Director of Public Prosecutions v Kulasinghe (a pseudonym)

[2018] VCC 1460

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUKMAN KULASINGHE (a pseudonym)[1]

[1] Matter anonymised to protect the identity of the Victims

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Kulasinghe (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1460

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant
For the Accused	Mr S. Moglia

HER HONOUR: 

1Rukman Kulasinghe,[2] on 27 March 2017 you entered a beauty salon where your wife was working.  You and she had been separated for 18 months.  You were carrying an axe.  You proceeded to carry out a vicious attack on her, striking her to the head and body over 20 times. 

[2] Pseudonym used

2Your actions were motivated by your jealously and inability to accept that she had entered into a new relationship.  Your attack was committed in full view of the public. It left your victim with life threatening injuries.

3You have pleaded guilty in relation to that attack to one charge of causing injury intentionally in circumstances of gross violence; those circumstances are that once debilitated, you continued your attack on her.

4Your history and the lead up to those events is as follows:

5You were born on 25 September 1971 in Sri Lanka and are a Sri Lankan citizen but permanent resident in Australia.  You are an accountant.  You and the victim, 39 year old Chandrika, known as Chandi, Fernando[3] met in Sri Lanka in 1998.  She too is Sri Lankan born but now a permanent resident in Australia.

[3] Pseudonym used

6You married in 2000 and had two children; your son, Sachindra[4] born in 2001 and your daughter, Nayana,[5] born in 2006.  In 2011, you moved to Australia. 

[4] Pseudonym used

[5] Pseudonym used

7Ms Fernando describes you throughout the course of your relationship, as controlling, jealous and verbally and physically abusive.  She says your behaviour became worse when you moved to Australia. You became a heavy drinker, you became increasingly paranoid as to whether she was engaged in extra martial affairs.  She describes you making tenuous connections upon which to base your allegations, despite what she says is her fidelity within the marriage.

8Once in Australia, you worked at times in finance but since 2015 as a factory manager.  Your wife worked in various retail roles and finally as a beauty therapist.  In the year 2014, you and she started a beauty kiosk business at Fountain Gate Shopping Centre. 

9You would watch the shop from a distance and accused her of leaving the shop and not working, or pursuing affairs.  On one occasion, you sent her a stream of text messages saying that you were going to kill her.  An intervention order was put in place in 2014 but your wife eventually had it varied in the belief that she could ‘fix’ the relationship.

10By 2015, you were living separately under the one roof.  You later moved to separate houses.  Once living separately, you constantly sent messages to her using the Viber phone application.  In December 2016, she blocked your calls.

11The Viber messages were mostly in relation to financial matters but on numerous occasions you became aggressive, abusive and threatening. 

12In early 2017, the victim began a relationship with Nilushan Senarath.[6]  Approximately one month prior to the attack, you contacted him.  You were angry and made demeaning comments about your wife. 

[6] Pseudonym used

13In the two weeks prior to the attack, you attended your wife's workplace asking for details of her work hours.  During this period, you were also seen by your wife and children driving past their house and sitting in your vehicle watching them from a distance. 

14On Sunday 26 March 2017, your wife was with her new partner at Fountain Gate Shopping Centre.  You bumped into them. You approached and were introduced.  You repeatedly asked Ms Fernando "Are you happy?" in an aggressive manner.  You finished by saying "I'll come and see you tomorrow. 
I need you to sign something".  After the victim arrived home, she received negative text messages from you. 

15That night at approximately 9 pm, you wrote a letter on your computer. 
It was addressed to the High Court, Australian Police Force and Australian Government.  In summary you stated you had suffered depression in Australia, ‘where men have no power at all and where intervention orders are the driving force for ladies who always win and can do anything to disgrace their partners’.  You said you ‘did not expect to harm your wife’ but ‘she had affairs’ and this had led to a situation that you cannot bear any more.  You signed off the letter with your name and a title of "Desperate man".

16At approximately 9.30am the following morning, Monday 27 March 2017, you attended at Fountain Gate Shopping Centre.  You walked through the shopping centre to the beauty shop where you observed your wife standing behind the counter. 

17You returned to your vehicle and drove from the car park before shortly returning and parking near the main entrance.  You retrieved a 48 cm long axe from the rear of your car.  You placed the axe in a shopping bag along with documentation regarding a house mortgage agreement.  You then walked through the centre, returning to the beauty salon.

18The victim was behind the counter.  Another employee, Aishwarya Mayadev[7] was in a rear room.  You handed the victim a document from your bag and asked her to sign it.  It was already signed.  You waited for her to look down before retrieving the axe from your bag and striking her to the left side of the jaw.

[7] Pseudonym used

19CCTV footage taken within the store then shows you pursuing your victim throughout the store and your repeated strikes on her.  You moved around the counter, holding the axe above your head to where she was cowering against the wall.  You repeatedly struck her, attempting to strike her face.  At times, she covered her face with her arms and was struck on the forearms.  At one stage, you lost grip of the axe.

20Ms Mayadev attempted to grab the axe but you wrestled it from her.  She ran to call emergency services.  You then continued to strike your victim with the axe to the top of the head and the back of the head whilst holding her arms so she could not escape.  She grabbed hold of the axe handle with both hands and you struggled over the axe, both falling against a wall and couch within the shop.

21You punched your victim to the face during the struggle.  Ms Fernando was half sitting up with her back to you, covering her face while you lifted the axe above your head and struck her to the right arm, face and right shoulder. 
She fell to the floor again, trying to cover her face.  You stood above her and stuck her to the arm, face shoulder. 

22At one point you spread her arms, attempting to get to her face, striking her three more times to the head.  She rolled to her side, facing away from you whilst you struck her to the left shoulder blade and three more times to the head.  You continued to strike her to the right and left lower leg before losing grip of the axe.  She then lay motionless as you moved around her to pick up the axe again and strike her seven more times to the same area of the right lower leg. 

23The force of those strikes caused a small fragment of the axe blade to break off and become embedded in her leg.  Many of the blows involved you first raising the axe above your head and using significant force.

24After the last strike, you let go of the axe and calmly walked to the counter to retrieve the documents and shopping bag.  You rendered no assistance to the victim as she rolled back and forth in pools of blood on the floor, pleading for help. 

25Numerous members of the public watched in shock and horror as your attack unfolded.  They describe hearing screaming, observing full blooded or full forced blows.  One describes seeing the axe embed in the victim's head, another said she screamed at you to stop, that you looked at her but then continued, that you seemed desperate to attack your victim's face, that you punched the victim to the head, that you struck her whilst she was slumped on the ground.  Another believed at the time she had just observed a murder. 
They all described the large pool of blood surrounding the victim and your casual demeanour as you stood back while others helped.

26Alan Rehaut, a cleaner who witnessed the incident approached you.  He asked "What are you doing?", to which you replied "She is my wife and she is sleeping with other men".  Mr Rehaut confronted you and said "You're not going anywhere" to which you replied "I know.  I'm going to gaol". 

27Thankfully, the world is full of off-duty nurses.  Nurses Natalie Montalvan and
Rachael McKenna both assisted and comforted the victim until police and ambulance arrived.  Your victim spoke of her children and her fear of dying.  Senior Constable Steven Pope attempted to hold closed the victim's forehead which was open to the skull.  He could observe multiple injuries, including exposed nasal bone and brain tissue.  He noticed the metal fragment from the axe lodged in the leg of the victim. Constable Miranda Lord also assisted in administering first aid.  She described the scene as horrific.  Senior Constable Ebony Agtoft also assisted as a first responder.  But for the actions of these individuals, Ms Fernando may not have survived.

28Paramedics administered emergency treatment at the scene before conveying the victim to the Alfred Hospital.  During transportation, she was bleeding severely from her face, head, chest, arms and legs.  She was administered sedating drugs intravenously.  X-rays conducted immediately upon arrival revealed a tibia fracture to her left arm, elbow fractures and an open fracture to the skull.  She had an active arterial bleed in her brain and was admitted for emergency surgery.

29Medical documents describe the injuries suffered by the victim as follows: 
a large vertical incisional wound extending from above her hairline down to the nasal bridge and right nostril measuring 12 cm and of depth to the bone.  Open skull fracture and nasal fractures, incised wounds to the left base of her neck, lacerations to the inner and outer aspects of the inner of her right upper arm of approximately 4 cm with subcutaneous tissue on view, right elbow lateral dorsal aspect, approximately 3 cm with adipose tissue on view.  Deformed left elbow, proximal left forearm with the incised wound approximately 5 cm and an open fracture.  Left arm fractures near the elbow at the top of the radius and ulnar, with bones dislocated.  Four centimetre lacerations on the upper most aspects of her right and left legs with subcutaneous fat exposed. A proximal tibial fracture.  Multiple episodes of likely seizure activity, unresponsiveness, fluttering of eye lids, stereotyped movements of her right hand, all indicative of brain injury. 

30She required numerous surgeries as follows:  bi-coronal craniotomy, and elevation of the depressed frontal bone fracture and evacuation of an extra-dural haemorrhage; open reduction and internal fixation of the frontal bone of her forehead; open reduction and internal fixation of her nasal bone; insertion of left tibial buttress plate; left elbow ulnar nerve repair with the radial head excised and ulnar plated; right proximal fibula interosseous sutures and primary closure of skin lacerations.

31Dr Maaike Moller from the Victorian Institute of Forensic Medicine has provided an expert opinion in relation to the injuries.  She opined that significant force was required to inflict them.  She states that the injuries to the victim's face and head were life-threatening.  The force penetrated skin, bone and the tissue of the brain.  It caused bleeding and bruising to the brain.  Without immediate medical intervention, she states the victim would probably have died from the head injury alone. In addition, she says the injuries to the remainder of the victim's body were also potentially life threatening. 

32As to the victim's long term prognosis, Dr Moller states "She may suffer pain and dysfunction in the use of her limbs, she may suffer cognitive deficits and is vulnerable to ongoing seizures.  She will have permanent scarring across all wounds sites including her face.  She may suffer symptoms of post-traumatic stress disorder".

33At the time of making her statement on 28 April 2017, Ms Fernando had been in hospital for a month.  She was then to be transferred to Caulfield Rehabilitation Hospital.  She was bedridden, with rods and a brace attached to her right leg and plates and pins inserted in her left arm and left leg.  She had no feeling in her hands and could not sign the statement.

34In her victim impact statement written in December 2017, Ms Fernando describes having a reaction to one of the antibiotics in hospital and having an infection.  As at December 2017, she was continuing with physiotherapy, she described weakness in her left leg and walking with a limp.  She has ongoing pains in her elbows and arms.  Her fine motor skills have been impacted and her hands shake to the point that she is unable to carry out beauty work.

35Her head still hurts and there is numbness as well as shooting pains.  She has headaches, nausea and vertigo.  Her eyesight in her left eye is impaired. 
She has trouble thinking of words and remaining focused on tasks.  The scar on her left breast gets sore and becomes red.

36An updated medical report dated 21 December 2017 was prepared by
Dr Lorinda De Leon.  Dr De Leon states:

"The victim is still in pain, experiencing anxiety, flashbacks and depression.  The victim continues with physiotherapy, rehabilitation, counselling with a psychologist and pain relief medication.  The victim's prognosis is difficult to predict but she will require continued medical care and rehabilitation to assist recovery.  She is likely to suffer depression, continuous pain and mobility issues with her limbs into the future." 

37In short, as a result of the injuries you inflicted, your wife's life has changed irretrievably. 

38You were arrested at the scene.  You told police "I am an accountant in Sri Lanka.  You know, she has been cheating and everything so I hit her.  Yes, I hit her."  You appeared extremely calm.

39You underwent a record of interview during which you describe your relationship and separation.  You described your feelings of depression and said seeing your wife with another man made you ‘crazy’.  You stated that your wife had been unfaithful during your marriage.  You said you have access to her phone bills and you check them and her calls to other men. 

40You described meeting Ms Fernando and her new partner at the shopping centre and being shocked.  You admitted calling him and pretending to be her cousin.  You admitted sending your wife a message that night but that she blocked your number.

41You stated "I didn't want to kill my wife but wanted to injure her because she wanted to learn a lesson from me and I think she wasn't learning anything". 
You said you felt guilty and scared before walking back into the centre but you ‘did not want to suffer any more’.  You were thinking that you had no control of your life and she was enjoying herself.

42You did not think it was fair what you did, but it was not fair what she was doing to you; she deserved what you did but not to die.  You said you stopped hitting her because you thought "That's enough".  You stated that you planned to injure the victim’s face because you were aware that your wife was concerned with her looks.  You said "She will be sad now with those injuries".

43You said you were not concerned that she might die after the attack.  You stated that she should go to hospital and then come back to look after the children.  When informed of the injuries the victim suffered, you agreed that it was very serious.  You stated you felt bad for the people who witnessed the attack. 

44Police examined your vehicle, locating plastic packaging for the axe and a half consumed 150 ml bottle of brandy. 

45When your son Sachindra was approached by police on the day of the attack, he immediately inquired of them whether you had killed his mother.  He later made a VARE wherein he described your physical abuse of his mother, your threats to assault her and numerous examples of stalking. 

46This is an extremely serious example of a serious offence.  The prosecution contend that I should treat it as near the top of the range of seriousness.  I will return to that submission. 

47The maximum penalty is 20 years' imprisonment.  This is a category 1 offence under the Sentencing Act 1991.  I am required to impose a custodial sentence and I must impose a non-parole period of more than four years unless special reasons exist.  No special reasons were advanced on your behalf.

48It is clear that general deterrence, denunciation and just punishment must loom large in the sentencing process.  In your case, specific deterrence also has a role to play.  Not only does the background and context of the offending include your previous abusive behaviour towards your wife but you have a prior court appearance relating to your treatment of her. 

49In March 2015, you pleaded guilty to two charges of threatening to kill her and three charges of using a carriage service to menace her.  You were sentenced without conviction to be released on a Community Correction Order for a period of 12 months with special conditions including performance of unpaid community work and undergoing mental health assessment and treatment.  In addition, you were fined an aggregate amount of $1000 dollars.

50An intervention order had already been granted in December 2014 in respect of those offences but that order lapsed after 12 months. 

51The past history of behaviour within the marriage and your past court appearance are not of themselves aggravating features of the instant offence but they place that behaviour in its true context and they are relevant to considerations of specific deterrence and your prospects of rehabilitation and to the assessment of the risk you pose. 

52Your moral culpability is increased by the setting of family violence.  She was your wife and the mother of your children.  Ms Fernando was entitled to love, respect and kindness from you. 

53Your moral culpability is also increased by the fact that you had been previously dealt with as I have outlined and apparently paid a significant fine and completed a Community Correction Order designed to act as punishment and deterrent for any future behaviour.

54It is increased by the warning which the intervention order was intended to provide, that you should desist from such behaviour.  You ignored suggestions that you get help for your depression despite your apparent intelligence.[8] 

[8] Exhibit 4

55The breakdown of your marriage was caused at least in part, if not in large part by your manipulation and abuse of your wife and by your growing obsession with the belief she was having affairs.  You remained irrational, paranoid and possessive of her despite your separation.

56I accept the submissions that were made that there is a cultural pressure to maintain a family unit and cultural pressure to keep your family together. 
This is apparent from the testimonials written by your family.  It is also clear that your family have had a lot of pride in you.  You were considered the quiet, studious one, the first in your family to achieve a university qualification.  You had a good history of employment in Sri Lanka and Mauritius.  You had a long held dream of coming to Australia to make a life here.

57I accept that in the face of your relationship ending, you could not tolerate your apparent failure to achieve such goals.  As your ideal life here slipped away, you sank into a depression which was untreated except by your increased intake of alcohol.

58In those circumstances, I accept that while you were not in any way mentally impaired, your capacity to exercise proper judgment and to accept your own failings left you, in your words, ‘crazy with frustration’ and focused your anger squarely on your wife. 

59This may provide an explanation for your descent but of course it provides no excuse for your abhorrent behaviour towards her, nor for the impact on your children who are the other major victims of this offence. 
You are apparently an intelligent man who had been living in Australia for six years and who understood the law and expectations in this country. 

60I accept and apply the principles enunciated in the matter of Pasinis v R[9], namely as follows:

"Historically perpetrators of family violence were rarely prosecuted.  Even when offenders were convicted of such offences, they often received lenient sentences.  Fortunately the criminal law now gives greater recognition to the devastating effects of family violence.  It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously.  This makes both specific and general deterrence very important factors in sentencing men who assault their partner."

[9] Pasinis v R  [2014] VSCA 97

61You carried out your violence on this occasion in a public place, your wife's workplace, taking the shame of family violence into the view of her work mates, others who knew her from working nearby and other passers-by. The impact on those people has been significant and I accept that this is an aggravating feature of your offending. 

62Those witnesses described their horror of what unfolded; they also describe the resulting effect upon them of your behaviour in their victim impact statements. They variously talk of their lack of trust in people and resulting hypervigilance, of intrusive flashbacks and memories of the event including being woken with images in the middle of the night, of being on a rollercoaster of emotion where they feel angry, frustrated, anxious and scared.  Some who worked nearby had to leave their workplace because they could not face the idea of walking past the salon. A number have required psychological counselling.  Without exception, they all talk of their loss of faith in humankind.  Their lives too have been irrevocably changed. 

63I have also read victim impact statements from your former wife and your two children, written in December 2017.  Your wife says when she saw the axe, she thought "'This is it, this is the end of my life', I thought of my kids, my mum, my partner.  These are the people I love and I remember apologising to them in my head that I couldn't save myself".

64She says "I remember thinking that 15 years of torture and abuse had come to this and this is my last few minutes".  After waking up days later in hospital, she says "There are no words to describe how I felt at that time.  I wanted to die."

65She suffered terrifying flashbacks, "I felt so overwhelming sad and lonely".
She could not use her body and describes feeling helpless, hopeless and useless.  When she sees herself in a mirror, the scars are a constant reminder of that day.  She says "I worry about the damage that has been done and it makes me unsure how long I am going to live for so I have no hope for the future".  She tried going back to work but due to the impact on her fine motor skills, she was unable to do so.  Financially, this has left an impact and she worries about providing for her family.

66She says she cannot go out, she has trust issues and is ‘really scared’.  She sleeps poorly and reacts to every noise.  She says "It saddens me that my children have been exposed to this type of marriage".

67Your 11 year old daughter said when she saw her mother in hospital for the first time "My mind was blank.  I can’t describe how I felt,  it was immense".  She was worried her mother would die, she says it was hard to see her mother because looking at her scars made her upset.

68She has been worried about the future.  She wakes on occasions fearing you have broken out of prison and would come for her and her brother.  She has deleted all photos of you.

69Both children had to live with a carer for a period of time while their mother was in hospital.  Your 16 year old son writes of his anger towards you, of crying himself to sleep, of his inability to concentrate at school and his concern about his dropping grades.  He says "I'm still very angry at dad.  I might forgive him one day but not yet.  Maybe I will if he realises he made a mistake and messed up.  He's unpredictable".

70You are entitled to the benefit of your cooperation with police and of your plea of guilty, even though the prosecution case was overwhelming.  You allowed access to your home and computer and provided passwords.  You answered all questions in a lengthy record of interview and consented to all forensic procedures. 

71I accept that in circumstances of violence, giving evidence at committal and/or at a trial can exacerbate the trauma for a victim.  In circumstances of family violence, proceedings may be used to further torment a victim.  Your wife and children, her colleagues and the many passers-by have been spared that additional stress.  To this end, there is certainly benefit as well as the general utilitarian benefit in your early plea. 

72It is difficult to determine whether your plea is a sign of real remorse.  To that end, and in considering the related concepts of specific deterrence and your prospects of rehabilitation, I have had the benefit of two psychiatric reports from Consultant Psychiatrist Dr Pandurangi who assessed you in September 2017 and June 2018.

73In September 2017, you told Dr Pandurangi that you felt guilty about the incident however you reiterated "She has done the wrong thing".  You repeated allegations of infidelity.  You confirmed your behaviour of checking up on her through phone records and sale receipts as well as ringing her work place including after you were separated.

74You admitted threatening to kill her and claimed this would be a socially acceptable way of expressing anger.  You repeated comments consistent with your letter written on 26 March and consistent with your record of interview, including that the legal system in this country means ‘she thinks she can do anything’ and that your wife ‘thinks beauty is everything’, so you repeated again "I thought of making an injury to her beauty".

75According to Dr Pandurangi, you were morbidly preoccupied with your wife's fidelity.  You suffered depressive symptoms for at least two years. 
This was confirmed by your sister who visited you in August 2016 and described you as lonely and isolated.  Your alcohol intake increased and Dr Pandurangi concludes that your drinking was “to alleviate his underlying mood symptoms and assist with sleep disturbances. The chronic, heavy alcohol consumption would have set up a perpetuating cycle of depression and an increasing jealousy.”  With imprisonment and sobriety, the intensity of those symptoms lessened and your mood and daily activities were not affected. 

76Dr Pandurangi states "His presentation does not neatly fit into diagnostic categories as set out in psychiatric diagnostic manuals" and, further, that
"The incident … directly emanates from the pathological jealousy, the underlying depressive disorder and alcohol misuse which were probably the consequence of the jealousy contributed to the lack of consequential thinking.  However, there is no evidence to suggest that he was not aware of the wrongfulness of his actions.”

77In his second report, Dr Pangurangi stated that you spontaneously indicated repentance over the incident and that you are ashamed of your actions.  “He is concerned about the well-being of his wife and children and is happy that they are now living in their family home.”  This is a sign of some remorse. 

78I take that into account, along with your instructions that counsel indicated at your plea, namely your acknowledgement that what you did what was wrong and shameful, that none of this was Ms Fernando's responsibility and further that she should not have to suffer the physical or emotional trauma that you caused.  This was accompanied by an apology to her and to your children.

79Apologies such as those delivered at a plea are difficult to assess but I am prepared to accept that there is some growing acceptance by you of your wrong doing and some growing remorse.

80That acceptance is somewhat negatively impacted by what Dr Pandurangi described in his second report.  He said "Mr Kulasinghe continued to hold incorrigible beliefs about his wife's infidelity.  He expected her to re-establish their relationship as had happened in the past.  The sense of rejection and belief that a new relationship is somehow affecting the care of his children led to the alleged offending.  He now admits that his actions have led to disastrous consequences for him and his family and feels ashamed about it".

81Your moral culpability and the seriousness of the offence is increased by the use of the weapon.  Both are increased by the level of premeditation.  In relation to premeditation, I am satisfied that you formed an intention to harm your wife at around the time you wrote the letter on your computer on 26 March. 

82I accept that your intention to harm her using the axe was formed at around the time you returned to your car after surveilling the victim in her work place.  In other words, your attack on your wife was premeditated however the decision to use a weapon was only made in the time frame immediately preceding the offence.  I accept that it was an item already in your car for an unrelated purpose. 

83I accept the prosecution contention that the weapon used was a brutal one. 
It would have been obvious to you that using it would result in a serious injury to your wife; in particular, given your specific intention was to injure her face.

84I return to the Crown submission that this offence should be viewed as very close to the top of the range of seriousness for this offence and to the cases referred to me by both counsel. 

85In the case of Nash v R[10], His Honour P Maxwell identified a list of factors that are routinely taken into account in assessing the gravity of particular instances of offences of intentionally causing serious injury.  They are:

·The proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;

·the seriousness of the injury, both immediate and long-term;

·the vulnerability of the victim;

·whether a weapon was used; how long the attack lasted;

·whether it  was committed alone or in company.

[10] Nash v R [2013] VSCA 172

86That list is said to be descriptive rather than prescriptive but it is said to provide a useful framework for a sentencing judge.  Such a list should be conducive to consistency in sentencing and give public confidence in the criminal justice system. 

87The Court of Appeal in the decision of Chol v R[11] referred to that list and said the first two factors would ordinarily be key indicators of seriousness whereas the presence of one or more of the other factors would likely aggravate the seriousness. 

[11] Chol v R [2016] VSCA 252

88The Court in Chol looked at sentences for other cases involving the causing of serious injury intentionally and stated that Nash and the case of Cedic v R[12] should be seen as yard sticks against which to examine a proposed sentence for an offence of intentionally cause injury in that category of seriousness.

[12] Cedic v R [2011] VSCA 258

89What the discussion in Chol shows again though is that although comparison with other cases assists in determining current sentencing practices, invariably there are examples of less and more serious instant offences and that those factors, coupled with the particular mitigating or aggravating personal circumstances of the offender will necessarily result in sentences of varying lengths.

90Similarly in Nash, His Honour JA Priest stated that experience shows the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable and thus the sentences commonly imposed widely vary. 

91None of the cases referred to in Chol dealt with the additional layer of circumstances of gross violence. 

92I was referred to the 2004 case of DPP v Zullo[13] wherein His Honour JA Nettle discussed the increase in maximum penalty for intentionally causing serious injury and that therefore sentences which had previously had been considered at the very top of the range should no longer reflect appropriate sentences for such offending.  His Honour stated that now that the now maximum penalty had been almost doubled, top of the range would be upwards of 15 years.  He also said that in a particular case of causing serious injury intentionally, it may be so grave as to produce consequences so serious as to warrant a penalty similar to the penalty for manslaughter.

[13] DPP v Zullo [2004] VSCA 153

93We now have the added layer of circumstances of gross violence introduced in 2013.  The first occasion that that offence was considered by the Court of Appeal was in the matter of DPP v Hudgson[14].  The court again referred to Nash and Cedic, and then stated “if anything s.15A with its additional element of gross violence makes it clear that the offence of intentionally causing serious injury in circumstances of gross violence must be viewed by the courts as being extraordinarily serious.”[15] 

[14] DPP v Hudgson [2016] VSCA 254

[15] ibid at [85]

94The court noted that there is yet no established sentencing practice through appellate judgments for the aggravated form of intentionally causing serious injury.

95I have considered the case of DPP v Arias-Jones[16], which is a decision in this court concerning a sentence of seven years and six months for intentionally causing serious injury and gross violence in company with sentences for robbery and false imprisonment which produced a total effective sentence of eight years and nine months, with a non-parole period of six years and six months.  The circumstances are very different to this case. 

[16] DPP v Arias-Jones [2017] VCC 987

96Having considered those cases, including the table attached to the decision of Nash, along with others referred to therein and other cases provided on the plea, in my view the most appropriate comparison despite the lack of circumstances of gross violence is the case of Kilic v R[17].

[17] Kilic v R [2015] VSCA 331

97The circumstances of that case are well known and involve one charge of intentionally causing serious injury committed in a setting of an intimate relationship.  The victim was a 23 year old who was pregnant with the offender's child.  The offender's behaviour toward her was controlling and included paranoia as to whether she was engaged in other relationships.  The offender and victim were ice users.

98On an occasion when the victim returned home in a car with two male friends of the offender, the offender first brandished a sword at one of the males before verbally abusing the victim, dowsing her with petrol and setting her alight. 

99She was engulfed in flames and left in a critical condition.  Injuries were said to be life threatening.  She required multiple surgeries, rehabilitation and physiotherapy.  Her injuries were said to be life-long, both in terms of physical and psychological consequences.  Mr Kilic received a sentence in this court of 14 years' imprisonment with a non-parole period of 11 years.  That sentence was approved by the High Court in December 2016.

100The offender in that matter was a 22 year old.  The offending was spontaneous, opportunistic and not planned.  The offender was remorseful.  He had prior convictions for minor offences not including violence.  The offence was committed whilst on bail and serving a community correction order. 
The sentencing judge found it was difficult to assess his prospect of rehabilitation.

101The High Court too considered comparable cases.  The High Court eschewed an approach which involves a sentencing judge attempting to draw subtle distinctions between the seriousness of injuries which in each case place the offences at the upper end of the range of seriousness.

102I note that in Kilic, the High Court referred to the case of DPP v Terrick and Others[18], saying it involved some of the most catastrophic injuries but noted it was not a case of domestic violence perpetrated against a woman in abuse of a relationship of trust.

[18] DPP v Terrick & Ors [2009] VSCA 220

103In the case of Robbins v R[19], such a relationship existed.  The offender attacked his wife with a claw hammer, striking her three times to the back of her head with enormous force.  The victim suffered devastating life-threatening injuries resulting in life-long disabilities.  The offender had no prior convictions and expressed what was said to be profound remorse.  He was sentenced to

[19] Robbins v R [2012] VSCA 34

11 years' imprisonment.

104In this court, in the case of DPP v Lindsay[20] for a charge of intentionally causing serious injury - again, without gross violence but in a setting of family violence, a sentence of eight years' imprisonment was imposed as part of a total effective sentence of nine and a half years' imprisonment. 

[20] DPP v Lindsay [2017] VCC 516

105I return to the case of Pasinis which also involved two charges of intentionally causing serious injury committed in the context of an abusive relationship. 
The Court said:

"General deterrence is of fundamental importance in cases of domestic violence.  The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities.  The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm."

106And so I come back to the list of factors outline in Nash.  I am satisfied in this case that it was your intention to cause really serious injury.  I am satisfied that the injury you did cause was life threatening, both the head injury and the injuries to the rest of the body.  The immediate effect required multiple lifesaving complex surgeries and treatment.  The long term ramifications are lifelong.  They involve some cognitive impairment, vision disturbance, loss of limb function including loss of fine motor skills which impacts the victim’s capacity for employment.  They involve psychological injury.  Those matters, in my view, do place this case near the top of the range of seriousness for the instant offence. 

107There is a long list of aggravating factors presented as follows: There is a level of premeditation; the use of the weapon; the attack lasted approximately a minute and involved your pursuit of your victim around the shop; you did not desist, despite your struggle over the axe with her co-worker and with the victim herself; the force used was significant; the number of blows is significant and inflicted within that time frame - that demonstrates itself, the frenzied nature of the attack; you made a deliberate decision to target her face; you had a purpose and you set about achieving that purpose; you offered no assistance when your wife lay injured in pools of blood on the floor - even the sight of her at that moment did not break your resolve.

108Your immediate and ongoing justification that she was somehow deserving of such violent treatment and that you had a right to inflict serious injury upon her; the brutality of the weapon, the public setting, the relevance of the setting of family violence and the breach of a trust relationship; your relevant prior court appearance, the existence previously of an intervention order and the fact you were not deterred by either of those matters; You were also not deterred by the likely impact on your two young children. 

109Despite your positive work history and your efforts to complete courses in custody, your prospects of rehabilitation are guarded.  

110For completeness, I note your status as a permanent resident in Australia however given the sentence I must impose, your visa must almost certainly be cancelled.  Although I accept as a general proposition loss of opportunity to permanently settle in Australia and likely stress flowing from such expectation may make time in custody more onerous, I do not see that as a particularly significant matter here.

111In all of those circumstances, and taking into account the need to denounce such treatment of a woman by her former husband, the need to deter others from self-justified violence, and the need to punish, I propose to impose the following sentence.

112If you could stand please, Mr Kulasinghe?

113In relation to the one charge of intentionally causing serious injury in circumstances of gross violence, I convict you and impose a sentence of
14 years' imprisonment with a non-parole period of ten years and ten months imprisonment.

114But for your plea of guilty, the sentence I would have imposed would have been 16 years' imprisonment with a minimum term of 12 and a half years imprisonment. 

115I declare 528 days pre-sentence detention as having already been served.

116I propose to the make the disposal order in the terms sought and as I indicated at the outset, I propose to make the suppression order in relation to the names of Mr Kulasinghe, his victim and their children and I propose to make that order continue to completion of the time period of the head sentence.

117Thank you.

118COUNSEL:  As Your Honour pleases.

119HER HONOUR:  Any matters, counsel?

120MR GRANT:  No, nothing, Your Honour.

121MR MOGLIA:  No.

122HER HONOUR:  Thank you, you can remove Mr Kulasinghe.  Thank you.  I will leave the Bench, thank you. 

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