Director of Public Prosecutions v Sidhu

[2019] VCC 1327

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01443

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASHANPREET SIDHU

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2019
DATE OF SENTENCE:	9 August 2019
CASE MAY BE CITED AS:	DPP v Sidhu
MEDIUM NEUTRAL CITATION:	[2019] VCC 1327

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Recklessly causing injury; Aggravated burglary; Common assault; Criminal damage; Late plea; Complicity; Parity; Excellent prospects of rehabilitation.  

Legislation Cited:                   Sentencing Act 1991 (Vic)
Sentence:  30 month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr J. Jassar	Maganty Lawyers

HIS HONOUR: 

1Mr Sidhu, you have pleaded guilty to three charges of causing injury recklessly, one charge of aggravated burglary, three charges of common assault and three charges of criminal damage.  All of these charges arise out of an incident which occurred at 1.45 am on 28 November 2016.

2Before proceeding to sentence you, I think it is apposite to mention that on
22 March 2019, Charanpreet Brar and Gurvinder Sandhu pleaded guilty before me to what was a very similar indictment, reflecting charges arising from the same incident.

3On 8 April 2019, I sentenced those offenders to a four and three year Community Correction Order, respectively. At the time those pleas were heard, your matter was listed as a trial to commence on 6 May 2019.

4After the sentences for Brar and Sandhu were imposed, your matter resolved and you entered formal pleas to these charges on 6 May 2019.  The matter was thereafter listed for plea hearing before me today, being 9 August 2019 and it is in that way that you come before me after the matters of Brar and Sandhu were dealt with.

5Ms Hamill, who appeared for the prosecution both those matters and in this matter, tendered a Summary of Prosecution Opening which details your offending and which ultimately became Exhibit A on the plea.

6Briefly summarised, that offending involved you living at 1/5 Orchid Avenue, Dandenong North.  You had at this time just returned from India on
24 November 2016 and on the evening of 27 November 2016, you were drinking at that unit with Brar and others with whom you lived.  You were informed of an incident by Brar which had occurred some weeks beforehand where Brar. his partner and others had exchanged words with three males who had apparently been offensive towards the female staff of a restaurant that they had been attending.

7Later, the windows of Mr Brar's car were smashed, he believed, in retaliation for his run in with these males.  The matter was reported to police but despite a number of follow up requests, the investigation stalled.

8Mr Brar's frustration as to that state of affairs seems to have figured prominently in the discussion that occurred at your unit that night which were fuelled by a large amount of alcohol.  Ultimately, those events appear to have provided the impetus for this offending.  As Mr Jassar, who appeared on your behalf on this plea, readily acknowledged, that background in no sense provides any justification for the actions of either yourself or your co-offenders.  However, it is put forward in order to contextualise your offending and perhaps more relevantly to demonstrate that what followed was, in light of all the evidence personal to you, fairly to be regarded as being very much out of character.

9There were six victims in this matter.  They were Nanveet Singh, Gurbir Singh, Lovepreet Singh, Sukhjit Singh, Bakhsish Singh and Navneet Kaur.  At the time of the offending, all of those victims were living at 28 Kernot Crescent in Noble Park North.

10You, together with Brar, Sandhu, Jagpreet Singh, Navjeet Cheema and Gurpreet Brar travelled to an area about 500 metres or so from 28 Kernot Crescent. In summarising what followed, Ms Hamill stated:

‘At about 11:30pm on 27 November 2016, Gurbir, Nanveet and Sukhjit were at home. They heard some noises from outside the house and went to investigate. They discovered some of the windows of Lovepreet’s car, which was parked on the street out of the front of the house, had been smashed.

When Gurbir had arrived home an hour earlier, the windows had not been smashed. Nanveet called the Police and reported the damage to the car.

At about 1:45 the following morning (28 November 2016), the six victims were all at home asleep. They awoke to noises coming from the front of the house. Gurbir, Sukhjit, Bakhsish and Lovepreet went to the front yard, where they saw the offender and his co-accused. They were armed with a cricket bat, metal poles and pieces of wood. The offender was carrying a long metal pole. The offender and his co-accused yelled abuse and insults in the Punjabi language, such as, “we will fuck you up, we will fuck you all, your mothers, sisters, everyone”.

Upon seeing the men and hearing their insults, Gurbir, Sukhjit, Bakhsish and Lovepreet ran back towards the front door. Before Sukhjit was able to get inside, Sandhu struck him to the back of the head with a cricket bat. That caused Sukhjit to fall to the ground. As he got to his feet, Sandhu struck him again with the bat, this time to the side of the head. Sukhjit ran to the backyard of the house. He was very dizzy and felt pain in his head and ringing in his ears. A small haematoma was found on later examination (ch 1 RCI).

The offender went to strike Lovepreet with a metal pole, however, he was able to raise his arm to protect himself. He was struck on the hand which caused a moderate laceration over his ring finger, mild swelling and minor abrasions (ch 3 RCI).

Three of the offenders, including the offender, grabbed Gurbir and dragged him aside. They swung a bat and a metal rod at his head, however, he too was able to use his arm protect himself. He was struck on the arm causing two small grazes and swelling (ch 4 RCI). Cheema described the offender as standing at the door of the house and urging Brar and Sandhu to go, however he then “got crazy” and hit at two of the victims with the metal pole. The Crown says that Gurbir is the second of those victims.

Gurbir, Bakhsish and Lovepreet managed to get inside the house and close the door. Charanpreet Brar, Sandhu and at least one other of the co-accused followed them and pushed through the door, forcing their way into the house while Brar and Sandhu were carrying, respectively, a metal pole and cricket bat (ch 2 aggravated burglary). Once inside, they used their weapons to strike the victims and smash various items, including a laptop and speakers (ch 8 criminal damage).

Nanveet Singh had remained in the house when his housemates went outside to investigate. A short time later, he saw a number of people come through the front door. Charanpreet Brar entered Nanveet’s bedroom. There, he kicked and dragged Nanveet into the corner of the bedroom before pushing him into a speaker and hitting him in the stomach (ch 5 common law assault).

Navneet Kaur was terrified and had locked herself in her bedroom. Two of the offenders went to her bedroom and started to smash the door with their weapons. They asked her to open the door and, not surprisingly, she complied. They told her to go back to sleep and left. Navneet locked the door again and crawled under her bed because she was scared (ch 7 common law assault). From there, she heard yelling and smashing. Navneet also heard someone calling yelling, ‘Jashan, stop, Jashan, stop’. The Crown says that this refers to this offender.

After the offenders had entered the house, Bakhsish fled out the front as he was very scared. Brar approached him, grabbed his shirt and prepared to strike him with a metal pole (ch 6 common law assault). When Bakhsish said that he had not done anything, Brar left him and went back inside the house.

The offenders eventually ran out the front and smashed the windows of a Toyota Hiace bus (1GS5LX) and a Holden Astra (1GX4ET) that were parked in the driveway of the house (ch 9 and 10 criminal damage).

The Toyota Hiace belonged to Vikash Sharma and was used by Sukhjit in his employment. The Holden Astra belonged to Bakhsish.

The offenders then fled the scene running south along Kernot Crescent. They left some pieces of wood they had used as weapons on the front lawn of the house. Gurbir called 000.’

11At about 2 am that morning, after you had, together with the others, fled
28 Kernot Avenue, a police K-9 unit located you and your co-offenders in Halton Road, Noble Park North.  You were all standing around two cars, neither of which had their registration plates affixed.  You were all arrested and taken to police stations for the purposes of interview.

12As to you, Mr Sidhu, on arrest, it was noted that there was blood on the left leg of your jeans, the outside of your left shoe and sleeve of your jacket. 
Forensic analysis of the blood on the shoe showed that the blood was derived from the victim, Lovepreet.

13Later that day, when you were formally interviewed by police, you said, amongst other things, that you had been drunk and could not remember anything happening.  You said that you had been in the park where you were arrested for about four or five minutes before police arrived.  You denied any knowledge of the offending and you indicated that you were not surprised or concerned about the allegations that police were then making to you.

14Because of the nature of this incident, aside from that which was specified in the Summary of Prosecution Opening, the Crown were not in a position to say with precision which offender assaulted each of the victims and caused the property damage the subject of these charges.  The Crown case with respect to you was put either on the basis that you were a principal offender or at least complicit with one or more of the co-offenders in the commission of the offences to which you have pleaded guilty.  It is of some significance however to note that your plea to aggravated burglary, being the second charge on the Indictment, was on the basis of your complicity with your co-offenders and you having the accompanying requisite intention to assault.  The Crown was not in a position to prove that you had entered the house, that is stepped over the threshold of the front door yourself.

15Each of the victims of this matter were provided with an opportunity to detail the impact your offending has had on them, however they declined to take up that opportunity.  Nonetheless, I think it is fair to infer that each of those victims was likely to have been extremely fearful as to what could have happened to them during the time that you and your co-offenders attacked these people.

16Your plea of guilty to this matter is later than all of the other co-accused.  I was told that a partial explanation for that later plea was a dispute that needed to be litigated between you and the Crown to the effect that you maintained that you did not enter the house at the time of this incident.  Ultimately, after witnesses were cross-examined at committal, the Crown indicated that it was not in a position to prove beyond reasonable doubt that you had entered the house and the plea was thereafter made on the basis that you were complicit in the aggravated burglary but it was not suggested that you had actually entered.

17To some extent, that explains the late plea but as Ms Hamill explained during the course of discussion at the plea hearing, the explanation for the later plea to the other substantive charges is somewhat more nuanced, and because of those nuances, the plea should still be regarded as being late.

18I accept that that is so but I do not, in saying that, want to take away from the fact that the plea of guilty is nonetheless of significant value and will substantially reduce the sentence that would otherwise be imposed.

19I want to turn now to your personal circumstances.  You were born on
10 January 1992.  You were 24 years of age the time of the offending and you are now 27 years of age.  You have no prior convictions.

20You grew up in Muktsar in Punjab, India.  It is apparent that your parents had high expectations of you.  You were an only child.  Your father was a reasonably high ranking public servant.  Your mother has suffered from what appears to be chronic lung disease and medical material relied upon on the plea suggests that she has, or is feared to have, developed cancer.

21You completed Year 12 in India and obtained a bachelor degree in business administration, graduating in 2013.  In that year, you travelled to Australia to commence a Masters Degree in Business Administration at Charles Sturt University, which you completed and graduated on 11 November 2016.

22During your studies, you supported yourself by working at the Pizza Hut that had been owned by Mr Brar and also by taxi driving.  Since this incident, you have essentially worked as a concrete truck driver.  You have not been able to utilise your educational qualifications whilst this matter has remained outstanding.

23You are engaged to be married to a woman in India who lectures in botany at the University of India and that proposed marriage has been arranged by your parents with your consent.  Neither your parents nor your fiancée are aware of this offending.

24Seven personal references were tendered in support of your plea.  They were authored by former school friends, former work colleagues, a friend of your father and people who have met you since you have come to this country in 2013.  They confirm your otherwise good character, in particular your commitment to your family and your regret at having involved yourself in this offending.

25You were assessed by a psychologist, Ms Carla Ferrari, who provided a report of 1 August 2019.  She, in assessing you, found no evidence of any entrenched personality disorder, mania or psychosis.  She did find, however, that you presented with severe depression which she opined is likely to have commenced before your offending due to your mother's deteriorating health and your inability to support her whilst you needed to complete your studies.

26Ms Ferrari, in part, concludes her report as follows, at paragraph 105:

'On the basis of these factors, Mr Sidhu is considered a low risk of reoffending; he has no prior criminal history, there is no known history of violent behaviour, he does not usually abuse alcohol or substances, his psychosocial circumstances are stable, and he does not exhibit any personal, emotional or personality factors which would increase his risks of impulsivity, poor self-regulation, risk taking behaviour.  His peer group are responsible, prosocial individuals and it is unfortunate that under the effects of excessive alcohol they have all responded to a conflictual situation with another party in this manner, leading to their first interactions with the law.  He has a supportive peer group in Australia and is motivated to return to India briefly to marry his partner and support his mother through her operation, before returning to Australia to advance his career in business utilising his university qualifications.'

27Mr Jassar contended that you were less culpable than the principal offenders, Mr Brar and Mr Sandhu, and consistent with the principles of parity, it would be appropriate that you be placed on a Community Correction Order.

28He referred to various dispositions which had been given to the others involved in this incident.  Paragraph 31 of the summary of prosecution opening sets out the various dispositions for those co-offenders:

(a)  The charges against Navjeet Cheema were withdrawn on the basis of the “can say” statement he made in August 2017. He was cross examined by your representatives at committal;

(b)  Jagpreet (aka Jagdeep) Singh pleaded guilty to common law assault on the basis that he was in an agreement to go to the house to cause fear or harm to the victims. Summary jurisdiction was granted, and the court granted diversion;

(c)  Gurpreet Brar pleaded guilty to common law assault on the basis that he was in an agreement to go to the house to cause fear or harm to the victims, and that he took a cricket bat from the car for that purpose. Summary jurisdiction was granted, and he was fined $1500 without conviction;

(d)  Charanpreet Singh Brar and Gurvinder Singh Sandhu both pleaded guilty to aggravated burglary, assault and injury and criminal damage offences after their matters resolved at committal (but before evidence was called). They were each sentenced on 8 April 2019 to a Community Correction Order of 4 and 3 years’ duration respectively.

29Ms Hamill, on behalf of the Crown, acknowledged that though your plea was late, it was fair to characterise your role in the offending, whilst very serious, was somewhat less than that of Mr Brar and Mr Sandhu.  Your later plea of guilty therefore places you in a reasonably similar position once those countervailing considerations are taken into account.  She acknowledged therefore that the principle of parity applies.

30One point of distinction I have previously mentioned is the fact that the Crown are not in a position to show that you entered the house.  I am also conscious of the significant delay that has attended this matter generally, and as I said at paragraph 78 of my sentencing remarks in relation to Brar and Sandhu, that is a matter of some significance given that it must have weighed on you considerably in the two and a half years or so since this incident occurred.

31That said, your involvement in this offending is such that you played an important role in an incident that was calculated to instil terror in these victims.  In my view, that sort of conduct must be punished, it must be denounced and it must be deterred.

32Having considered the matter, and in particular your prospects for rehabilitation which I assess as being excellent, I am prepared to impose a disposition which involves you serving a Community Correction Order.

33Mr Sidhu, the first thing that you should understand is that I am prepared to place you on a Community Correction Order but there will be conditions with that Order and you need to understand what those conditions are, and if you agree to them, then you can sign the Order and undertake to complete the Order with those conditions.

34It is important though that you understand the conditions, so let me know if there is something that is not clear for you.

35OFFENDER:  Yep.

36HIS HONOUR:  The first thing is that you would be placed on a Community Correction Order in respect of all of these matters but that would be with conviction.  The second thing you must understand is that you would be required not to commit another offence whilst you are subject to this Order.  Now, if you did commit an offence, you would be brought back before me and you would be punished for breaching the Order, but you also would be at risk of being resentenced for the original charges and that is not a situation that you would want to be in because the reality is that you would be very likely facing a lengthy term of imprisonment if that occurred.

37You must also agree to receive visits from and report to the Office of Corrections.  You must report to them within two clear working days of when this Order starts.  You must let them know of where you are living and if you change your address and similarly your job, you need to tell them that.  You must not leave the State of Victoria without first getting permission to do so and you must obey all lawful instructions from the directions of the Office of Corrections.

38Mr Sidhu, I understand from the report and from some of the material that at some stage, you would like to go back to India.  That is understandable, but you cannot do that unless the Office of Corrections grants you permission to do so.  Do you understand that?

39OFFENDER:  Yes.

40HIS HONOUR:  Now, the conditions would be that the Order would run for a period of 30 months, that is two and a half years from today's date, until 8 February 2022.  During that time, you would be required to perform 250 hours of community work and I will order that 75 hours of treatment and rehabilitation that I order, if satisfactorily undertaken, can be counted as unpaid community work for the purposes of the community work condition.

41I will order further that you be under the supervision of the Office of Corrections for 30 months and further, that you must participate in programs and courses that address factors relating to the offending as directed by the regional manager of the Office of Corrections.  So that is the terms of the Order, Mr Sidhu and they are the conditions that you must comply with.

42As I have indicated to you, the implications of not complying with the Order are serious.  So it is something that you need to consider carefully before you agree to undertake the Order.  Do you follow all of that which I have explained to you now?

43OFFENDER:  Yes.

44HIS HONOUR:  All right.  Well, do you understand the effect of the conditions of this Order as I've set them out for you?

45OFFENDER:  Yep.

46HIS HONOUR:  Do you consent to undertaking the Order?

47OFFENDER:  Yes.

48HIS HONOUR: All right. One other matter that I have neglected and that is to make a declaration under section 6AAA of the Sentencing Act.

49MS HAMILL:  Yes, Your Honour.

50HIS HONOUR:  That declaration will be that but for Mr Sidhu's plea, he would have been sentenced to a term of imprisonment of two years and I would have fixed a non-parole period of 15 months.

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