Director of Public Prosecutions v Palsingh
[2024] VCC 1746
•28 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00392
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VARINDER PALSINGH |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 July, 17 & 28 October 2024 |
DATE OF SENTENCE: | 28 October 2024 |
CASE MAY BE CITED AS: | DPP v Palsingh |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1746 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Robbery - armed robbery
Legislation Cited:
Cases Cited:
Sentence:4 years' imprisonment, non-parole period 2 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP on 31/07/24 & 17/10/24 For the DPP on 28/10/24 | Mr Damien Hannan Mr Z. Menon | Office of Public Prosecutions |
| For the Accused on 31/07/24 For the Accused on 17/07/24 | Mr M. Brennan Mr J. Moore | Emma Turnbull Lawyers |
HIS HONOUR:
1 Varinder Palsingh, you have pleaded guilty to an offence of robbery and an offence of armed robbery, which carry maximum sentences of 15 years and 25 years respectively.
2 You have no prior convictions. The prosecution tendered and relied upon a summary prosecution opening dated 11 July 2023 which set out the facts relating to your offending. The first offence occurred on 7 October of 2022, when at about 10.45 am your victim, a female, was walking along a footpath through Flagstaff Gardens in Melbourne. It was raining, she was holding an umbrella in front of her face and she did not notice you running towards her until you were about 5 metres from her. She was frightened and shocked and fell to the ground. You put your right arm around her neck and pulled her up off the ground. When she got back on her feet you placed your hand near her neck and said, 'Don't yell, keep silent or I will kill you.'
3 She was terrified of what you would do if she did not comply with your wishes. She produced her purse and opened it, you took about a hundred dollars in cash then demanded that she unlock her mobile phone and log in to her mobile banking application. She complied, still terrified, and once she logged in to her banking application, you snatched the mobile phone and proceeded to scroll through in her presence before you ran off.
4 She reported the matter to the West Melbourne police station. At the police station she contacted her bank to discover that you had conducted three transactions on her bank account using her mobile phone and that you had dishonestly obtained from her account in those three transactions a total of $2,324. They were transferred to the account of your partner Sandy Kaur.
5 Six days later, on 13 October 2022 at about 2 pm your second victim, another female, was walking through Flagstaff Gardens. You began to follow her. When you got close to her you reached from behind her and placed your hand around her mouth. She turned to see what was happening. She saw you. You were holding a boxcutter at waist height. You grabbed the collar of her jacket with one hand whilst moving the boxcutter closer towards her with the other saying, 'Show me your phone.'
6 She tried to stall you and asked, ‘What do you want, please don't do this to me, it's my birthday.' She continued to try and stall you and you said, 'Do it quick or I will kill you.' She was scared that you meant what you said. She tried pushing away the hand that was holding the boxcutter. As a result she sustained two minor cuts to her right hand, one on her index finger and one on her thumb.
7 You maintained your grip on her jacket until she produced her wallet. You took three $20 notes from her wallet. She screamed, 'Don't do this, stop it.' You then ran off with her $60. Others came to assist your second victim and the matter was reported to West Melbourne police. The police investigated through the numbers that were apparently associated with you and through CCTV footage. On 14 October 2022 at about 1.30 pm you were located at the Watergardens railway station in company with your girlfriend and both you and your girlfriend were arrested.
8 You told police that she did not know about the robbery. You told police that you had been using heroin over the last five to six months, that you had been struggling not to take it because of the effect that the withdrawals had on your body. You told police that you obtained methadone from a Deer Park pharmacy to assist with your addiction. In relation to the afternoon of the first of those two incidents, you indicated that you had not used drugs for three days and had a fever and headache.
9 You told police that you needed money and you were not harming anyone. You said that you took the money from your first victim's account through a transfer, and you identified the approximate amount that you had taken. You were asked by police how it made you feel that your victim was scared and you replied, 'It's very shameful act'. You went on to tell police that you were ashamed because you have lived here for years and also worked. But you claimed that you had no choice on that day, and did not know what to do.
10 You denied threatening to kill your first victim, and indeed your second victim. In relation to the second victim you said that you took $60 from her and used it for methadone. You claimed that your second victim gave you the money because you told her it was urgent and you denied that you said, 'Do it quick or I will kill you.'
11 At the conclusion of the interview you said, 'I'm really sorry for that, it's my first time please, I'm - have never … nothing harm to anything - anybody else, and I’m nothing doing to anyone else.'
12 Your partner, Ms Kaur, was released from custody. You remained in custody for a total of 298 days until you were granted bail by a judge of this court.
13 The prosecution also tendered and relied upon a victim impact statement from the victim of Charge 2 on the indictment, which is Exhibit B. She sets out her feelings of fear and the effects that your conduct had upon her. Both of your victims would have been extremely fearful.
14 Turning to matters personal to you. Your counsel provided me with a document headed 'Updated defence submissions for plea' dated 29 July 2024. That became Exhibit 1 at the plea hearing. I was also given a report from Patrick Newton, psychologist, dated 16 July 2024 which dealt with his first interview with you on 11 June 2024, when you attended his rooms and participated in a two-hour clinical consultation. That was supplemented by a further one-hour consultation during which you answered questions in a test, the results of which he ultimately discarded on the basis that, according to his report, he found that there was some exaggeration of both physical and psychological distress. He went on to explain in paragraph 12 of the report that responses such as those could be classified as ‘ “a cry for help” and are often obtained by unsophisticated individuals who are seeking to ensure through exaggeration that the examiner has recognised their suffering.’
15 And he indicated that, given the problems with your responses, the one-hour testing procedure had not been used for the generation of inferences about your mental state or personality. He went on to say that you completed a much shorter five-minute test which he did use to support his findings that you showed symptoms of post-traumatic stress disorder which were in partial remission; meaning that, at that time of the consultation you did not have post-traumatic stress disorder.
16 He found that there were elements of reactive anxiety as a result of your predicament facing the prospect of a term of imprisonment and also facing the prospect that your appearance in court may result in you being returned to India against your wishes. The symptoms of post-traumatic stress disorder that Mr Newton found apparently rose from an incident which occurred in November 2018 in India and about which you gave evidence during the hearing on 31 July of this year and about which I was supplied with further documentation, which became Exhibit 12, subsequent to you giving evidence,.
17 Part of Exhibit 2 was a further report from Mr Newton dated 16 October 2024, which was obtained as a result of a further 30-minute consultation with you via video link to prison, after you had been remanded in custody at the first plea hearing on 31 July 2024. His second report found that there had been ongoing symptoms of post-traumatic stress disorder, remaining in partial remission, indicating that the condition itself was still not established but that symptoms of the condition were remaining residual symptoms and that you had by then developed features of an adjustment disorder with depressed mood.
18 He indicated that that was not a major depressive disorder but that the symptoms were much worse than those which he had observed in the majority of other prisoners who he had examined in the course of his work as a clinical and forensic psychologist. In other words, there was a substantial deterioration in your mental health during the period between 31 July and 16 October, when he consulted with you again.
19 Mr Newton gave evidence at the adjourned plea hearing on 17 October 2024. I did not find him to be a particularly compelling witness, and indeed many aspects of his evidence I found quite unsatisfactory, including his explanation of what inferences could be drawn from paragraph 12 of his first report to which I have already referred.
20 However, I conclude that you have mental impairments, the precise origin of which I am a little unsure, and that there is a serious risk that there will be a further substantial deterioration in your mental health as a result of your serving a term of imprisonment. I do that with some hesitation. But I think that some of the anomalies in the material that is used to support your claim that you suffered a traumatic event in 2018 in some of the responses that you gave to Mr Newton and in other aspects of the evidence might be explicable as language and cultural differences. Therefore with some hesitation I found that Verdins limbs 5 and 6 are both established.
21 I am sceptical about the reasons for leaving India that you put forward in your evidence. I am extremely sceptical about the fact that you did not apply for a protection visa in Australia until after you were arrested for this offending. Also the supporting evidence as to the alleged traumatic event and the nature of the disagreement between your father and his brother which led to the alleged traumatic event was not obtained until after your arrest for these matters. Yet the support from the representative of your village in India is dated 23 November 2022, well after your arrest.
22 So the basis for your claim for a protection visa seems to be spurious, to say the least. Why it is you are prevented from returning to some other part of India other than the village from which you originally came, the very place where the claimed threat exists, has not been explained and it is far from clear to me. India is a very large place. The need for you to be protected from return to India simply because of a local dispute between your father and his brother seems to me to be far-fetched in the extreme. However, others will have to consider your claim for a protection visa albeit that it was made following your arrest on these matters.
23 To the extent which the ‘traumatic’ event occurred at all, and I am not totally convinced that it did, it has not been established that there was a sound basis for either you or your brother leaving the country to escape further harassment at the hands of your own relatives in the area in which you lived.
24 However, I accept that the fact that you may be deported from Australia will be an added stressor for you during your period in custody. I have no doubt that you wish to remain in Australia and the prospect of deportation will weigh more heavily upon you than it would upon somebody who did not have deteriorating mental health since your remand in custody.
25 The next document that I was supplied with was a letter from you, Exhibit 3, addressed to your second victim. I do not find letters of that kind provided to the court impressive. I give them very little weight; however I note its content.
26 Exhibit 4 is a letter from your partner Sandy Kaur. She indicates that you have expressed remorse for your conduct. You expressed remorse to Mr Newton, and you expressed remorse to the police. I accept that you are sorry for what you did.
27 Exhibit 5 is a letter from your older sister. She stresses the fact that you have been worried about your family situation in that your father is sick, recently had a liver transplant and is struggling with health issues.
28 Exhibit 6 is a letter from your brother-in-law stressing your remorse.
29 Exhibit 7 is a doctor's authority showing that you have had a prescription for methadone in the past.
30 Exhibit 8 a series of certificates of courses that you have done during your time in custody.
31 Exhibit 9 is a letter from you addressed apparently to me dated 30 July 2024. I give letters of that kind very little weight and I think the whole practice of providing those sorts of letters at plea hearings is to be discouraged, particularly when you are represented by counsel who can speak on your behalf.
32 Exhibit 10 is a bail support report dated 27 March 2023.
33 Exhibit 11 is some photographs of the hand of the second victim, supposedly to show me the ‘triviality’ of the injuries suffered by your second victim.
34 And Exhibit 12 is the three documents obtained apparently from India, one a medical certificate which seems to have been compiled on 8 August 2024 (at least, that is the date the document bears) and supports the fact that on 15 November 2018 you were brought to the local hospital near where you live. You had bruises and contusions on your back, chest, abdomen and limbs, contusions and swelling on the right arm and pain and swelling on the head. You were very uncomfortable, feeling severe pain and you were given some treatment, kept in hospital for two hours, discharged with oral medicines, and advised to follow up after five days.
35 Also, the two other documents to which I have already referred. One is a letter dated 13 September 2024 to support the proposition that you have suffered injury in November 2018 and that according to the document which is headed, 'Affidavit' the deponent indicates that you were lying on the side of the street unconscious when he found you. That claim does not sit well with the evidence that you yourself gave at the plea hearing and heightens my suspicions that the story you told is either false or exaggerated.
36 Finally there was the document dated 23 November 2022 from a representative of the village from which you come supporting your contention that there was a serious dispute between your father and his brother over some land, giving rise to the incident that you described in your evidence which led you to being in hospital as a result of injuries allegedly suffered through your kidnapping and beatings from people associated with your uncle in India.
37 Your counsel acknowledged that you accept that by any measure the charges are extremely serious. I endorse that. They are the more serious in that you committed two offences six days apart. You had plenty of opportunity to think about what you had done in relation to the first of those charges before embarking on the second course of offending. You planned each of them.
38 They may not have been terribly sophisticated but they were committed in a brazen manner in broad daylight, in a public place, on vulnerable females, causing them enormous fear, each coupled with a threat to kill. The second of those offences was committed in circumstances where you had had plenty of time to consider, reconsider and reconsider again the offending the subject of Charge 1. Had you been genuinely remorseful about that, you certainly would not have embarked on the second offence. Your remorse arises primarily because you were caught.
39 It may be that now, on reflection, you have genuine remorse but such remorse as you had from your first offence did not carry over to your conduct 6 days later. You told lies to police. In your testimony before me you admitted that you had told lies to the police. Your counsel's first submission was devoted, at least in part, to establishing that the offence was not a category 2 offence and that, if it was, an exception applied which enabled me to impose a sentence that did not necessarily involve a sentence of imprisonment with a non-parole period.
40 I have indicated this morning that that argument, whatever its merits, is academic. Because this offending is far too serious to impose a sentence other than a sentence of imprisonment with a non-parole period.
41 It was noted by your counsel that you travelled to Australia on a tourist visa and then converted to a student visa. I note that even during the period when you were apparently a heroin addict and dabbling in other drugs, you were employed as a truck driver. Whether or not you had the right to do that work on a student visa, it carries a serious risk to the public.
42 I accept that your father has had serious health issues. That will have played on your mind. I accept that there may have been reasons about your departure from India that have caused you some stress. None of that excuses your decision to take either recreational or other illicit drugs. Any link that may be drawn between trauma and stress that you have suffered and this offending conduct has not been argued by your counsel and clearly does not exist.
43 The fact that you may have been seeking money to ameliorate your drug addiction at the time of your offending is no mitigation. You have family in this country that have been a support to you. You have a partner that you have been living with since 2020. You planned to settle in Melbourne and eventually start a family. You are a member of the Sikh religion.
44 You had a good character prior to this offending. It seems that you had a good upbringing with every chance in life, that you had good education and you showed promise during your education, although you did not complete a University degree. I have already indicated the prospect of deportation will undoubtedly weigh heavily upon you.
45 I accept that Verdins principles 5 and 6 apply to reduce the sentence that would be otherwise appropriate in this case.
46 I accept that you have shown reasonable signs of rehabilitation, that your risks of reoffending are low and that you have every prospect of staying out of trouble in the future. You have the support of your family. You are readily employable. You pleaded guilty to these offences which is consistent with remorse and has significant utilitarian value. It has spared your victims the stress and strain of having to give evidence in a trial.
47 You were on remand in custody from 14 October 2022 for a period of 298 days at the time when there were significant restrictions within the prison system. That time would have been unusually onerous and is to be taken into account in assessing the appropriate sentence. I accept that you are now remorseful. I have been urged by your counsel to ensure that I pay proper regard to the totality principle and that substantial concurrency is warranted between the sentences for Charges 1 and 2. I accept that submission.
48 It was urged upon me that I should consider a combination sentence, but for the reasons I have already indicated to your counsel in discussion, I am not persuaded that that is open to me, given the nature of the offending conduct and the overall circumstances.
49 I balance all those factors: the need to punish you adequately for your offending, the need to denounce your conduct in very strong terms for very serious offending, the requirement to pay proper regard for the need to deter others from committing offences of this kind and to deter you from further conduct of this kind, against the need to give proper regard to your prospects of rehabilitation and to give you credit for your pleas of guilty and those prospects.
50 Varinder Palsingh, on Charge 1 you are convicted and sentenced to imprisonment for two years and nine months.
51 On Charge 2 you are convicted and sentenced to imprisonment for three years and six months.
52 Six months of the sentence on Charge 1 will be served cumulatively upon the sentence of three years six months and six months on Charge 2.
53 The total effective sentence is therefore imprisonment for four years.
54 I fix a non-parole period of two years and six months.
55 I declare pre-sentence detention of 298 days as time to be reckoned as served on the sentence that I have imposed and deducted administratively from the time you will actually have to serve.
56 I make the forfeiture and disposal orders in the terms of the drafts with which I have been provided.
57 But for your pleas of guilty I would have sentenced you to imprisonment for five years and nine months and would have fixed a non-parole period of four years and two months.
58 Are there any other matters, Mr Menon?
59 MR MENON: No Your Honour. As Your Honour pleases.
60 HIS HONOUR: All right. Yes. Thank you both.
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