and 3, each a charge of common law assault against each of your daughters.

5The second incident was on 11 April 2020 when you were at home with your wife and the children in a bedroom at the front of the house.  Your cousin was in his bedroom and your friend and her small child were in another bedroom at the rear of the house.  It was a Saturday and you had been planning to join some male friends at a party that afternoon.  The request by your wife to go shopping for groceries first seems to have been the last straw for you.  You became angry because she had not told you earlier about the need for groceries and insisted that you and she go straight away.  You got angrier and the argument escalated.  You told her the things about her that annoyed you and began slapping her and pulling her hair.  The children were present in the room, drawing pictures, talking and laughing.  This made you angrier and you demanded to know why they were laughing.  You told them to leave and you picked up an electronic tablet belonging to your daughter and threw it across the room, causing it to break.  The children left the bedroom and went into the loungeroom.

6In the bedroom, you picked up a power cord and began beating your wife with it whilst continuing to verbally abuse her.  You threatened to beat anyone who entered the room and you began whipping your wife with the power cord which had the wire exposed on the end.  She fell to the floor and you continued to beat her.  She tried to grab a blanket to shield herself from the beating and you ripped it from her hands and continued beating and kicking her while standing over her.  You then picked up a plastic toilet plunger from the ensuite bathroom and hit her with it on her back and the back of her head while continuing to abuse her verbally, saying repeatedly that you would, 'Fuck,' her mother and sister, that you did not love her and that she was not a good human being.  When your wife asked you to stop saying those things as your eldest daughter could understand, you stated, 'I don't care about the children, I'll fuck them.'  You then put both hands around your wife's neck and strangled her.

7The beatings lasted for roughly 10-15 minutes but occurred over a period of about 90 minutes.  Afterwards, your wife asked you if she could get a glass of water.  You left the bedroom and returned with a glass of water but threw it at your wife and repeated this with the second glass of water.  Then you poured a third glass of water over her face.  Your elder daughter had observed you slapping, punching and kicking her mother and saw that her face was swollen and bleeding.  She heard you say, 'Oh, today your mum is going to die.  Say goodbye, you'll never see her again.'  Your daughter called triple 0, asking for police assistance as she was scared of what you were going to do to her mother.  Your offending that day gave rise to Charge 4, recklessly causing injury and Charge 5, criminal damage in relation to the computer tablet.

8The police attended the house and your wife opened the door to them, in visible distress and pain.  An ambulance was called and your wife was photographed and she was taken to hospital for further examination.  You were arrested and interviewed later that afternoon and remanded in custody.  You told the police that the argument that day had escalated because of your stress from losing your job as a taxi driver.  That stress also caused you to have little memory of what had occurred, beyond initially pushing your wife three or four times.  You could not remember any assaults or words that were said or having inflicted any injuries on your wife. 

9Two days after her hospital examination, your wife was examined by a forensic medical officer who found multiple areas of bruising to her head, upper limbs, lower limbs and back. This indicated blunt force trauma such as a blow, a knock on a hard surface, grabbing or sustained pressure.  The doctor found bruising patterns consistent with force from various items, including a sink plunger, a shoe tread and a power cord.  She noted a subconjunctival haemorrhage over the right eye, indicating trauma of increased venous pressure resulting in small blood vessel rupture.  The doctor's opinion was that the combination and variety of injuries to different parts of the body made it likely that they were intentionally, rather than accidently, inflicted. 

10A second physician reviewed this opinion and the findings and confirmed that the injuries were highly unlikely to be accidental, and that they were consistent with the result of an assault and with being defensive injuries.  There was evidence of more than one blow to the head and the impact to your wife's eye had caused displaced fractures of her eye socket and cheekbone.  The forensic physician considered that these were significant fractures.    

11On 12 April, the day after the assaults, a full Interim Family Violence Intervention Order was granted and served on you. The order included your daughters as protected persons.  On 29 April, your wife reported that she had received a letter from you sent from prison saying happy birthday to your daughter, that you missed them all and that you would be there to celebrate her next birthday.  You stated that you were sorry and wished you could be with them. 

12Your wife has provided a Victim Impact Statement in which she describes the hardships she now experiences being alone and bringing up the children alone.  In this regard, she feels that her life has finished and has been ruined.  She recovered from her injuries but these were very painful for a time and she was unable to care for the children for a few days nor was she able to work for a week.  She had to pay for her medical expenses of some $1200 as she has no health insurance and does not qualify for Medicare.  Her mobility has been very much curtailed as she does not drive and used to depend on you for this. 

Gravity of the offending

13The gravity of your offending requires me to sentence you taking into account the need for general deterrence as a significant priority.  Violence, in any form, is to be condemned but violence against family members involves a serious breach of trust. Victims are entitled to feel safe in their own homes and in the company of those who are supposed to cherish and protect them.  The sentence I impose should act as a deterrent to others and also to deter you from further offending. 

14The higher courts have recently endorsed severe penalties imposed on family violence offenders, consistent with the need to reinforce the abhorrence felt by the community regarding such offending.  Family violence is often facilitated by the power imbalance which is frequently experienced by women who may be dependent on their partners for financial and other forms of assistance, as indeed was your wife.  Fortunately, she and your daughter had the strength to call for assistance which brought an end to your offending and you were arrested and charged. 

15Mr Brown, who appeared on your behalf, conceded the seriousness of your offending and Mr Cameron for the prosecution submitted that an assessment of the seriousness of this instance of recklessly causing injury should place it at a higher level.  The injuries shown in the photographs contained in the depositions appear to be very extensive and marked by obvious abrasions and bruising, with broken skin and blood appearing on the left fifth finger and the left ankle.  The offending is aggravated by the fact that there were two incidents almost three weeks apart and the children, aged 10 and seven then, were present on both occasions and were assaulted by you on the first occasion.  Although the assaults on the children were less serious than those inflicted on your wife, the context of them witnessing your assault on her and her seeking assistance from your cousin, followed by the extension of this episode when you locked the children out of the room while you continued to beat her, is a serious aggravating factor.  You even ignored your cousin's entreaties for you to stop. 

16The computer tablet belonging to your wife but used by your elder daughter, was smashed by you when you threw it across the room.  Additionally, you inflicted some of the injuries using a power cord and other items as weapons and that is, in itself, a further aggravating feature.  The impact on your wife's life, and by extension on the lives of the children, must also be considered.  Taking all of those combined circumstances into account, I find that the offending was indeed at the higher range of seriousness for this type of offending. 

Personal circumstances

17I turn now to your personal circumstances.  You are aged 35 and you were 33 at the time of the offending.  You are an Indian national, having been in Australia since 2009, arriving on a student visa.  You were already married to your wife, which was a marriage arranged by your respective parents when you were children. Your first child had been born by the time you arrived here.  In Melbourne you studied automotive engineering and graduated at certificate level.  In 2014 you found full-time employment with an automotive company which sponsored you as a skilled migrant. 

18Since 2009 you made two visits to your family in India and at the end of 2014 your wife and the two children came to live in Australia with you.  At the end of 2017, the company wound up its business and you lost your job. You have not been able to find work in that field again and had to drive taxis on an intermittent basis.  Also in 2017, your application for permanent residence was rejected and this, with the loss of your job, caused you to become depressed.  You increased your use of alcohol significantly and began using ice, or methylamphetamine.  This gradually increased and by 2020 you were becoming intoxicated with alcohol every day and using ice almost daily.  This led to strains on your marriage, and your relationship with your wife and children began to break down.  With no job and no entitlement to government support, your family had to move house three times in two years because of unpaid rent.

19You have no prior convictions and your only further offending was to send the birthday card and letter to you family from prison when there was an Interim Intervention Order in place prohibiting your contact with them.  That is Summary Charge 32.  There has been no further breach of that order since then. 

20Your plea of guilty was not an early one, but the point of the contested committal in October 2020 appears to have been to test the evidence in view of the large number of initial charges, including intentionally causing serious injury, given that you had little or no memory of events.  Mr Brown indicated that there was always going to be a guilty plea in some form and the case was resolved in July this year. 

21You have remained in custody and you have no recollection of the two episodes because you were heavily affected by both drugs and alcohol at the time.  You have struggled to come to terms with what you did and you are genuinely sorry for the trauma you caused.  In the circumstances, I do accept that the plea is an indication of your remorse and that you accept responsibility for your offending.  The utilitarian value of the plea has increased by having been made during the COVID crisis, as it avoids the case being added to the very serious backlog of trials that the court faces. Your entitlement to a discount will be taken into account in determining your sentence.

22Your letter of apology offers further evidence of your remorse and indicates your insight  as a person who was once a contributing member of society and hopefully will be again.  I am told you have been a model prisoner and have worked as a cleaning billet at Ravenhall Prison since June last year.  You have completed some courses and taken up further English classes to improve your already fluent English.  I understand that drug screens have been negative.  Your time in custody, from early in the COVID pandemic until now, has been subject to the restrictions existing during that time, and with no family in Australia, you have had no visits at such times as they have been possible.  Your only contact with the outside world has been weekly phone contact with your parents in India. 

23You were assessed by the psychologist Dr Aaron Cunningham very recently who found you to be at low risk of reoffending and that your prospects of rehabilitation are dependent upon your abstinence from alcohol and drugs.  When this is considered in combination with your previous good character, your qualifications for skilled work and the fact that you come from a stable family of origin means that those prospects would appear to be good. 

24I have read the reference from your friend who knew you well some years ago.  He stated that he lost contact with you after 2017 and only found out you were in prison at the end of last year.  He was shocked to hear what happened and could not believe it, as it did not sound like the man he had known. 

25A further factor to be considered is the likelihood of you being deported on the basis that you may very well fail the character test for permanent residence, being sentenced to 12 months imprisonment or more.  I am able to take into account the anguish that this will have already caused you in contemplation of being deported to India and being unable to see your wife and children  again, should they remain in Australia. 

26I was referred to the sentence in Saxon v R[2] with the proviso that truly comparative cases are rare, and having read that case, I agree with counsel's qualification.  There are considerable dissimilarities between that case and this and I find it of little, if any, assistance.  The submission made on your behalf as to sentence was for a combined term of imprisonment with a Community Correction Order requiring that the term of imprisonment be not greater than 12 months.  The prosecution submission on the other hand was that only a head sentence with a non-parole period is appropriate. 

[2] [2017] VSCA 357

27I have concluded that the charges of recklessly causing injury are too serious to warrant the more lenient approach, taking particular account of the extensive injuries, the aggravating factors and the significance of general deterrence in such a case. 

Sentence

28Mr Kaur, I sentence you to the following terms of imprisonment:

·     For Charge 1, 18 months.

·     For each of Charges 2 and 3, six months.

·     For Charge 4, two years.

·     For Charge 5, six months.

·     For Summary Charge 32, three months. 

The sentence for Charge 4 will be the base sentence for the purposes of cumulation. 

I order that six months of the sentence for Charge 1, two months of each of the sentences for Charges 2 and 3 and one month for each of the sentences for Charges 5 and 32 be served in cumulation upon the base sentence. 

This results in a total of affective sentence of three years.  I direct that you serve a minimum period of two years before being eligible for parole. 

29If you have pleaded not guilty, I would have sentenced you to four years imprisonment with a non-parole period of three years.

30You have been in pre-sentence detention for 524 days which I declare is to be reckoned as already served and I shall note that on the court record. 

31The prosecution seeks an order for the disposal of two items.  That is not opposed by you through your counsel and I make that order.  Are there any other matters?  First of all, Mr Cameron, anything I've neglected or omitted? 

32MR CAMERON:  Not at all, Your Honour.  Thank you very much.

33HER HONOUR:  Thank you.  Mr Brown?

34MR BROWN:  No, thank you, Your Honour.

35HER HONOUR:  I'll leave the Bench now.  I'll just leave the link open if there's any need for any discussion. 

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