Director of Public Prosecutions v PS
[2023] VSC 85
•7 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0191
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PS[1] |
[1]In order to give effect to a suppression order made on 3 February 2022, a pseudonym has been used for the offender to prevent the indirect identification of his surviving daughter.
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2022 |
DATE OF SENTENCE: | 7 March 2023 |
CASE MAY BE CITED AS: | DPP v PS |
MEDIUM NEUTRAL CITATION: | [2023] VSC 85 |
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CRIMINAL LAW - Sentence – Murder – Stabbed wife and daughter to death while in drug-induced psychosis – Serious offending – Early plea – Remorse – Sentenced to total effective sentence of 27 years’ imprisonment with a non-parole period of 19 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Churchill | Ms A Hogan, solicitor for Public Prosecutions |
| For PS | Mr R de Vietri | Gallant Law |
HER HONOUR:
You have pleaded guilty to the murders of your wife and six-year-old daughter, on 13 January 2022.
In the weeks leading up to these events, you had been using methylamphetamine (“ice”), and were exhibiting behavioural changes to family, friends and neighbours.
During this period, you told one of your friends that you were “seeing weird things”. Another friend described you as seeming confused and illogical, three days before these events. Neighbours also heard you and your wife arguing more frequently.
Two weeks before your offending, your wife told her employer that you were not well, and were “using” again. Her employer noticed that she was stressed to the point that it was affecting her work.
In the days leading up to your offending, your wife told her mother in their regular conversations that you had been taking drugs and were no longer working.
On the day before these events, your gardener described your wife as being shaken up and nervous. As he left the property, he heard you yelling at each other.
On 13 January 2022, the day of your offending, you, your wife and two daughters were at home together. According to your older daughter, who was then 10 years old, ever since you woke up that morning you were “really worried something’s gunna happen to [your family]”.
At 12:11pm, your wife sent several text messages to a friend, asking for help. She said you weren’t feeling well, were having panic attacks and hallucinations, and needed to go to hospital. She said that you had been taking drugs for the past month and needed to go into detox, but were unwilling to do so. The friend said she would come over.
At 12:15pm, you called a friend and asked him to come over. He thought that you sounded low and stressed. You were saying things like, “everything is ruined” and that your family had been kidnapped. Two minutes later, that friend called your wife. She confirmed that she was home with you, and you were telling people that your family had been kidnapped, and were getting everybody worried.
Around 12:30pm, you called your mother-in-law. She told you she had sore legs, to which you responded, “Why do you have pain in your legs, have you been sleeping with another man”? She told you that was a dirty conversation and hung up the phone. She was concerned you may be on drugs, as you had never spoken to her like that before. She then told your wife to call police and an ambulance. Your wife said she knew you were under the influence of drugs at that time, and insisted that she would be able to take care of you.
At 12:40pm, your wife called 000, asking for police help to deal with you. She said you had taken ice, and were having panic attacks and bad hallucinations. She said that you hadn’t done anything to her or the family, but you needed attention.
When your wife’s friend arrived, she saw you pulling your shirt up and down as if you were hot. You were saying things that were not making sense. You were saying that someone was trying to harm you and the girls. You told her that you were seeing things in your room. You could not calm down, and were getting up and walking around, then sitting back down again.
While they waited for police to arrive, your wife told her friend that she could tell you had taken some type of drug, because of the way you were acting. She said you felt hot and cold that day, and she had tried to take you to the hospital but you refused help.
Shortly after 1:00pm, paramedics and police officers arrived at your house. The paramedics took the lead, as there seemed to be no immediate threat of violence.
Your wife and her friend told them that you had taken ice, but they were not sure when, or how much you had taken.
Both paramedics described you as being pleasant and polite, and said you did not appear agitated. You told paramedics that you had used ice earlier that day, had taken some Valium about fifteen minutes before they came, and were feeling better. The paramedics thought that you did not appear to be overtly affected by drugs or distracted. The police thought you seemed mildly drug-affected.
You repeatedly told the paramedics that you were okay, that you were a little bit anxious, and just wanted to sleep. You answered all their questions regarding auditory and visual hallucinations, thought processes and your current state, including if you intended to harm yourself or others. You said you did not want to go to hospital.
Your wife told the paramedics that you had never been violent or aggressive, that you were kind and gentle, and that you would never harm them.
Your wife suggested to paramedics that perhaps she should give you more ice, as it had calmed you down in the past. The paramedics advised her not to do that.
It was decided that you did not need to be taken in under the Mental Health Act 2014, and at 1:30pm the paramedics and police left.
After your wife assured her friend that you had never hurt her or the children, and that she loved you and wanted to help you, her friend left about an hour later.
Around 3:45pm, your wife took your daughters to the shops. Between 4:20pm and 4:48pm, you called her thirteen times; she answered seven of those phone calls. She told you they were buying books. You told her you thought that she and the girls had been kidnapped, and you were coming to the shopping centre to meet them. Around 5pm, your wife and daughters returned home from the shops.
Shortly after 7:45pm, the girls were in the lounge, when they heard their mother screaming. They got up to investigate.
The older girl saw you and your wife in the playroom. She saw her mother get up off the ground, covered in blood. You were holding a knife. By this time, you had stabbed your wife with the knife several times.
Around 7:50pm, your wife and older daughter ran down your driveway, towards the road, with your wife continuing to scream for help. Your wife tried, unsuccessfully, to get the attention of a passing driver, before running to the front door of the next door neighbour.
Less than half a minute after your wife fled the house, you ran down the driveway. During that short period of time since your wife had left, you had stabbed your younger daughter.
As you ran down the driveway, you saw your older daughter, who was out the front of the property. You ran towards her, holding a knife in your hand. She saw you, screamed and ran towards the road. You ran after her, but tripped on the footpath, which allowed her to run across the road. You then got up and yelled towards her, “I need to kill you, I need to kill you”, while swinging the knife in the air.
You turned and ran up the driveway of the neighbour’s house, to where your wife was standing on the front porch. Your wife was visibly bleeding, and you were furious, screaming at her, and trying to pull her away. Your wife begged you to stop, and asked the neighbour to open the door.
Your older daughter had moved back across the road, to try and check on her mother. You then stumbled down the driveway, hitting the driver’s side of the car parked in the neighbour’s driveway.
Your older daughter saw that you were coming back towards her, still carrying a knife. Despite wanting to help her mother, she had to flee for her own safety as you got closer; she ran to a nearby house for help.
At that point, you stumbled onto the nature strip, where you lay down, still holding the knife. You wriggled around on the ground, yelling out your older daughter’s name and other incomprehensible words. At one point, you sat up and saluted the driver of a passing car. At another point, you waved at another driver. Your behaviour was erratic and disoriented.
You then got up and walked back to the front porch of the house where your wife was. You were holding the knife and yelling, over and over again, “I kill you” and “I love you”. Just before 7:52pm, you attacked your wife again, making at least seven stabbing motions while repeating, “I kill you”.
You then walked back to your front yard. You stumbled and sat on the ground next to a water tap, which you turned on. You stayed in your front yard for about three minutes. During that time, you were restless, waving your hands around erratically and changing positions from lying down to sitting up. You were also ranting and raving to yourself; most of what you said was incomprehensible. Your wife was still calling out for help.
At 7:55pm, you got up and yelled incomprehensibly at your wife, before starting to walk back to the neighbour’s front porch, where she still was. You were still carrying the knife. At 7:56pm, you attacked your wife for the third and final time.
After stabbing your wife, you stood over her for a short period and yelled at her. It appears that she said something back to you, however what you both said could not be understood by others. You stumbled into the car parked in the driveway, before walking back to your front lawn and sitting in the same position as before.
While you were seated, you continued to rant and rave to yourself. Some of the speech that was understandable included “Why did you kill the girl?” and “I love you.”
Shortly after 7:58pm, the first police and ambulance units arrived. You were lying on your back in the front yard, with both hands holding a knife that was pointed towards your stomach.
One of the police officers drew his firearm, and challenged you to drop the knife. You did not comply and kept saying, “Kill me”.
Realising that you were only a threat to yourself at that stage, the officer put his firearm away and tried, unsuccessfully, to negotiate with you. You raised the knife above your head with both hands, and stabbed yourself twice to the abdomen.
Another officer deployed her capsicum spray, which immediately subdued you and allowed police to handcuff and arrest you. Police removed the knife from your hands and threw it a short distance away. They also found a second knife near your feet; they threw that away too.
Shortly after 8:00pm, more police arrived and entered your house. They found your younger daughter, lying on her side on a bed in the front bedroom. She was unresponsive. She had two visible stab wounds to her upper back area. Paramedics carried her out of the house, into an ambulance, where they treated her.
A few minutes later, emergency services found your wife on the neighbour’s front porch. She was lying on her side, with her skin and clothes covered in blood. She was in a state of altered consciousness, and had large stab wounds visible in the centre of her upper chest. Her condition deteriorated rapidly and, at 8:12pm, resuscitation efforts began.
At 8:15pm, your younger daughter was taken to hospital for further treatment. Upon arrival, she deteriorated into cardiac arrest and was taken to surgery a short time later.
At 8:45pm, resuscitation efforts on your wife ceased, and she was declared dead at the scene. The post-mortem established that she had suffered eight stab wounds and several defensive injuries.
In the early hours of the following morning, your younger daughter was also declared dead. She had suffered two stab wounds to her back, and one superficial stab wound to her chest.
After being arrested for your wife’s murder, you were taken to hospital for further medical treatment. You stayed in hospital for a fortnight, undergoing treatment for your self-inflicted stab wounds. You were kept under sedation for much of that time.
Homicide detectives interviewed you in hospital on 23 January 2022. When told that you were under arrest in relation to the deaths of your wife and daughter, you kept repeating that you hadn’t killed them. You said you hadn’t killed anyone and “Shaan Sharma killed my wife and my daughter”. When asked who Shaan Sharma was, you replied, “A taxi driver”. You were still psychotic at the time of that first interview, and continued to receive psychiatric treatment for some months after your discharge from hospital into prison.
After you passed a fitness assessment, you participated in a formal record of interview in June 2022. In that interview, you were clearly distressed when recounting what had happened. You made full admissions to what you had done, in so far as you could remember it.
This is objectively serious offending, for a number of reasons.
Although the offending was completely spontaneous, in the case of your wife, you returned to inflict wounds on her on at least three occasions over a 10-15 minute period.
Your actions were brutal and terrifying, to your victims and to those who observed them.
Your wife and daughter were both unarmed, and unable to protect themselves, when you stabbed them multiple times. Given her age, your younger daughter was particularly vulnerable, and would have had no chance of defending herself or fleeing. Attacking your wife and daughter also involved a breach of your duty as husband and father to protect them.
It is also relevant to the gravity of this offending that part of the attack took place inside the family home, where your wife and children should have felt safe, and part of the attack took place in broad daylight, on a residential street, in full view of neighbours and passers-by.
Although you are not being punished for your threats or actions towards your older daughter, the fact that you committed these offences in front of her, a young child, is an aggravating feature of your offending.
You were not motivated to do what you did out of any ill will towards your family. On the contrary, you loved them, and wanted to protect them from what you believed, in your irrational, psychotic state, to be a threat of kidnapping and murder by someone else. In the CCTV footage of the outside portion of these events, you can clearly be heard yelling out alternately “I kill you” and “I love you”, during the attack on your wife, while ranting and raving, and staggering about in a disoriented manner.
There is no dispute that you committed these terrible acts because you were in a drug-induced psychosis, after using ice. The expert evidence is that your actions were driven by underlying psychotic beliefs, which would have impaired your judgment to make reasonable decisions, and your understanding of the wrongfulness of your actions. Had your state of mind been caused by an organic or underlying psychiatric illness, rather than by drugs, a defence of mental impairment would have been open to you.
That offending occurred whilst the offender was in a drug-induced psychosis may have an aggravating or mitigating effect on the offender’s sentence, depending on the particular circumstances of the case.
If the offender knows that using the particular drug causes a propensity to violence, that can be an aggravating factor. The prosecution does not suggest that your drug use is an aggravating feature in this case.
However, your counsel argued that the fact that this offending occurred whilst you were in a drug-induced psychosis should have a mitigatory effect.
Ordinarily, an offender’s moral culpability is not reduced by reason of the fact that they committed the offence while under the influence of a drug-induced psychosis. The origin of that principle is that where a condition is self-induced, it is not regarded as mitigatory, as the offender is morally responsible for the condition they suffer at the time of the offending.
In some circumstances, the offender’s drug-induced psychosis can attract the principles in Verdins.[2] However, that will not be the case if the offender had foreknowledge of the probable consequences to their mental health of voluntary drug use.
[2]R v Verdins, Buckley & Vo [2007] VSCA 102.
In the case of Arvanitidis,[3] the Court of Appeal said that in order to lose the benefit of Verdins, it was not necessary that the offender have foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended, or make him generally dangerous and violent. If the offender was aware that, by taking the drug, his judgment would be so affected that he would behave irrationally, or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance. The court also noted that it is for the offender to establish, on the balance of probabilities, that he did not know that the drug would have such effects.[4]
[3]DPP v Arvanitidis [2008] VSCA 189.
[4]Arvanitidis at [34].
In the Arvanitidis case, the offender did not know that ice would cause him to become dangerously psychotic and violent. However, his foreknowledge of the potential for ice to cause him to experience paranoia, persecutory delusions and other forms of disorganised thought, were sufficient to exclude the Verdins principles.[5]
[5]Arvanitidis at [34].
I accept your counsel’s submission that some other cases seem to have adopted a more flexible approach than Arvanitidis. For example, in the cases of Alexander[6] and Martin,[7] the Court of Appeal said that the critical factor in determining how to treat a drug-induced psychosis for sentencing purposes is the degree of foreknowledge on the part of the offender. That is to say, it is not an all-or-nothing exercise.
[6]Alexander v R [2021] VSCA 217 at [43].
[7]R v Martin [2007] VSCA 291 at [21].
However, the facts of those two cases are not analogous to yours. In Alexander, there was no evidence that the offender had ever experienced psychotic symptoms before, notwithstanding a lengthy history of substance abuse; the offender’s moral culpability was therefore reduced slightly. In Martin, the offenders’ moral culpability was increased, not decreased, because he had foreknowledge that consuming drugs caused him to become dangerously psychotic.
The Court of Appeal decision in Marks[8] is a better illustration of the more flexible approach. In that case, at the time of offending, the offender was in the early stages of recovery from one of a number of earlier psychotic episodes, which would have made him particularly sensitive to the psychosis-inducing effect of ice. Although the offender had experienced paranoid delusions, and been hospitalised for drug-induced psychoses, on several previous occasions, the expert evidence was that he would not have known or anticipated the likely degree of the consequences of taking ice on this particular occasion. The court held that the offender’s moral culpability should be reduced to some extent.
[8]Marks v DPP (Cth) [2019] VSCA 253.
It is therefore necessary for me to have regard to your drug use and mental health history, to consider what foreknowledge you had.
You started using ice in 2019. There is some suggestion that you may have started using it as a way to deal with stress. It seems that you used it fairly regularly from then until this offending.
You first displayed psychotic symptoms caused by ice use around April 2021, some nine months before this offending. At the time, you thought you were in some sort of danger and should kill yourself. As a result of your increasingly paranoid and erratic behaviour, you were taken into custody under the Mental Health Act 2014, and admitted to hospital for assessment. You were detained in hospital for about one week. You were diagnosed with a drug-induced psychosis.
Although you exhibited paranoia and anxiety whilst in the 2021 drug-induced psychosis, there is no evidence that you harboured thoughts of harming anybody other than yourself, or behaved violently towards anyone.
You started using ice again only a few months after that first psychotic episode.
In the weeks leading up to this offending, you had been experiencing persecutory delusions, perceptual disturbances and disorganised behaviour. But you had not been violent towards anyone. On the day of the offending, your wife was still telling people that you had never been violent to them, and believed you would never harm them.
Even though they were told about the drug-induced paranoia and delusions that you were experiencing, the police and paramedics who visited your home earlier on the day of this offending did not assess you as presenting a risk to anyone.
You told police in your record of interview that you had not slept for a couple of days before the offending because of your ice use; you said that had happened on two previous occasions. You also admitted that, when that happened, it made you feel paranoid and experience hallucinations.
I am satisfied that you had no foreknowledge that you had any propensity for violence when drug-affected. I am satisfied that you had some foreknowledge, from your experience the previous year, that taking ice could make you feel paranoid and experience hallucinations. But, as in the Marks case, there is no evidence that you would have known or anticipated the likely degree of the consequences of taking ice on this particular occasion. In the circumstances, your moral culpability should be reduced slightly.
I turn to consider the effect your actions have had on others.
Unsurprisingly, your actions have had a profound effect on your surviving daughter, who is now almost 12, and her grandparents.
Your older daughter has effectively lost her entire immediate family. There is evidence before the court of the effect your actions have had on her. I do not propose to go into any detail about that, in order to protect her privacy and wellbeing.
However, I would like to acknowledge how very brave your older daughter was when these terrifying events were occurring. On several occasions, she tried to check on and protect her mother, who was visibly bleeding and screaming for help. She was also worried for her little sister’s safety. She was in danger from you herself on several occasions. When she got to the safety of a neighbour’s house, she spoke to a 000 call-taker, and explained to them what was happening. There is nothing more she could have done to help her mother or little sister.
Having previously lost two of their three children, your wife was her parents’ only surviving child. Your parents-in-law have described their daughter as the light of their lives, and their granddaughters as their sunshine and reason for smiling. After qualifying as a dentist, their daughter worked with them in their dental practice before moving to Australia. She was a lovely, bubbly person, and her singing and dancing will always stay in their minds.
Your parents-in-law are shattered and distressed. They have sleepless nights and nightmares. They feel that life is meaningless. Your actions have caused mental trauma and aggravated pre-existing medical problems. They have also found it hard to resume their work. Social gatherings and festivals pass them by, leaving them with dread, because they will not be joined by their daughter and granddaughter.
There is nothing this court can say or do that will bring back your wife and daughter, or heal the immense grief and pain caused by your actions. The sentence I am going to impose is not a reflection of the value of their lives. Rather, it is a reflection of the large number of factors which judges are required by law to take into account, only one of which is the impact of the offending on any victims of the offence.
I turn to consider your personal circumstances. You were born in July 1981 in the state of Punjab, India. You were 40 at the time of this offending.
You grew up in a comfortable home, with two sisters and your parents. Your father was physically violent towards his wife and his children.
When you were in your mid-teens, you were kidnapped, drugged and taken to a different town. You eventually managed to evade your captors and return home.
You enjoyed school and did well in sports. After school, you went to college and completed a Bachelor of Arts degree, before working in your father’s timber business in a customer service role.
Your earliest memory of substance abuse was taking an overdose of medication in your early twenties, in response to your father hitting you. You attempted suicide twice in your twenties.
You moved to Australia in January 2005, and undertook diploma studies in commercial cookery, while working part-time at a convenience store. You remained in Australia, gaining Australian citizenship in 2009. You then leased a taxi and worked as a taxi driver.
In 2009, you married your wife in an arranged marriage. In 2011, your wife gave birth to your older daughter.
Around 2012, you and your family returned to India, and started living with your parents. You returned to Australia about one year later, because you and the family had been receiving threats after making a complaint about a corrupt local official. The stress caused by these threats led to you seek psychological counselling after your return to Australia.
In 2015, your younger daughter was born.
You supported and cared for your family, and there was no family violence towards them prior to this offending. However, you were unfaithful to your wife, having short relationships with two other women.
On two occasions in 2014, you were convicted in the Magistrates’ Court of contravening an intervention order taken out by one of those other women. You were also convicted of assault, for slapping her on one occasion. Both times, you were placed on a community correction order. The specific details of that offending are not known to me, but there is no suggestion that it was connected with drug usage. You underwent psychological counselling after that relationship broke down.
Since emerging from your psychotic illness, you have developed some depressive symptoms, in reaction to your offending and its consequences. You continue to have some suicidal ideation. It is possible that your depressive symptoms may flare up in the future, especially around anniversaries and other significant dates. But it is not suggested that Verdins principles 5 or 6 are engaged in your case.
Whilst in custody, you have begun working again, and have spent time in daily religious observance and reading.
The prosecution accept that you pleaded guilty at the earliest reasonable time, after a psychiatric evaluation had been completed to determine whether a defence of mental impairment was available.
You are entitled to a discount on the sentence to be imposed upon you, in recognition of your guilty plea and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses and family members have been spared what would have been an extremely traumatic trial for all concerned.
There is some evidence that you are remorseful. You made admissions to police, once you were well enough to do so. You were clearly distressed when speaking to police and psychiatrists about these events. You wrote a letter to the court, saying that you were sorry for your mistakes, and were ready to be punished for what you had done. In the letter, you also asked for forgiveness. However, the letter does not disclose an understanding of the full enormity of what you have done; it is also focussed on descriptions about what a wonderful husband and father you were, and the effect that your actions have had on you. The development of insight, and acceptance of full responsibility for your actions, will be an ongoing process for you.
The court was provided with numerous letters of support from your family and friends, most of whom live overseas. They describe you as a kind and responsible person, a good family man. They say that what you did to your wife and children was totally out of character, and due to drugs. It is clear that you have many people who will continue to support you going forward.
In cases of murder involving family violence, the sentencing principles of general deterrence, denunciation and just punishment will ordinarily be strong considerations. That is the case because family violence is often motivated by factors such as marital discord, jealousy, control, coercion, suspicion of infidelity, and the like; none of those factors apply in this case. These sentencing considerations are moderated to a slight degree by the fact that your conduct was caused by a drug-induced psychosis.
There is still some need for specific and general deterrence, to deter you and others from consuming ice or other illegal drugs in the future.
I accept that you have good prospects of rehabilitation, provided that you are able to abstain from illegal drug use. I have set a non-parole period which will enable you to learn to live in the community without using drugs, whilst under the supervision of the Adult Parole Board.
Notwithstanding the seriousness of this offending, I agree with both parties that it would not be appropriate to impose a sentence of life imprisonment in this case.
Both offences fall within the standard sentence provisions.[9] A standard sentence is not the same thing as a mandatory sentence. Nor is a standard sentence the primary sentencing consideration, or the starting point from which to add or subtract time. It is just one of the many matters to be taken into account by a court in performing the instinctive synthesis method of sentencing.
[9]The standard sentence for murder is 25 years.
In addition, you are to be sentenced as a serious violent offender for the murder of your daughter (charge 2). That means the court must have regard to the protection of the community as the principal sentencing purpose. However, the prosecution does not suggest that a disproportionate sentence is required to achieve that aim.
Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the murder of your wife (charge 1), I sentence you to 22 years’ imprisonment. I treat that as the base sentence.
For the offence of murder of your younger daughter (charge 2), I sentence you to 22 years’ imprisonment.
Although these offences were committed within a relatively short period of time, and whilst you were in the same psychotic state, there should be some cumulation to reflect the loss of each individual life. However the cumulation should be tempered to avoid a crushing sentence. I order that 5 years of the sentence for charge 2 be served cumulatively on the base sentence.
That makes a total effective sentence of 27 years’ imprisonment. I fix a period of 19 years as the period you must serve before you become eligible for parole.
Had you not pleaded guilty, I would have sentenced you to a total effective sentence of 31 years, with a non-parole period of 23 years.
I declare that the period to be reckoned as already served under this sentence is 406 days, not including today’s date. I direct that there be noted in the records of the court the fact that such a declaration was made and its details.
I further order that a disposal order be made.
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