Director of Public Prosecutions v Singh
[2020] VCC 700
•8 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-01223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GURPREET SINGH |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3-6, 10-13 February (Trial), 8 May 2020 (Plea) | |
DATE OF SENTENCE: | 8 May 2020 | |
CASE MAY BE CITED AS: | DPP v Singh | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 700 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Thorp | Office of Public Prosecutions |
| For the Accused | Mr J. Rattray | Allan McMonnies Barristers and Solicitors |
HER HONOUR:
1 Gurpreet Singh, you come to be sentenced for one charge of recklessly cause serious injury to Lakhwinder Singh, having been found guilty of that charge by a jury on 13 February of this year.
2 According to Lakhwinder Singh, the two of you became close friends in 2002 when you attended college together in India. You came to Australia together in 2007, each wanting to make a life here. You lived in the same houses for many years. He lent you money, he says $23,000, you say $21,300 for the deposit on a house. You had repaid $8,000. On 14 October 2017, the night you attacked Lakhwinder Singh, the balance (whether $15,000 or $13,700) was still outstanding and overdue.
3
It was common ground at trial that Lakhwinder Singh had, in October 2016, agreed to give you a further 12 months to repay the balance. By 13 October 2017, you had not paid and Lakhwinder Singh was chasing you for payment. He asked a mutual friend, Janek Raj, to ask you to contact him about repayment. According to Lakhwinder Singh, he received a number of threatening and abusive phone calls from you and Janek Raj in the evening of
14 October before you arrived, unexpected by him, at Eastern Beach in Geelong, where he had gone after work to socialise with some friends and work colleagues. According to you, you had gone to Eastern Beach at Lakhwinder Singh's invitation to resolve the question of the amount still outstanding and to offer to pay the agreed balance, plus interest, in a few months' time.
4 You arrived at Eastern Beach at about 10.30pm. You and Janek Raj got out of the car, leaving the driver, said also to have been a mutual friend of you and Lakhwinder Singh, in the car. Within a very short time, generally estimated to be about a minute, the two of you returned to the car and were driven off. You had sustained a significant injury to your mouth and had several broken teeth. Lakhwinder Singh had sustained a life-threatening head injury, a broken elbow, a broken hand and was bleeding profusely from lacerations at the site of the skull and elbow fractures.
5 It was the prosecution case that you had gone to Eastern Beach, armed with weapons variously described as a rod, hammer, a bar or a knife, that you attacked Lakhwinder Singh, striking him several times to the head, face, arm and hand and that in the course of the attack, Lakhwinder Singh had grabbed your weapon (later determined to be a wheel brace) and struck you once, causing the facial injuries that you sustained. It was also the prosecution case that Janek Raj participated in the attack, striking Lakhwinder Singh to the head, shoulders and back from behind, at the same time as you were attacking him from the front.
6 You and Janek Raj were charged with intentionally cause serious injury in circumstances of gross violence and the cascading lesser statutory alternatives to that. On 13 February 2020, a jury found you guilty of one of those lesser statutory alternatives, recklessly cause serious injury. It found Janek Raj not guilty of all charges.
7 At the commencement of your plea, your counsel Mr Rattray submitted that the proper interpretation of the jury verdicts was that you had acted in excessive self-defence and should be sentenced accordingly. The prosecution did not agree that that was the correct basis for sentencing.
8 I have already delivered a ruling on the factual basis on which I proceed to sentence and annexe that to these reasons for sentence. I adopt what I there said and will not repeat the detailed analysis of the evidence and my findings as to the basis of the jury verdicts.
9 Suffice it to say, I proceed for sentencing purposes on the basis the jury must have been satisfied beyond reasonable doubt that you struck Lakhwinder Singh with one or more weapons, causing or contributing to the admittedly serious injury sustained by him and that, at the time you struck him, you were aware that you would probably cause or contribute to the serious injury sustained by him. The jury must have also been satisfied beyond reasonable doubt that, at the time, you were not acting in self-defence, that is that you did not reasonably believe that it was necessary to strike Lakhwinder Singh to defend yourself, or that your conduct in striking Lakhwinder Singh was not a reasonable response to defend yourself against the threat that you perceived he posed to you.
10 In your evidence at trial, you asserted that Lakhwinder Singh was the original aggressor and had struck you first with the wheelbrace. You had managed to disarm him and had then had ‘blacked’ or ‘blanked out', and, on coming to, found yourself standing alone on the foreshore with the wheelbrace still in your hand and had immediately returned to the car and been driven away. That evidence is incompatible with the jury’s affirmative level of satisfaction (beyond reasonable doubt) that you were aware of the probable consequences of striking Lakhwinder Singh as you did, namely that he would suffer serious injury. In other words, to give the guilty verdict meaning, I must proceed on the basis that the jury was satisfied that you were aware of what you were doing and its probable consequences, namely that your conduct would probably cause him serious injury. In my view, for the reasons detailed in my ruling, the jury must have rejected your account that Lakhwinder Singh was the original aggressor.
11 I proceed therefore, for sentencing purposes, on the basis that you were armed with at least a wheelbrace when you left the car and approached Lakhwinder Singh. That you struck Lakhwinder Singh to the head with the wheelbrace with such force as to cause a deep laceration and a depressed fracture of the skull at the site of impact. That you swung a second blow to his head, which he managed to deflect, taking the blow on his hand, which he had lifted to protect his face and head. The force of that blow was sufficient to break his hand below the little finger. Lakhwinder Singh then wrested the wheelbrace from you and swung it at you, causing the injuries to your mouth and teeth. You then struck at him with a weapon a third time with such force as to break his elbow and cause a deep laceration to the skin above the break, as he held his arm defensively across his torso.
12 The evidence of Lakhwinder Singh was that you produced a knife after he had disarmed you of the wheelbrace and it was that which caused the injury to his elbow. The medical evidence, which was incomplete and imprecise on this issue, was that the break to the elbow and laceration to the skin above it was more likely caused by blunt force trauma than a slash with a bladed weapon. You denied having any weapon, other than the wheelbrace which, on your account, you had taken from Lakhwinder Singh. Save to say, consistently with the evidence and the jury verdict, I am satisfied the elbow injuries were caused by a blow with a weapon of such weight and wielded with such force as to fracture the elbow and cause the laceration to the skin over the bone. I am not able to make a finding as to what that weapon was. It is not necessary for sentencing purposes to do so.
13 I proceed also on the basis of the uncontested evidence at trial that you then ran away, leaving Lakhwinder Singh still holding the wheelbrace he had wrested from you, bleeding profusely and returned to Werribee with your companions, where you sought medical and dental treatment for you injuries. And that, at no stage that night or later, when the police came to interview you, did you make any inquiries about Lakhwinder Singh or express any concern for his welfare.
14 Lakhwinder Singh's injuries were very serious. Life threatening. He was transferred from Geelong Hospital to the trauma unit at the Alfred Hospital because of his parlous state and the extent of his injuries. A police officer was tasked with taking a statement from him as, still conscious, he was awaiting transfer to the Alfred in case, as she said, it was needed as a dying declaration at a murder trial.
15 The Alfred records reveal Lakhwinder Singh sustained a depressed skull fracture with extradural hematoma (that is, bleeding in the extradural cavity of the skull), a 7cm laceration to his head over the fracture, an open left elbow fracture (that is, a laceration over the broken bone probably caused by blunt trauma) and a fracture to, or below his right little finger. He required surgery to elevate and repair the skull fracture, that is to remove the broken bone fragments, remove the pressure on the brain caused by the depressed fracture, wash out the extradural hematoma and insert three metal plates and six screws into his skull in place of the bone which had been smashed. He received 11 stitches to his head. He is likely to have these plates and screws in his head for the rest of his life. He also needed surgery including, again, the use of a plate and pins (since removed) to fix his broken elbow and debride the wound. The elbow and the hand were then immobilised in casts to allow the broken bones to heal.
16 Fortunately for him, the prompt medical attention meant the dire prognosis did not materialise. Fortunately for you, you did not find yourself facing a murder charge. Lakhwinder Singh has made a good, but not complete, physical recovery. He can no longer straighten his arm or lift heavy objects. He suffers headaches, anxiety and loss of his sense of safety and trust.
17 His Victim Impact Statement makes clear the effect these injuries have had on him. He describes feeling betrayed by the attack as you had been close friends since 2002 and had studied together whilst in India and lived together in Australia. He recounts have difficulty sleeping and having flashbacks of the attack in his dreams. He attends twice-weekly counselling sessions with a psychologist and takes sleeping pills to address these issues. Although he has returned to work, he has not regained full mobility and is unlikely to. He continues to take medication for his headaches and the pain.
18 This is serious offending. Recklessly cause serious injury is an offence punishable by a maximum of 15 years' imprisonment. That you were acquitted of more serious charges, carrying even greater maximum terms of imprisonment, does not lessen the objective seriousness of the offending of which you were convicted.
19 Features marking the seriousness include the following. The use of a wheelbrace as a weapon against an unarmed victim who was taken by surprise, striking your victim to the head with the wheelbrace and with such force as to cause the depressed fracture of the skull and lacerate the skin above the bone, that is, striking to a part of the body where, given the weapon used and the force of the blow, it was probable that serious injury would result. Striking another blow as the unarmed victim put his hands up to defend himself. And striking a third blow even as the victim defended himself, continuing to use such force as to cause the elbow injury, which itself is an injury which would count as a serious injury for the purposes of the Crimes Act 1958 (Vic). That this was done apparently in order to intimidate him, a friend of many years, into not pursuing you for repayment of the moneys you owed him, also adds to the seriousness of the offence. Although you do not come to be sentenced for causing serious injury in circumstances of gross violence, that is, on the basis you went to Eastern Beach armed, intending to use a weapon to cause serious injury to Lakhwinder Singh and did so, there was nonetheless a level of premeditation or planning. On the jury verdict, you were armed with the wheelbrace when you got out of the car and immediately attacked Lakhwinder Singh, striking him in circumstances where you were aware you would probably cause him serious injury, then ran back to the car and were driven off.
20 The nature and severity of the injuries are also relevant to the assessment of the seriousness of the offending. Although Lakhwinder Singh has made a good, one might even say remarkable physical recovery from that near-death experience, and the lasting physical effects are by no means of life-altering severity, a blow to the head with a rod-type weapon causing that life threatening injury and the lacerations to the head and elbow causing significant blood loss are, in my view, to be regarded as serious injuries of a high degree.
21 The factors I have identified as marking the seriousness of the offending also point to your moral culpability being high.
22 This was, as Lakhwinder Singh and eyewitnesses described, a ferocious and terrifying attack. It was brazen, carried out on someone known to you, in a public place, with a number of other people present. All of them spoke at trial of their shock at the suddenness of it, as well as the ferocity and brought about by no more than Lakhwinder Singh chasing you to repay to him money he had lent you and which you had used to secure the deposit on a house. That is, building up an asset to your benefit.
23 It is clear that, subject to considerations personal to you, denunciation deterrence and just punishment must carry considerable weight.
24 What then are the matters personal to you?
25 You are now 36 and have no previous convictions. You are married, the father of two young children and had been, until your remand following conviction, the major contributor to the family income. Since your arrival in Australia in 2007, you have been continuously engaged, initially in study and then in employment. A significant bundle of testimonials attest to the regard with which you are held by your wife, your friends, work colleagues and your whole community.
26 All these are indicators of a stable and contributing life and a capacity to sustain relationships and work. All this points to you being, apart from this, a person entitled to rely on and have counted in your favour, past good character and good prospects for rehabilitation.
27 You have no history of substance abuse, psychological or psychiatric disorder which was connected to your offending or would indicate you were a danger to yourself or others or put you at risk of further offending. There is nothing from that perspective to mitigate your moral culpability or reduce your prospects for rehabilitation.
28 This is your first time in custody and it coincides with the COVID-19 pandemic. I take into account both the hardship associated with a man, previously of good character and of mature years, experiencing custody for the first time and in such circumstances. I accept that the lockdowns associated with the pandemic, the fear of an outbreak in prison and the fear of becoming infected because you cannot make the choices that people at liberty can as to how best isolate to protect yourself and others, is an additional hardship associated with imprisonment which operates to reduce the sentence otherwise appropriate.
29 It was put the injuries you sustained should be taken into account as extra-curial punishment. I disagree. You were the instigator, the aggressor, and the injuries you sustained occurred as your victim, who was unarmed, sought to disarm you and protect himself and as you continued to attack him. Complaining of the consequences of being hit with the very weapon you had brought to the scene and struck him with serves only to reinforce the seriousness of your attack and of this offence.
30 It was put you that were remorseful. I accept you are sorry for yourself and the plight you now find yourself in and sorry for the impact on your family. I will deal with that insofar as it relates to hardship shortly. I accept, based on your self-report to Mr Cummins, his diagnosis of you as suffering from an adjustment disorder. It is clear from his report that that is as a direct result of being confronted with the consequences of conviction. It was not suggested, wisely, that the fifth limb in Verdins[1] was enlivened as a result and I do not consider the adjustment disorder to be a mitigator.
[1]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
31 Consistently with the observations in Barbaro and Zirilli,[2] I do not give weight to your expressions of remorse to Mr Cummins insofar as it relates to Lakhwinder Singh or, for that matter, his opinion you are remorseful for the harm you caused Lakhwinder Singh. You maintained, when speaking to Mr Cummins, the version of events you swore to at trial. On that basis, at best, you are expressing regret for injuring him in the course of defending yourself, a version of events the jury rejected.
[2]Barbaro v R; Zirilli v R [2010] VSCA 288.
32 Nor do I give weight to the opinions expressed in the testimonials as to your remorse in relation to Lakhwinder Singh, or for your conduct that night generally. The basis on which the writers of the testimonials formed their opinions that you were remorseful is not stated, but it would appear unlikely you have communicated directly with any of them since the jury verdict, as you have been in custody since then and, on the account you gave Mr Cummins and which was put on your behalf in the plea submissions, virtually incommunicado. The expressions of remorse attributed to you are inconsistent, that is in relation to Lakhwinder Singh, with the manner in which the trial was conducted and the evidence that you fled the scene and made no inquiries as to Lakhwinder Singh's welfare or expressed any concern about him when questioned by the police or at any later stage. This is not, however, to suggest you are being punished for conducting a trial. It was your right. But it makes your after-the-event professions of remorse for the injuries suffered by Lakhwinder Singh lack credibility. There is no evidence of the sort of conduct identified in Barbaro and Zirilli which might give substance, or a ring of genuineness, to your expressions of remorse so far as Lakhwinder Singh is concerned.
33 Having said that, I make it clear you are not to be punished for a lack of remorse. All these findings mean is that there is an absence of a feature which, if present, could add weight to the assessment of your prospects for rehabilitation.
34 But I have accepted your counsel's submissions that your prospects for rehabilitation are good,. I accept that your prospects for rehabilitation must be regarded as good, not only because your counsel submitted so but by reason of those matters personal to you which I have identified and take into account in your favour. It follows also from that, that I do not consider that specific deterrence is an issue requiring additional weight in the sentence.
35 You are not an Australian citizen. You and your wife obtained permanent resident visas in 2014 and your two children, who were born here, are Australian citizens. I am told it has long been your intention to apply for Australian citizenship and to make your life here.
36 Those plans are now in abeyance. By reason of s 501 of the Migration Act1958 (Cth), you are liable to deportation if sentenced to a term of imprisonment of 12 months or more. Although you have a right of appeal against the deportation order made under that provision, I cannot speculate as to the likely outcome of any appeal. What follows is that, if sentenced to a term of more than 12 months' imprisonment, you face deportation and an uncertain future for yourself and for your wife and children. If you are deported, you will suffer the loss of your hopes and plans for a life in Australia and you and your wife will have to face the agonising dilemma of whether she and the children will stay in Australia, able to see you only if they visit India, or give up their hopes too of a future here and return to India with you. Your children do not speak Punjabi and therefore would face the added burdens associated with having to learn a new language as they begin a new and unexpected life in India.
37 I accept this has caused you distress, as reported to Mr Cummins, and this is a real, not hypothetical, burden for you.
38 It was submitted on your behalf that this would impose a greater burden of imprisonment, by reason of the anxiety associated with the uncertainty as to your fate and the hardship to your family. It was put that, if you were deported (or, by reason of the imposition of a sentence of more than 12 months, liable to deportation unless successful on appeal), this would constitute exceptional hardship to your family.
39 The authorities are clear and I accept that the distress felt by you by reason of the uncertainty as to your fate is an added burden of imprisonment, not experienced by an Australian citizen or a foreign national without ties to Australia who might look forward to returning to their home country after serving a sentence. I accept, too, that the distress you feel by reason of the hardship occasioned to your wife and children is an added burden of imprisonment not experienced by those without families impacted by their wrongdoing.
40 I take into account the hardship caused to them, not only by their loss of the primary breadwinner whilst you are serving a term of imprisonment, but also because of their distress about their uncertain future and the possibility they will have to choose between staying here, without you, or accompanying you to India and losing their hopes of a future here.
41 These matters relating to the risk of deportation and the burden of imprisonment occasioned by it are properly matters to take into account in your favour and I do so.
42 However, I do not accept the defence submission that the combination of the impact on you of the risk of deportation or the hardship caused to your family by reason of that is exceptional and justifies the imposition of a sentence which would not trigger the automatic deportation order under s 501 of the Migration Act.
43 I do not consider the hardship to your family is properly characterised as exceptional. Sadly, all too often, wives and children are further victims of an offender’s wrongdoing and, where the offender is not an Australian citizen, they suffer the same burden that your wife and children face. It is no doubt heart-rending for them but it must be borne in mind that they have been put in this position by your conduct. You must have known it was a condition of your visa that you obey the law and that you would be liable to cancellation of your permanent residency visa and deportation if you broke the law to the extent that a term of imprisonment of more than 12 months was warranted. I was told your right to obtain permanent residency was hard fought. It should have been all the more apparent to you that you should not imperil your right to stay or obtain citizenship by acting as you did on this night. If anything, this adds to your moral culpability, because, in acting as you did, you are the direct cause of the misfortune occasioned to your family.
44 But more significantly, even taking into account the matters which operate to temper the weight to be given to denunciation, deterrence and just punishment, including the weight to be given to the hardship caused by the risk of deportation and the increased burden of imprisonment as a result, I have come to the very clear view that a sentence which would involve a term of imprisonment of less than 12 months, whether alone or in combination with a community correction order, is well outside the range of an appropriate sentence for this offence and that the matters personal to you and the hardship caused by reason of the risk of deportation is not sufficient to justify a reduction of sentence to something below 12 months.
45 It is, by reason of the matters I have identified as to the characterisation of its seriousness, a bad example of its type. The maximum sentence, one yardstick proper to take into account in assessing the seriousness of the offence, is 15 years' imprisonment. Although the matters I have identified and found to operate in your favour, reduce the sentence otherwise appropriate, you do not have youthful impulsivity, the benefit of a guilty plea reduction or a condition which reduces your moral culpability to add to those mitigatory matters properly able to be taken into account.
46 I have been assisted by the wealth of material filed, including the Sentencing Advisory Council paper on deportation and its sentencing snapshot for recklessly cause serious injury, as well as the cases relied on as comparable cases or statements of principle in relation to hardship and deportation and the submissions based on them. Of course, each case turns on its own facts and circumstances. The snapshot provides guidance as to range and the cases help identify the principles to be applied to the facts and circumstances before me. Apart from noting that, in some cases of recklessly cause serious injury, a non-custodial sentence was imposed, sentences of less than 12 months have been imposed and sentences well in excess of 12 months' imprisonment have been imposed, the snapshot provides no guidance as to the facts and circumstances of individual cases which informed the exercise of the sentencing discretion in any particular case. Ultimately, the instinctive synthesis is a matter of judgment as to what, taking into account all matters I can and must take into account, the just sentence is. That is what I have endeavoured to do.
Orders
47 Gurpreet Singh, I am about to sentence you. I do not require you to stand.
48 Gurpreet Singh, on the charge of which the jury found you guilty, recklessly cause serious injury, you are convicted and are sentenced to be imprisoned for a period of six years and six months. I fix the period of three years and six months as the time that you must serve before being eligible for parole. I declare that you have spent 85 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
49 I make the forfeiture orders sought.
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ANNEXURE
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted (Not) Suitable for Publication |
CR-19-01223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GURPREET SINGH |
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JUDGE: | HER HONOUR JUDGE HAMPEL |
WHERE HELD: | Geelong |
DATE OF HEARING: | 5 March 2020 |
DATE OF RULING: | 15 April 2020 |
RULING
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Thorp | Office of Public Prosecutions |
| For the Accused | Mr J. Rattray | Allan McMonnies Barristers and Solicitors |
HER HONOUR:
1 On 14 October 2017, Lakhwinder Singh and some friends met at the foreshore of Eastern Beach, Geelong, after work. Not long after, Gurpreet Singh arrived there in a car with two other men. He and one of the other men, Janek Raj, got out of the car. Within a very short time (generally estimated to be about a minute), Gurpreet Singh and Janek Raj returned to the car and were driven off. In that interval, Gurpreet Singh had sustained a significant injury to his mouth and several broken teeth. Lakhwinder Singh had been struck to the head, hand and arm, suffering life-threatening injuries.
2 It was the prosecution case that Gurpreet Singh and Janek Raj had gone to the Eastern Beach foreshore, armed with weapons variously described as a rod, hammer, bar or knife and attacked Lakhwinder Singh with them, striking him several times to the head, face, arm and hand. In the course of the attack, Lakhwinder Singh had grabbed Gurpreet Singh’s weapon (later determined to be a wheel brace) and struck him once, causing the facial injuries that he sustained. It was also the prosecution case that Janek Raj participated in the attack, striking Lakhwinder Singh to the head, shoulders and back from behind at the same time that Gurpreet Singh was attacking him from the front.
3 Gurpreet Singh and Janek Raj were charged with intentionally causing serious injury in circumstances of gross violence and a cascading list of statutory alternatives. On 13 February 2020, a jury found Gurpreet Singh guilty of one of those lesser statutory alternatives, recklessly cause serious injury. It found Janek Raj not guilty of all charges.
4 At the commencement of the plea, Gurpreet Singh’s counsel, Mr Rattray, submitted that the proper interpretation of the jury verdicts was that Gurpreet Singh had acted in excessive self-defence and should be sentenced on that basis. The prosecution did not agree that that was the correct basis for sentencing. This then requires a more detailed analysis of the evidence that might otherwise be the case for sentencing purposes.
5 As Mr Rattray had foreshadowed an adjournment of the plea in order for a psychological assessment to be conducted, I heard submissions on the factual basis for sentencing and indicated I would rule on that before the plea resumed.
6 The victim, Lakhwinder Singh, gave evidence that Gurpreet Singh owed him money and he had been pursuing him for some time for payment. The day before the attack, Lakhwinder Singh had called Janek Raj, who was a mutual friend, and asked him to tell Gurpreet Singh to repay the money. Lakhwinder Singh said that the following day, from about 8:00pm, he had received a number of calls from Gurpreet Singh and Janek Raj, which were abusive and threatened him with immediate harm.
7 At about 10.00pm, Lakhwinder Singh had, by arrangement, gone to Eastern Beach with a work colleague at the end of their shift. Some other acquaintances were also there. He was standing on the foreshore, a little distance away from the others, when a car, driven by Baljinder Singh, pulled into the car park and stopped in the roadway with the engine running. Gurpreet Singh got out of the front passenger seat and Janek Raj from the rear, each carrying rod-like weapons in their hands. He said the two of then came straight to him and immediately began to hit him. He said Gurpreet Singh hit him first, very suddenly and hard to the head with the rod. He could feel, but not see, Janek Raj hitting him from behind to the back of his head and upper body. He put his arms up to protect his face and Gurpreet Singh swung the bar again, but his hand took the impact. He said he managed to grab the rod from Gurpreet Singh and swing it in his direction, hitting him to the side of the face. He then saw Gurpreet Singh produce a knife from down the front of his pants and aim at his belly. He moved his arm to protect his torso from the knife and his elbow took the brunt of the blow. Lakhwinder Singh ran away but Gurpreet Singh and Janek Raj followed him, then ran back to their car.
8 Lakhwinder Singh was left holding the weapon he had grabbed from Gurpreet Singh in his hand. He went back towards his friends. He was holding his arm, which was bleeding badly, across his body. His head was also bleeding. His friends drove him to Geelong hospital, which was only a few blocks away. On the way to the hospital, he threw the rod out of the car window. As arrangements were being made to transfer him to the Alfred hospital to treat his head injury, he identified his assailants and (he believes) told police he had thrown the weapon out of the car. It was later retrieved by police and found to be a wheel brace.
9 In cross-examination, it was put to Lakhwinder Singh by Gurpreet Singh’s counsel, in effect, that he had lured Gurpreet Singh to the beach and ambushed him. It was put that he, not Gurpreet Singh, had armed himself in advance with a wheel brace and had struck the first blow, inflicting the facial injuries Gurpreet Singh sustained. He denied that. It was then put to Lakhwinder Singh:
After [you] assaulted my client knocking several his teeth out of his mouth my client took the wheel brace from you and hit you he estimates twice --- No
Once injuring your head [and] hand, and once injuring your arm --- no [he hit me] first when they came after that I grabbed from him
10 Counsel for the co-accused, Janek Raj, put to Lakhwinder Singh that, when Gurpreet Singh got out of the car, Lakhwinder Singh had chased Gurpreet Singh onto the sand. He also put that Lakhwinder Singh struck both Gurpreet Singh and Janek Raj to the head with the wheel brace. Lakhwinder Singh denied these suggestions.
11 Three of the men who were at the beach with Lakhwinder Singh gave evidence. Each of them said they had seen the car pull up in the carpark and two men emerge, whilst the driver stayed in the car. They all said the car was stopped in the roadway with the ignition running. That is, it had not pulled into one the parking bays which ran at right angles to the kerb along the foreshore.
12 The first of the three to give evidence, Harpreet Singh, said the two men (that is Gurpreet Singh and Janek Raj) got out of the car as soon as it had stopped, went straight to Lakhwinder Singh and immediately began hitting him. He said both men had weapons, one a rod-type object, the other something he thought may have been a sharp knife or a machete because it reflected light. He saw Lawkinder Singh put his arms up to defend himself. He said Lakhwinder Singh probably pushed them. He said he did not see Lakhwinder Singh strike either of them. He said he did not see the wheel brace that Lakhwinder Singh had said he was still holding at the end of the attack but was aware that he had thrown something out the window of the car as he drove him to hospital.
13 The second of the three to testify, Piyush Dhingra, also said the two men went straight to Lakhwinder Singh and immediately began to hit him. He said one of the men (he did not know which) had a long rod in his hand and was striking Lakhwinder Singh with it. He said Lakhwinder Singh fell down, then got up and ran away. He too said he did not see Lakhwinder Singh strike either of the men and had not seen the wheel brace in his hand at the conclusion of the assault, before he was taken by Harpreet Singh to the hospital. In cross-examination, Piyush Dhingra agreed he had not seen all of the incident.
14 The third person to give evidence, Gagandeep Singh, said he was standing with some of the other men and Lakhwinder Singh was on his own a short distance away. When the men got out of the car, he saw that both of them had weapons. As they passed him and went towards Lakhwinder Singh, one of them said, ‘don’t worry brothers, we have to sort him out’. He immediately called 000. He said he had his back to where the men and Lakhwinder Singh were and did not see anyone strike anybody but could hear yelling and screaming. After the call, he turned back and saw the two assailants chasing Lakhwinder Singh. They then returned to their car. As they passed him, one of them said, ‘brothers we have a long story between us, so you guys don’t know anything’. Before they returned to the car, Gagandeep Singh said he spoke to the driver and said, ‘look this is not the right way what you guys are doing here, this is not the right way to do it’. He too said he did not see Lakhwinder Singh holding the wheel brace after the assailants had left. He was asked in cross-examination whether Lakhwinder Singh had a wheel brace in his hand before the men arrived. He said he did not see Lakhwinder Singh with a wheel brace at any stage.
15 Alan Kilby, another eyewitness, unconnected to Lakhwinder Singh or the group he had met up with at Eastern Beach or the accused and their driver, also witnessed part of the incident. He saw the car pull into the car park and a man getting out. He said he was holding something shiny like a hammer and started chasing another man. He then called 000 as he walked quickly away. He did not see any fighting before he left. He did not remember two men getting out of the car. He said the man with a hammer-like object had a beard and was not wearing a high-vis vest. There was other evidence which indicated Gurpreet Singh did not have a beard at the time and was wearing a high-vis vest.
16 On the day before the trial was due to commence, the driver of the car, Baljinder Singh, who had previously declined to provide a statement to the police, made a statement to Gurpreet Singh’s solicitors and through them indicated he was prepared to make a statement to the police and to give evidence. Police took a statement from him and he was ultimately called by the prosecution.
17 Baljinder Singh gave evidence he was asked by Gurpreet Singh to accompany him and Janek Raj to meet Lakhwinder Singh to discuss repayment of a debt owed by Gurpreet Singh to Lakhwinder Singh. He said he drove from Werribee to Geelong with Gurpreet Singh and Janek Raj. Once in Geelong, Janek Raj directed him to Eastern Beach. He said that, when he arrived, Gurpreet Singh and Janek Raj got out of the car and that he did not see or hear anything until they returned to the car about a minute later. He said he then drove back to Werribee and accompanied Gurpreet Singh to Werribee Hospital. He said he did not ask and was not told what had happened. He said he was not aware of either Gurpreet Singh or Janek Raj carrying weapons when they got out of the car. He said that Gurpreet Singh was holding some papers in his hand when he got out of the car. He believed they may have been bank documents relating to the amount of the debt outstanding because, when they had met up in Werribee before driving to Eastern Beach, Gurpreet Singh had shown him some bank statements and made reference to the statements showing a lesser amount owing than that claimed by Lakhwinder Singh.
18 Gurpreet Singh gave evidence at trial. He said that he had a phone call with Lakhwinder Singh earlier in the day of the attack and had told him he did not owe him as much money as he claimed. He said Lakhwinder Singh then asked him to show him the figures. Gurpreet Singh said he invited Baljinder Singh to accompany him to witness the exchange between himself and Lakhwinder Singh about how much was owing and when he would pay it.
19 He said that, when he arrived at the beach, he got out of the car, carrying the bank statements, and approached Lakhwinder Singh, who was standing with two other men. He held up the bank statement saying, ‘[Lakhwinder] look it’s not $21,300’. He said he was then surrounded by Lakhwinder Singh and two other men. Lakhwinder Singh then produced a wheel brace which had been concealed behind his back and tried to hit Gurpreet Singh. He said he ran towards the beach with Lakhwinder Singh and the other two men pursuing him. He said, as he ran away, he turned back and Lakhwinder Singh swung the wheel brace at him, striking him in the mouth and causing the injuries that he sustained.
20 He said he then blanked or blacked out and his next memory was that he was holding the wheel brace and Lakhwinder Singh and the two men were gone. He said he dropped the wheel brace, returned to Janek Raj and Baljinder Singh and asked them what had happened. He said Baljinder Singh said he could not see and Janek Raj said he did not know, but that he too had been hit. In cross-examination, Gurpreet Singh acknowledged that had struck Lakhwinder Singh, ‘maybe 2, 3 times’. He said he did that after he had disarmed Lakhwinder Singh and was aware he was unarmed. He said he had no choice but to strike him and no clear memories of what he did. That led to this exchange:
So you've no clear memories, but you accept that you hit him two or three times?---I can assume. And I admit, I had that thing, the wheel brace in my hand. So everyone blaming on me, so I can assume, like, maybe this happened.
21 It could fairly be said that Gurpreet Singh’s defence evolved as the trial progressed. It was put on his behalf to Lakhwinder Singh that he had struck Gurpreet Singh first and it was put specifically that he had then wrested the wheel brace from Lakhwinder Singh and struck him, on his estimate, twice. In evidence in chief, he professed to have blanked or blacked out and to have no memory of hitting Lakhwinder Singh. In cross-examination, he initially acknowledged hitting Lakhwinder Singh two or three times, before maintaining that he had blanked or blacked out and could only assume he had struck him.
22 It was not put on Gurpreet Singh’s behalf to any of the eyewitnesses that Lakhwinder Singh and two other men had surrounded him, that Lakhwinder Singh had struck Gurpreet Singh first, that he had been left holding the wheel brace after the attack concluded or that he had dropped it before going back to re-join Janek Raj and Baljinder Singh. It was not put to Lakhwinder Singh or any eyewitness that Gurpreet Singh approached him holding papers and said ‘[Lakhwinder] look it’s not $21,300’. It was not put, on Gurpreet Singh’s behalf, to any witness, that Gurpreet Singh was holding papers and not a wheel brace or other rod-like weapon.
23 Although it had not been suggested to any witness in cross-examination by counsel for Gurpreet Singh that he was holding papers when he got out of the car at Eastern Beach, counsel for Janek Raj, the co-accused, had put this to some, but not all, of the witnesses. All those who were asked about it rejected the suggestion there was paper and not a rod-like weapon being held by Gurpreet Singh when he emerged from the car. To Lakhwinder Singh, it was suggested that either Gurpreet Singh or Janek Raj, ‘more likely Gurpreet Singh’, had papers in his hand when he first approached him.
24 To Alan Kilby, the independent eyewitness, counsel for Janek Raj suggested that the man he had described as holding the hammer-like object and chasing another man was in fact holding a piece of paper. I note this does not sit comfortably with the argument advanced on Gurpreet Singh’s behalf, that the man described by Mr Kilby could not have been Gurpreet Singh as he did not fit the description of clothing or facial hair Mr Kilby had given of the assailant. Nor does it sit comfortably with the alternative suggestion put on behalf of Gurpreet Singh in relation to Mr Kilby’s evidence, namely that Gurpreet Singh was the one being chased.
25 Gagandeep Singh, the last of the eyewitnesses who had been at Eastern Beach with Lakhwinder Singh when the car arrived and who turned his back to make the 000 call, was asked by counsel for Janek Raj whether one of the men might have been carrying some paper. No questions were asked by him of Harpreet Singh or Piyush Dhingra (the first two eyewitnesses called) about whether Gurpreet Singh or Janek Raj was holding some paper, not a weapon, when Gurpreet Singh got out of the car. This too reflects what I have described as the evolving defence relating to misidentification of bank documents as a wheel brace or rod type weapon.
26 It is against this evidence that Mr Rattray submits that the proper factual basis for sentencing Gurpreet Singh, consistent with the jury’s verdict, is excessive self-defence. He submitted that, by the acquittals of the charges of intentionally or recklessly causing serious injury in circumstances of gross violence, the jury had rejected the evidence of Lakhwinder Singh and his companions on the foreshore that Gurpreet Singh had been armed with a weapon at the time he left the car and approached Lakhwinder Singh on the beach. He submitted that Gurpreet Singh could not have been the man described by the independent eyewitness, Alan Kilby, as carrying the hammer-like object, as he did not fit the description of a man with a beard and was not wearing a hi-vis vest. He submitted that I should accept Gurpreet Singh’s evidence and that of Baljinder Singh that he was not armed with a weapon when he got out of the car and approached Lakhwinder Singh.
27 Whilst there were differences in detail given by Lakhwinder Singh and the four eyewitnesses, on all their accounts, the men who emerged from the car (or man, in the case of Mr Kilby) were the aggressors, came straight from the car to Lakhwinder Singh and at least one of them was armed with a rod type object. All gave evidence that they were frightened and shocked by the suddenness and ferocity of the attack. So much so that Mr Kilby and Gagandeep Singh, without seeing any blows struck, both immediately called 000, when they saw the armed men/man emerge from the car. Although it was suggested that the eyewitnesses, other than Mr Kilby, were ‘in the camp’ of Lakhwinder Singh and had tailored their evidence accordingly, it is noteworthy that none had the opportunity to collaborate before their statements were taken.
28 By contrast, I found Baljinder Singh to be an unconvincing witness. I do not accept Mr Rattray’s characterisation of him as independent. On his own account, he remained in the car when Gurpreet Singh and Janek Raj got out, although it would appear his role was supposed to be that of a witness to the discussion about the amount owed and the terms of repayment. He immediately drove off when they returned about a minute later. His account that he saw and heard nothing in that time, was not told anything when they returned to the car and was so incurious he did not ask what had happened to cause Gurpreet Singh’s facial injuries beggars belief. How he then came to appreciate that Gurpreet Singh had injuries which required medical attention and drive him to the Werribee Hospital for treatment (rather than the nearby Geelong Hospital) was unexplained. I approach with caution anything he said not supported by independent evidence and which is in conflict with other evidence when determining the sentencing facts consistently with the verdicts.
29 The jury findings of not guilty on the gross violence charges mean that the jury was not satisfied beyond reasonable doubt of the circumstances of gross violence identified in the charge, namely that Gurpreet Singh had an offensive weapon or weapons on him when he got out of the car and intended to use it or them to cause serious injury to Lakhwinder Singh. I reject Mr Rattray’s submission that what inevitably follows from the acquittal on the gross violence charges is that the jury was satisfied beyond reasonable doubt that Gurpreet Singh was not armed with a weapon at the time he left the car. The acquittal on the gross violence charges simply means the jury was not satisfied that Gurpreet Singh went to Eastern Beach with a weapon or weapons, intending to use it or them to cause serious injury to Lakhwinder Singh.
30 The jury verdict of guilty on the recklessly cause serious injury charge mean the jury was satisfied beyond reasonable doubt that Gurpreet Singh struck Lakhwinder Singh with one or more weapons, causing or contributing to the serious injury sustained by him and that, at the time he struck him, he was aware that he would probably cause or contribute to the causing of serious injury to him. The jury must have also been satisfied beyond reasonable doubt that, at the time, Gurpreet Singh did not reasonably believe that it was necessary to strike or participate in the striking of Lakhwinder Singh to defend himself or that his conduct in striking or participating in the striking of Lakhwinder Singh was not a reasonable response to defend himself against the threat that he perceived Lakhwinder Singh posed to him.
31 I have here quoted from the questions, agreed to by Mr Rattray, which were provided to the jury in the question trail, which set out the factual basis for the circumstances of gross violence relied upon for the charges of intentionally or recklessly causing serious injury in circumstances of gross violence and the factual basis for a finding of recklessly causing serious injury.
32 Unlike the gross violence charges, the charge of recklessly cause serious injury, of which the jury found him guilty, does not require pre-planning or the formation of the necessary state of mind at any time before engaging in the conduct resulting in the causing of serious injury. Gurpreet Singh’s account in evidence, that he blanked out or blacked out, is incompatible with an affirmative level of satisfaction (beyond reasonable doubt) that he was aware of the probable consequences of striking Lakhwinder Singh as he did. In other words, to give the guilty verdict meaning, I must proceed on the basis that the jury was satisfied that Gurpreet Singh was aware of what he was doing and its probable consequences.
33 It does not follow from the acquittals on the gross violence charges that the jury was satisfied beyond reasonable doubt that Gurpreet Singh was unarmed when he left the car. It is consistent with those acquittals and the guilty verdict on recklessly cause serious injury that he was armed, as the witnesses other than he and Baljinder Singh said he was when he got out of the car, but that the jury was not satisfied beyond reasonable doubt that he went to the beach intending to cause serious injury to Lakhwinder Singh with his weapon/s. The time at which the relevant state of mind for the recklessly cause injury charge is necessary to be established is at the time of the conduct which causes the serious injury, that is, at the time of striking the blows with the wheel brace.
34 It follows from Gurpreet Singh’s evidence that he blanked or blacked out during the period that, on his account, Lakhwinder Singh must have sustained the injuries he did, that there was no affirmative evidence from him as to his state of mind, namely that he perceived that it was necessary to do what he did to defend himself. That the jury did not consider that Gurpreet Singh had a reasonable belief that it was necessary to strike Lakhwinder Singh, not only relies on a rejection of his evidence that he blanked or blacked out, but also, in my view, seriously undermines his evidence that Lakhwinder Singh was the initial aggressor. No argument was advanced as to a rational basis for a finding, on the evidence, that Gurpreet Singh believed it was necessary to strike Lakhwinder Sings two or three times with a wheel brace once Lakhwinder Singh had been disarmed.
35 Excessive self-defence, based on an unreasonable belief in necessity, is inconsistent with the findings as I have set them out, which must have informed the verdicts.
36 Dealing then with the second limb of self-defence and the evidentiary basis for the jury’s finding that Gurpreet Singh’s conduct was not a reasonable response to defend himself against the threat he perceived Lakhwinder Singh posed. If the jury had accepted (that is, in onus terms, not rejected) Gurpreet Singh’s account that Lakhwinder Singh was the initial aggressor and that the injuries Lakhwinder Singh suffered must have been inflicted by Gurpreet Singh after he himself had been struck, then it is difficult to see how the jury could have found his response was an unreasonable one to the threat he faced. Certainly, Mr Rattray did not identify any basis on which it would be open to find his response to the threat posed on his account of events was not reasonable and could be characterised as excessive self-defence.
37 In my view, the jury rejection of the second limb of self-defence can only be explained by its rejection of Gurpreet Singh’s account that Lakhwinder Singh was the initial aggressor.
38 In my view, the jury verdicts do not leave open as a rational sentencing fact that Lakhwinder Singh was the initial aggressor, that is, that he met Gurpreet Singh armed with a wheel brace and struck the first blow. Neither do the verdicts leave open, as rational sentencing facts, either that Gurpreet Singh believed, but not reasonably, that it was necessary to strike Lakhwinder Singh as he did to defend himself or that he was defending himself against a threat which he perceived Lakhwinder Singh posed to him but his response was not reasonable.
39 I reject the submission that it is open and proper to sentence on the basis of “excessive self defence”.
40 It follows, in my view, that the verdicts reflect the jury proceeding on the basis that Gurpreet Singh was, as Lakhwinder Singh and the three men on the beach with him said he was, armed with a weapon or weapons when he left the car and approached Lakhwinder Singh. Although it is not open to sentence on the basis Gurpreet Singh intended, when he got out of the car, to use his weapon/s to cause serious injury to Lakhwinder Singh, the verdict reflects a finding that, at the time he struck Lakhwinder Singh, Gurpreet Singh was aware he would probably cause serious injury to him. There is, in my view, no alternative or more favourable view of the evidence, consistent with the jury verdicts, on which to proceed to sentence.
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