Director of Public Prosecutions v Nan (a pseudonym)

[2019] VCC 1035

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

URVASHI NAN (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF TRIAL	19 – 23 November 2019
DATE OF PLEA:	25 June 2019
DATE OF SENTENCE:	8 July 2019
CASE MAY BE CITED AS:	DPP v Nan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1035

REASONS FOR SENTENCE
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Subject:  SENTENCING

Catchwords:  Jury verdict; aggravated burglary and intentionally causing injury; victim estranged wife; no acknowledgment of wrongdoing; no prior convictions; possibility of losing permanent residency; separation from young children

Legislation Cited:  Sentencing Act 1991; Migration Act 1958 (Cth) s200 and s201

Cases Cited:R v Verdins [2007] VSCA 102; Guden v R [2010] VSCA 196; Filiz v R [2014] VSCA 212; Kalala v R [2017] VSCA 223; Allouch v R [2018] VSCA 244; Loftus v R [2019] VSCA 24

Sentence:  TES 4 ½ years’ imprisonment; Non-parole period 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Kara Thomson, Solicitor for the Director of Public Prosecutions
For the Accused	Mr  M. Perry with Mr V. Nath (on trial) Mr V. Nath (on plea)	Vincent Ryan

HER HONOUR:

1Urvashi Nan[1], you were found guilty by a jury on a charge of aggravated burglary, and on a charge of intentionally causing injury. 

[1] This is a pseudonym name.

2The maximum penalty for aggravated burglary is 25 years' imprisonment, and for intentionally causing injury, it is 10 years' imprisonment.  You will not be receiving anywhere near the maximum penalty on either charge, but I have taken each maximum into account as reflecting the objective seriousness with which Parliament, on behalf of the community, regards offences of this nature.

3The events giving rise to these charges were explored during the trial last November, and I shall only summarise sufficient to describe relevant aspects.

4These offences were committed against your estranged wife, Ms Saryu Singh[2]. 

[2] This is a pseudonym name.

5You and she had come to Australia in 2009 from India, had both studied and qualified as personal care assistants, and worked in that field. Your first child was born in Melbourne, then the family moved to Canberra, and then to Perth.  In about 2013, you moved together to Albany, and while there your second child was born.  You, however, ceased employment a few months after moving to Albany and the relationship with your wife became more strained.

6In late 2016, you told her that you were leaving and moving to Perth.  In January 2017, she moved with the two children back to Melbourne, where her sister and brother-in-law lived, having effectively been abandoned by you in Albany.

7As at April 2017, she and the children were living in the second bedroom of a unit, which was the home of her sister and brother-in-law, in a Melbourne suburb.  She was working night shift as a care worker for BlueCross to support herself and your children.  You had not been employed for at least many months.  You had returned from Perth to Melbourne in February or March 2017, and wanted to reconcile and live again with your wife and children.  She had made clear that although she was willing to try that, she required you to take responsibility for your family, by first finding a job and accommodation.  At the time, you did not have your own accommodation and were staying with someone you had met at your Temple. 

8Ms Singh had not wanted you to know where she and the children were living, although she had notified you when she was returning to Melbourne with them.  You did have her mobile phone number and had left messages for her.  At least by sometime in March 2017, however, you had found out her address, and had taken to coming there, the first time just standing outside. On other occasions you would come offering lollies for the children, who would let you in, and she did not want to prevent the children from seeing you.  You did not come on weekends, when your sister-in-law or her husband might be there. 

9I make no finding as to whether your wife had ever voluntarily let you into the unit, but I am satisfied beyond reasonable doubt, from her evidence in the trial, that she had made clear to you that you did not have her, or her sister's or brother-in-law's, permission, to enter that unit whenever you wanted.

10On 20 April 2017, a weekday, Ms Singh had returned to the unit about 7.30 am, after working night shift.  She attended to getting the children ready for school, and then walked them to their nearby school by 9 am.  She came back, intending to have breakfast and then to sleep.  You apparently entered the unit and confronted her in her bedroom, wanting again to talk about coming to live there with her and the children.  There was an argument between you, in which she again told you she would be willing to try with the marriage, if you first found accommodation for the family and a job.

11She said during the trial, and I accept, that you became aggressive and started saying abusive things – calling her names which she could not translate into English from Punjabi which you were both speaking, but mostly words like “bitch.”  She told you she needed some rest and told you to leave, and she walked you to the laundry door and closed it after you, so that it could not be opened from outside.  She also closed the kitchen window, which she noticed was opened.  She then went back to her bedroom and fell asleep, lying on her side with her back to the door.

12The next thing she knew was that she felt a hand over her mouth and a sharp pain in her back.  She called it a very sharp pain – it felt “like your nail of your thumb” – but she turned on the bed and saw and felt blood, and saw you standing at the side of the bed, holding a knife with blood on it.  In order to keep you calm and prevent you from hurting her again, she told you that it was all right, and that you should both just go to the hospital.

13Police later attended and found a sizeable blood stain on her bed, and a blood trail on the floor from her bedroom, and some blood in the bathroom, although in evidence she did not recall going there.  She did recall going out the laundry door and says you were following. 

14As she walked around to the front of the unit, she saw a neighbour's car in the drive, and realising that that neighbour was home, she ran away from you to that unit in the block, telling the man there that she urgently needed to go to hospital. She was scared to let you take her.  She told the neighbour that it was her husband who had hurt her.  You apparently did not follow her to the neighbour's unit. 

15Those neighbours drove her to hospital and, on the way, the police were called, and they attended at the hospital and took some details of what had occurred.  They then attended at the unit and conducted investigations.

16The basis of the charge of aggravated burglary was that you entered the unit on the second occasion that day, knowing that Ms Singh was likely to be present, and with the intention to assault her.  It is presumed that you did that by getting in through the kitchen window, which could not actually be locked.  It was not alleged that you entered with a knife, but that you took one from a knife block in the kitchen, which was later found to be missing a knife. A knife described as being used in this incident was never found, despite police searching for it. 

17Charge 2, of intentionally causing injury to Ms Singh, is based on you having used a knife to injure her in the back; in essence, that you stabbed her in the back while she lay asleep on the bed.

18Ms Singh suffered an incision injury, consistent with a sharp object, to her back to the left of the spinal cord.  It was a 1.5 centimetre wide stab wound which had penetrated the entire thickness of the skin and entered the muscle tissue, with some swelling caused by blood collecting, and little gas bubbles in the muscle area around it.  She was treated in the emergency department at Dandenong hospital under the general surgical unit.  The wound was washed out, two stitches inserted, pain medication administered, and X-rays taken.

19She wanted to go home for the children after school and was discharged home that day for follow-up by her local GP, who subsequently removed the stitches some two or three weeks later.  She took more than two months off work.

20In a Victim Impact Statement, which Ms Singh did not want to read out in court so I shall not repeat in any detail, she says that her physical injury has healed, and she is back to her normal work.  She is studying further, as well as concentrating on the children's needs.  The tone and content of her statement is consistent with my assessment of her when she gave evidence in the trial,  that is: that at the time of this incident, she was frightened and deeply affected by your actions and violence towards her, but that she is not exaggerating the current impact, and is doing all she can to build a secure future for herself and the children.

21I must assess the objective seriousness of this offending and your personal culpability for it.  To enter anyone's home to assault them is a very serious offence – an invasion of a place where that person ought to be able to feel safe – and the maximum penalty of 25 years' imprisonment for aggravated burglary reflects that.  Of course, to actually cause injury by pressing a sharp object into someone causing considerable bleeding, is self-evidentially a serious matter.  To commit these two offences against your wife, the mother of your young children, makes this a serious instance of these offences.

22As has been said in a number of other cases, including by the Court of Appeal, before and since your offending,[3] what is commonly called “domestic violence” will not be tolerated by the community, and general deterrence is an important sentencing factor.  Frustration or jealously arising when relationships have broken down cannot be tolerated as an acceptable motive for violence towards a former domestic partner. It has also been noted that domestic violence causes considerable burden on the community in general, in medical, and in consequential costs or losses. 

[3]Filiz v R [2014] VSCA 212; Kalala v R [2017] VSCA 223.

23In this case, I am satisfied that on the day when you entered the unit for a second time, you did so in defiance of your wife's clear indication that very day that she did not want you there, and did not want to talk to you further that morning. I am satisfied that you took a knife from the kitchen, entered her bedroom, and stabbed her in the back as she slept.  Your refusal to acknowledge that you did this, leaves no reasonably possible alternative explanation other than that you were frustrated or angry enough, due to her refusing to talk further about reconciliation, and that you wanted to deliberately hurt her.  I accept that the depth of the wound was not such that it was intended to cause what would amount to a serious injury.  You appear to have been so focussed on your own thoughts or wishes that you were prepared to totally disregard not only the wishes of Ms Singh, but also her safety

24I accept that when you first went there that day, you probably did not intend to physically hurt her, but just wanted to press your wishes on her again.  No previous arguments or incidents between you and your wife had ever been reported to police, and I do not infer that there had been previous violence.  I accept that you had not attempted to injure her before. 

25There was no existing court order, such as a Family Violence Intervention Order, nor an order under the Family Law Act, and you were not acting in contravention of any such order at the time. There are many cases that come before the courts where the offending conduct is in breach of such an order.  In those circumstances, that is an aggravating feature, and it is not present in this case. 

26However, as I have said, I regard the fact that you re-entered the unit in defiance of her locking you out, as a serious aspect of the circumstances, as was your picking up of a knife to use as a weapon, then on finding her in the particularly vulnerable position of being asleep on her bed, you proceeded to harm her in that position.

27The physical injury you caused healed within a relatively short time, and she was able to return to work after a couple of months.  That does not mean that there is not lasting emotional impact, but as I have said, Ms Singh has not sought to dwell on that aspect.  It is clear that what happened that day brought to an end the prospect of a reconciliation between the two of you, and that has meant that it is unlikely you will be able to live again with her and your young children as a family.

28The fact that you pleaded not guilty and stood trial on these charges does not mean that your sentence should be increased.  But you do not receive the benefit of a reduction, or reductions, that you would have received had you pleaded guilty and spared your wife having to give evidence and re-live those events.  A plea of guilty would also have indicated an acceptance of responsibility, and quite possibly remorse, on your part, and you do not get the benefit of any leniency for any of those features.

29Your counsel describes you as unable to explain what happened, and points to that as indicative of psychological illness.  It is clear that you have not at any stage explained what happened, but I am not able to decide whether that is due to some underlying psychological condition, or deliberate refusal by you to explain.  It may well be that you still do not acknowledge to yourself what you did, nor the reasons for it.  But I am not able to determine whether or not that is due to an underlying psychological condition or some other reason.

30By not acknowledging what you did, or that it was seriously wrong, it is clear that you have not acknowledged or taken responsibility for your actions that day, and that not only reflects absence of remorse, but also reflects lack of insight and leaves open the possible risk that you might act similarly in the future.  I do not expect that you would be a risk to the public generally, but the safety of Ms Singh and, indeed, any possible future partner of yours, cannot be totally overlooked as possibly at risk.

31Through your counsel, it is submitted that you deeply regret the end of your marriage and separation from your children.  I accept that that is so, but it does not really reflect insight into your own role at the time, nor the wrongfulness of your offending conduct.  For this reason, I regard specific deterrence as relevant to the sentence.  That means that a factor in the sentence is to deter you from similar offending in future, which as I have explained, I do not regard as likely against the community generally, but if you were in a similar situation in a domestic relationship.

32I regard general deterrence as the most important sentencing factor; that means the sentence must send a message that anyone acting in a similar manner can expect stern punishment.  Denunciation also has similar importance and there is a role for just punishment as well.

33I turn now to your personal circumstances.  You are now aged 35.  You were born in India, into a comfortably established family.  You studied and achieved university qualifications in commerce and business administration, and apparently worked as a marketing officer for a bank in Amriitsar.  Your parents and two siblings still live in India, your siblings both working in professional fields.

34I am told that your marriage to Ms Singh was arranged through family connections.  You are both of the Sikh faith, and both continue to actively practice that faith.  You and Ms Singh came to Australia in 2009, already married, and on student visas.  You both studied and completed diplomas of community welfare, and both started working in that field.  I am told that you also worked as a food delivery driver at times, and at times as an Uber driver, presumably to support your family.

35You also seem to have struggled personally, to cope with some of life's stressors, well before this incident.  It may be that you had not adjusted well to life in Australia, leaving behind your professional status, as well as known lifestyle in India, and the extra responsibilities of family life with young children.  I do not have enough evidence to make any findings about the cause or causes, but it seems that you had attempted self-harm many years before the incidents that bring you before this court, and had returned to India for treatment.  You left your wife here for some months. As Mr Singh explained, that was when you had both been in Canberra, and it was in that time that she moved to Perth, because her sister was living there.

36It seems that there was some dependence on your wife's sister, at times, for accommodation, not only by her at the time of this incident.  As I have said, when the family moved to Perth, that is, when you returned to Australia, you joined your wife and eldest child there. She was living with her sister, and you both did for a time. 

37It also seems that from about 2013, you only had part-time employment.  Your wife said, during the trial, that it was only months after the move to Albany that you ceased working altogether, and that tensions in the relationship grew, and she said you became angry and aggressive towards her.

38You did acknowledge to Dr Sullivan, whose report I shall refer to further shortly, that the relationship had been increasingly marked by frequent arguments.  However, you told him that you did not know why, and you felt that she was aggressive and tense towards you and did not like you in the house.  You told Dr Sullivan that in 2017, she told you to leave the house.  This account does not appear to acknowledge that you abandoned your wife and two young children in Albany, when you announced that you had had enough and were moving back to Perth, where you stayed with a cousin. Nor did your account to Dr Sullivan seem to acknowledge that you had not lived in the same household with them for some months before the offending incident. 

39Following the incident, you attended later that day at the police station, and I assume that you had received one or more calls to go there.  I accept that you did so willingly.  You were remanded that day and have been in custody ever since; that is now more than two years and two months.  It is 808 days, not including today.  All of that time will count toward your sentence.

40I am told that you have struggled with depression and felt isolated in custody.  You have not been able to see your children, who are with their mother, and are protected by a Family Violence Intervention Order, which was taken out very shortly after this incident.  You have no other family in Melbourne.  I am told that your brother came to Australia to visit you last December, but that he and your sister and parents live in India, and I accept that there are no others nearby who can regularly visit.  The lack of visits from family or close friends is inevitably isolating to anyone in custody.

41I was told that although you have continued to practice your Sikh religion in prison, you have not received visits from any Sikh priest.  I would expect that had you requested such visits, some should have been able to be arranged, but you have apparently not requested them.  It is open to you to do so.

42Whilst in custody, you have apparently completed some occupational training courses and you hope to complete further ones, in particular, in traffic management.  It is to your credit that you are looking to further qualify yourself and apparently look for options for employment on your release.  You have been working, I am told, in the laundry at Ravenhall.

43You come before the court with no prior criminal record, and you are entitled to some credit for that.  Whatever your relationship difficulties, you had not been in any trouble with the law before these events and, as I have said, had not had court orders concerning family violence against you.

44Consistent with your adherence to your religion, you have no history of using alcohol or drugs.  Therefore, you do not have those as risk factors for your getting into further trouble. 

45You underwent a psychiatric assessment by Dr Danny Sullivan in late March of this year, for which an adjournment of the plea had been sought.  A further report was provided by him, once your medical records from your time in custody were seen by him.

46I have already noted that the account you apparently gave to Dr Sullivan of the state of your marriage at the time of this incident gives a different impression from what I am satisfied had occurred in the months leading up to it.  Particularly, that you claim that you do not know what was causing arguments, and implied that it was only in April 2017 that your wife ordered you out of the house, as if it were your matrimonial home.  It was the home of your sister-in-law and brother-in-law, and you had not been living there at all with your family.

47As to your mental health history, you told Dr Sullivan that you had suffered depression and had self-harmed at the age of 27.  As best as I can tell, you said you had gone back to India for treatment, but could not recall details of the treatment you had received there, and said you had not had contact with mental health services or mental health professionals in Australia.  As best I can tell, that could well be the period in about 2011 that your wife referred to as occurring when you were living in Canberra with only one young child, and that as a result you left to go back to India, and she had moved to her sister in Perth.

48You told Dr Sullivan that since being in prison, you thought people were talking about you negatively and, more recently, you had been hearing voices, although you recognised that nobody was there.  You said this had occurred very occasionally in the past but had increased drastically since your incarceration.  You had consulted with a psychiatrist and psychiatric nurses in prison, and said you were on anti-depressant medication, which had resulted in better sleep and reduced anxiety levels, and the voices were somewhat reduced in severity.  After reading your medical file from Justice Health, Dr Sullivan wrote a supplementary report, confirming that in May 2017, that is, in the month after you were remanded into custody, you were described as stressed, of low mood, you reported bullying and negative thinking with suicidal ideation, but had no plan or intent to harm or kill yourself. There was a crisis call a week later where medical professionals assessed you.  You were seen in July 2017 by a psychiatrist, when you were assessed as sad and demoralised with symptoms suggestive of major depression, but not a more pervasive psychotic disorder. You were prescribed Avanza, an anti-depressant, with a low dose of an anti-psychotic medication at that stage.  You had intermittent further contact with general health services, including intermittently reporting hearing voices.

49In mid-2018, the pharmacist apparently questioned the anti-psychotic prescription, as it was of a sub-therapeutic amount, and increased it, but then it was ceased later last year, as you had improved even though you were erratic in compliance with the medication.  In late February of this year, you were noted to have experienced relapse of depression with psychotic features in the context of medication non-compliance, which I understand to mean that you had relapsed due to not taking the medication as prescribed.

50After reviewing your medical file, Dr Sullivan confirmed his earlier diagnoses.  He discussed why he did not consider there was a psychotic disorder, but felt the appropriate diagnosis was an adjustment disorder with mixed anxiety and depression that was moderate to severe.  This reflects deteriorated mood in response to life stressors, including the breakdown of your marriage and loss of contact with your children.  As it had persisted for most of the period that you were in custody, it would now meet the diagnosis of a major depressive disorder, that was moderate to severe, but with some improvement with the anti-depressant medication.

51He recommended that you continue on anti-depressant medication for the foreseeable future, with intermittent anti-psychotic medication when required.  He recommended that medication continue until all symptoms are in full remission for at least some months, to reduce the risk of relapse.  When you are returned to the community, he considered a GP could refer you to a psychiatrist for review.  In prison, he recommended that you should be followed up through outpatient mental health services.

52Dr Sullivan recommended that on release from custody, you undergo a men's behavioural change program or something similar to develop strategies to manage emotions without resorting to violence, and he considered you would benefit from culturally informed interventions, to take into account theories about gender roles and behaviour, as they may be held in the Sikh community.

53Dr Sullivan said he could not comment on your mental health at the time of the offending, but thought it clear that incarceration was weighing more heavily on you, and had persisted over the two years since you were remanded into custody.

54As there is no evidence of your mental state at the time of this offending, there was no reliance placed by your counsel on any mental disorder at the time of the offending, insofar as it might reduce your moral culpability for what occurred.[4]  There is evidence, through Dr Sullivan and his review of your medical file, that your mental health has deteriorated while you have been in custody, and is making your experience there more onerous.  I have applied some moderation to your sentence to take these later aspects into account, and that they are likely to continue for so long as you are in custody.[5]  However, I have not seen there to be grounds to moderate the application of general deterrence, nor to the degree that it is relevant to, specific deterrence.

[4]R v Verdins [2007] VSCA 102.

[5]R v Verdins [2007] VSCA 102.

55I was also asked to take into account the possibility that your immigration status could be reviewed as a result of these convictions. I am told that you have permanent residency in Australia. Under s.201 of the Migration Act, there is power for authorities to review your visa in light of these convictions.  However, you have not been notified by the immigration department that your visa is under review, nor that it is likely to be. In the absence of evidence to the effect that review and in particular a negative outcome is likely, I should not speculate about the potential outcome of a possible review.[6]  What I have taken into account is that it is likely to be a concern felt by you while you undergo your sentence, which will be weighing on you and making imprisonment harder to bear than for a person without that issue to worry about, that is a risk that you might lose your right to stay living in Australia and with that the opportunity to see you sons.

[6]Guden v R [2010] VSCA 196 at [25]-[30].

56I have said that general deterrence and community denunciation are the most important sentencing purposes in this case, with specific deterrence also of some relevance, because although you have no prior history of violence, you still seem to have little insight into the wrongfulness of this offending.  Apart from that lack of insight and a possibility of risk to Ms Singh or a future partner, although I do not make a finding that you are likely to do that, I regard you as otherwise having low other risk factors towards reoffending.  Your prospects of rehabilitation are, in my view, reasonably good.

57Taking all of these considerations into account, and as was conceded by your counsel, no sentence other than imprisonment would be appropriate.  As both charges arise out of the same overall events, that is, the second occurred shortly after the first, and also was your purpose in entering the house, that is the purpose being to assault your estranged wife Ms Singh – the principle of totality means that there should be some concurrency.  However, I also think there should be some cumulation to reflect that you went further after entering the house with the purpose of assaulting her, by actually causing injury to her in the way you did. 

58Would you stand up now, please.

59Urvashi Nan, on Charge 1 of aggravated burglary, you are convicted and sentenced to three and a half years' imprisonment.

60On Charge 2 of intentionally causing injury, you are convicted and sentenced to two years' imprisonment.

61I direct that one year of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1.  That creates a total effective sentence of four and a half years' imprisonment.

62I set a non-parole period of three years.  I declare that 808 days of pre-sentence detention, not including today, in relation to these charges, be reckoned as served.  That will deducted administratively from both the head sentence and the non-parole period.  It means that there is approximately a further nine and a half months before you will be eligible for parole.

63I was asked to make a disposal order, but I am not sure I have yet been provided with a draft of that.  If so, it was this morning, and I have not yet looked at it.  I was told that there is no need for the making of a forensic sample order, as the sample taken will be kept.

64All right, you can take a seat, Mr Nan, while I check that I have covered everything.  Were there any other orders or are there any other directions that are needed?

65MR PLUMMER:  No, Your Honour.

66HER HONOUR:  All right.

67MR PLUMMER:  There is just the s.6AAA, Your Honour, after the orders.

68HER HONOUR:  Well, no, because there was no plea of guilty.

69MR PLUMMER:  No, there was not.  I should leave now.

70HER HONOUR:  I have imposed a sentence that would have been reduced, had there been a plea of guilty.  But that was made very clear during the trial.

71MR PLUMMER:  I apologise.

72HER HONOUR:  That is all right.  Yes, I have signed the disposal order.  Mr Nath, do you want the chance to speak to your client before he is removed from the court?

73MR NATH:  Yes, Your Honour.

74HER HONOUR:  All right, I do have someone else who is to be brought in to the court from custody.  So, if you need to spend longer with him, it will have to be downstairs.

75MR NATH:  No, it will be quick.  Just to explain the sentence, Your Honour.

76HER HONOUR:  All right, yes.  No one else in court is likely to approach him.  So I will ask that Mr Nan be kept here, so his counsel can speak with him.

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