Director of Public Prosecutions v Singh
[2024] VCC 1345
•29 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00593
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARPREET SINGH |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 July 2024 |
| DATE OF SENTENCE: | 26 & 29 August 2024 |
| CASE MAY BE CITED AS: | DPP v Singh |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1345 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Charges of intentionally causing serious injury and handling stolen goods – found guilty after trial – no criminal history – Verdins – lesser importance of general deterrence due to cognitive decline – deportation – delay.
Legislation Cited: Sentencing Act 1991 ss 5(1), 5(2) 5(2H)(c)(i), (ii), Migration Act 1958.
Cases Cited:R v Verdins (2007) 16 VR 269; Nash v R (2013) 40 VR 134; DPP v Bol [2024] VCC 515; DPP v Dennert [2024] VCC 578; Guden v R [2010] VSCA 196; Loftus v The Queen [2019] VSCA 24; DPP v Merryfull and Bloomfield [2023] VSCA 244.
Sentence:24 months’ imprisonment, non-parole period of 14 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr O. Cain | Balmer & Associates |
HIS HONOUR:
Introduction
1Mr Singh, I propose to sentence you to a total effective sentence of 24 months' imprisonment. I will set a non-parole period of 14 months' imprisonment and I will declare your 170 days of pre-sentence detention, excluding today, as time served under my sentences.
2After a trial, a jury found you guilty of two charges: intentionally causing serious injury; and handling stolen goods. The maximum penalties for these offences are 20 years and 15 years' imprisonment respectively. The former is a category 2 offence under the Sentencing Act 1991 and brings into consideration s 5(2H) of that Act. The latter charge is a minor offence in the circumstances of this case. The verdict of the jury on the first charge, and indeed on the second charge, indicates an acceptance of the evidence of the victim, Changkuoth Luak (Luak), and the second half of the evidence of Joyce Zuidam (Zuidam).
3The circumstances can be simply stated. On 29 April 2017, Zuidam went to a hotel in Dandenong. She met Luak, whom she had met the previous week. She told you he had sexually assaulted her previously and you intended to teach Luak a lesson. They left the hotel together and walked towards Luak's home. You were then Zuidam's partner. As they walked, you came from behind Luak and struck him to the head with a piece of wood. He fell to the ground and you struck him further times. He became unconscious. Your blows caused significant injuries.
4Before the assault, Luak's mobile phone had been lent to Zuidam, which you obtained from her.
5On 15 June 2017, you were arrested and interviewed. You said you acted in defence of yourself and Zuidam.
Victim impact statement
6Luak has not made an impact statement. The police are unable to contact him.
Criminal history
7At the time of you committing these offences, you had no previous findings of guilt or convictions, whether in Australia or in India.
Personal
8You were born in India and are the youngest of three children. Your parents remain together and live in India. Your father was a farmer, cultivating crops and running a poultry farm. Your father and uncle were violent alcoholics and were violent to you, your siblings and your mother. You lived in fear of your father. Your sister and brother moved to live with the extended family to avoid your father. Before you were 15, you were sexually abused by one of your uncle's workers on a farm.
9You remained living at the family home until you permanently migrated to Australia. You share a close relationship with your brother, who moved to Australia in about 2007. He is now an Australian citizen. You have regular contact with your family in India, including your sister.
10You went to a nearby school. You were a below average student due to your father's behaviour towards you. You had trouble with concentration. You were bullied in Grades 5 and 6 and physically assaulted in school.
11You completed high school and then attended University for two years, studying for a Bachelor of Arts degree. You were an average student. You ceased those studies and, in 2013, came to Australia on a student's visa. You started a course at Latrobe University but withdrew due to a lack of money. You then undertook and completed a six-month course in hospitality and cooking.
12After working at a car wash for a while, you gained a B‑double truck driver licence and then worked as a truck driver, travelling between Melbourne and Adelaide. In 2017, you came to Melbourne to work with your brother. You then worked as a truck jockey for a driver who had a Coca-Cola franchise in Mentone. In 2022, you worked as a truck and crane tyre fitter.
13Your first relationship was in 2016. It lasted only six months as your partner was an alcoholic. You met Zuidam in 2016, started a relationship and resided with her between Melbourne and Adelaide in 2016 and 2017. This relationship ended in late 2019 shortly after you and she were married. You have no children with her but she had a son from a previous relationship.
14You and your current wife have been in a relationship since 2020 and were married in 2021. You have a young daughter and your wife has two children from a previous relationship, aged six and 10. She is pregnant with your second child and is due to give birth on 26 September 2024.
15On 17 June 2024, your mother died. You were unable to see her before her death.
16As to substances, you tried alcohol at 17 but did not like it. In 2016, you started using methylamphetamine and used it for a month while you suffered depression. You have not used cannabis or any other drugs apart from methylamphetamine.
17About two years ago, you started using an anti-depressant medicine. In November 2023, you started treatment with a psychologist, Ms Mattia. You have continued seeing her or her colleague while in custody.
18In 2017, you were injured in a truck accident when you fell asleep at the wheel and the truck struck a tree. You were flown to a hospital in Adelaide, after receiving treatment at the Bordertown Hospital. You have no memory of the accident. Your nose and right knee were fractured. You were charged by the police and fined $1,000 and lost your licence for 10 months.
Psychologists
Healey
19Bernard Healey is a clinical psychologist. At the request of your solicitors, he interviewed you on 16 October 2019 and 7 March 2020 and, again, on 18 October 2021.
20Mr Healey found you were reasonably fluent in spoken English and comprehension. Since your verbal skills were somewhat limited, Mr Healey asked you to perform non-verbal tasks for the purposes of testing. He concluded you were functioning at an average level. Due to a concern of your then lawyer, Mr Crisp, your memory was tested. The four separate tests found your memory operated at a greatly reduced level of functioning. This was still the case when you were retested in October 2021.
21Mr Healey was concerned about the impact of the injuries you suffered in the motor vehicle accident in November 2017. He speculated you may have suffered a higher‑level cerebral impairment.
22Mr Healey diagnosed you as suffering from specific anxiety and depressive disorders at a significant level.
Mattia
23Alessia Mattia is a psychologist. Upon referral by your solicitors, you attended her, and her colleague, Ms Bovenkerk, for counselling sessions, starting in November 2023. By 2 July 2024, you had attended 13 sessions.
24On 5 February 2024, Ms Mattia administered three tests. She found you were in the severe range for anxiety and stress and the extremely severe range for depression. She also found you used drugs substantially over the previous
12 months.25Ms Mattia noted your slow progress with her treatment. Although teaching you coping strategies, you have not implemented them. She thought your memory problems had impacted your ability to practise these skills. With Ms Bovenkerk, there was also little progress because of your lack of punctuality and distraction while undergoing sessions while at work.
26With more counselling sessions, Ms Mattia gained more information about your life involving the physical and sexual abuse by your father and uncle. Leaving India for Australia was an escape for you.
27She discovered your fear of being attacked and your unwillingness to leave your home. You are determined not to expose your feelings. To do so would impede your desire to be a good father. Ms Mattia's attempts to overcome this belief has been impossible due to your imprisonment.
28You gave Ms Mattia inaccurate descriptions of the circumstances of the assault aspect of this proceeding. Ambiguously, she noted[1]:
“To date, he has taken responsibility for his violent behaviour, however has insisted this was to protect his ex‑partner and himself.”
[1] Report dated 10 July 2024 at [44].
29Despite your 'slow progress', Ms Mattia considered, if you continued with treatment, you are likely to obtain significant benefit from trauma-focussed therapy. It would increase your tolerance of distress and reduce your violent behaviour. You may need other help for your memory.
Jackson
30Martin Jackson is a clinical neuropsychologist. On 17 December 2021, he interviewed you at the request of your solicitors. The interview was conducted without an interpreter although Mr Jackson noted your basic English skills were quite poor, at Grade 4 level.
31Mr Jackson estimated your premorbid abilities as average. Your full-scale intelligence quotient was 81, which is in the low average range. Your verbal skills brought your rating down. Mr Jackson did not think your November 2017 motor vehicle accident affected your performance. However, he did recommend a MRI brain scan.
32There were areas of your performance where your performance was average or better than average. There were other areas where you were in the low average range and other areas where you were in the extremely low to borderline range.
33Mr Jackson could not say whether your current cognitive impairment was present at the time of your offending.
34Owing to the similarity of the 2020 and 2021 test results, Mr Jackson considered your cognitive impairment was stable and permanent.
35As at December 2021, Mr Jackson considered your cognitive impairment meant:
(a) you take almost twice as long as the average person to complete tasks, even basic tasks;
(b) you would be exceedingly slow and would make multiple mistakes in doing two things at the same time;
(c) you require structure and lots of repetition to learn at a reasonable level;
(d) following a short delay, you have forgotten almost half of what you have learned; and
(e) cues and prompts are of little value to you.
36Your impairment does not affect your ability to understand the wrongfulness of your actions. You are able to think clearly, make calm reasoned decisions and appropriate judgments although this was assessed in the structured environment of the office. There is no causal connection between the impairment and your offending.
37Because of your cognitive impairment, you are likely to find imprisonment more difficult than a person without your impairment. Potentially, these impairments will anger fellow prisoners and prison staff.
38Owing to your background of depression, Mr Jackson considered imprisonment would have a significant adverse effect on your mental health. However, he recommended an assessment by a forensic psychologist for a 'more in-depth assessment and opinion'.
39Pausing there, those two last paragraphs of the opinion of Mr Jackson do support limbs 5 and 6 set out in the case of R v Verdins[2].
[2] (2007) 16 VR 269.
40From the perspective of neuropsychologist, Mr Jackson thought the likelihood of you re-offending was low because your executive skills are intact. Any form of what he called 'talking therapy' should be done in your native language and paying due regard to your impairment.
41Mr Jackson found no significant remorse. He recommended a MRI scan to determine whether there is an organic cause for your impairment.
Brewer
42Warrick Brewer is a clinical neuropsychologist. On 30 April 2024, he interviewed you at the request of your solicitors. He also spoke to your brother and wife.
43As a result of tests, Dr Brewer estimated your full-scale intelligence quotient was 55 to 63. This placed you in the impaired range or, as he put it, the '0.3rd percentile rank'. This was significantly below your expected intelligence quotient based on your educational history. It is also significantly below what he calls your estimated premorbid intelligence quotient. That is, before the effects of your head injury, anxiety and substance abuse. Your reading age was at the level of a 10-and-a-half-year-old person.
44Dr Brewer noted, among other things:
(a) your longstanding dependency on methylamphetamine;
(b) your undergoing psychological counselling since 2023 and a programme run by the Salvation Army at Fulham Prison;
(c) your employment as a truck driver with your brother;
(d) the injuries received in the November 2017 motor vehicle accident including amnesia;
45He diagnosed:
(a) a mild acquired brain injury. Dr Brewer did not see the medical records made following the motor vehicle accident. He noted various sources saying you lost consciousness for 'some' hours after the accident. He noted: 'MRI brain reflected organic compromise, albeit very mild'. Earlier in his report, Dr Brewer noted recent MRI scans revealed no post-traumatic sequelae and no acute intracranial findings. If his diagnosis of an ABI is based on imaging, then there is no support;
(b) a functional intellectual disability/neurocognitive disorder. These were marked impairments across faculties including processing speed, verbal comprehension and reasoning, visuo-spatial processing and working memory. To Dr Brewer, these are an exaggerated suite of vulnerabilities to those found by Mr Jackson. Compared to your estimated pre-morbid capacities, your current state represents a significant reduction. Although meeting the criteria for a functional intellectual disability, Dr Brewer noted, without evaluating, factors including emotional distress and untreated trauma;
(c) a post-traumatic stress disorder derived from repeated physical assaults and an episode of sexual assault. This disorder has not been treated;
(d) rejecting diagnoses of anti‑social personality or borderline personality disorders, Dr Brewer described your personality in terms of immaturity, developmental lag or the arresting of your development. The consequences are significant in terms of the impact on your abilities. They are listed on p 20 of Dr Brewer's report;
(e) anxiety and depression. The latter involves a history of suicidal ideation and attempts; and
(f) based on a history, which Dr Brewer considered are notoriously unreliable, he would not diagnose an amphetamine type stimulant use disorder unless he received confirmation through urine or blood tests.
46Dr Brewer could not say whether your intellectual impairment influenced this offending. Nor could he say your methylamphetamine use was a factor.
47The decline in your cognitive functioning between the assessment of
Mr Jackson in 2022 and Dr Brewer's assessment in 2024 justifies the latter's diagnosis of a neurocognitive disorder. He attributes this decline to psychological/psychosomatic factors although he could not rule out an acquired brain injury or your methylamphetamine use.48Dr Brewer considered you would be more vulnerable in prison than your more intellectually intact co-prisoners because of your limited intellectual faculties. He considered imprisonment would worsen your anxiety and increase the risk of depression even though you are medicated for it.
49Again, just pausing there, those considerations also do support at least limb 5, and to an extent, limb 6 of Verdins.
50Although not using any psychometric tests, Dr Brewer considered you are a mild-moderate risk of re-offending.
51For treatment, Dr Brewer recommended a clinical psychologist, experienced in providing evidence-based treatment for Post Traumatic Stress Disorder, personality vulnerabilities and addiction. The treatment would be long lasting and intensive, at least, initially.
52In the short-term, your ability to cease using substances is poor although that will not be the case in prison. In the longer term, he considered the effective approach on establishing and reinforcing a structured and proactive response to a key unmet need of trusting, open, validating and insight-driven attachment. Presumably, that could be provided by your wife and family if given the opportunity.
References
53You rely on references from your wife, persons you have worked for and with, have had business dealings with, your wife's sister-in-law, a friend of your wife and your friends. Generally, they paint a picture of a person who functions at a level greater than that described by the neuropsychologists. For example, David McGregor saw you as diligent, organised, hardworking, willing to listen and learn, with a desire to improve your skills and competency and taking direction and feedback. You were viewed by him as a valued member of his team.
54The references speak of your other attributes, which I daresay are unaffected by your cognitive impairment. Your love of your family, your friendliness and generosity to others.
55With your wife, you and she have been married since March 2021. She knows your actions have caused you overwhelming guilt, regret, anxiety, stress, sadness and remorse over the years. Although your absence causes her hardship through caring for three children on her own and being pregnant, I cannot consider the hardship to your family as a mitigating factor. However, your family's predicaments weighs heavily on you.
Discussion
56Section 5(1) of the Sentencing Act sets out the purposes of sentencing and s5(2) sets out factors which I must consider where they are relevant to a particular case. Each of the sentencing purposes is engaged in your case.
57Usually, general deterrence is an important sentencing purpose for the offence of intentionally causing serious injury. However, you are in cognitive decline. This is witnessed by the assessments between 2020 and 2024. Whatever the cause or causes, you have declined significantly over the last four years, leaving you in the condition described by Dr Brewer. Coupled with your immature personality and psychological condition means it is unlikely many potential offenders would identify with you such that they would be deterred by my sentences from committing offences of the same or similar character to the offence in Charge 1. Paradoxically, general deterrence is of lesser importance in your case.
58On the other hand, those factors require sentences which deter you from committing offences of the same or a similar character. It is imperative you are deterred from such behaviour for the protection of the community. Your deficits, both cognitive and psychological, would not restrict you from being deterred by punishment.
59I will discuss the question of rehabilitation later.
Nature and gravity of the offences
60In Nash v R[3], Maxwell P set out factors in the assessment of the gravity of the offence of intentionally causing serious injury:
(a) Your proven intent – whether to cause serious injury, really serious injury or the maximum possible injury;
(b) The seriousness of the injury caused (both immediate and the long-term consequences for the victim);
(c) How vulnerable the victim was;
(d) Whether a weapon was used;
(e) The duration of the attack on the victim; and
(f) Whether you acted alone or in company.
[3] (2013) 40 VR 134 at [10].
61Of the three categories set out in (a), I consider you intended to inflict serious injury as opposed to really serious injury or the maximum possible injury. This is inferred from the general evidence of multiple blows and the areas and nature of the injuries identified by the forensic physician, Dr Schreiber.
62From the hospital records, Dr Schreiber noted fractures to the right side of the skull, of a bone in the left forearm, of a metacarpal bone of the right hand and fractures of two bones in the lower part of the right leg. There was also an injury to the right side of the brain causing bleeding and the collection of blood.
63Luak was admitted to the intensive care unit at a hospital. He required intubation to maintain his breathing. A nasal gastric tube was inserted to give him nutrition.
64At hospital, Luak was treated:
(a) by emergency specialist surgery with a nail inserted in the shin bone (tibia);
(b) the wound or wounds were washed and dressed. A plaster slab or cast was applied to the lower left leg;
(c) there were metal fixtures inserted in the left forearm to stabilise the bone fragments;
(d) a K wire was inserted into the hand fracture and stitches were inserted into the hand lacerations; and
(e) the wound to the left knee was cleaned. The margins of the wound were made more adaptable and the wound was closed.
65In his evidence, Luak spoke briefly about his injuries. He was in hospital for about a month. He has a scar on his head and a plate inserted into his arm. There is, as I have said, no victim impact statement. I cannot say whether there are any long-term consequences of these injuries for Luak.
66Luak was clearly vulnerable. He was attacked with a weapon from behind. The attack was swift and brutal. It was not an attack in the company of others even though Zuidam lured Luak to the place where the attack occurred.
67The charge of handling stolen goods contains a minor example of the offence.
Current sentencing practices
68Counsel for the Director referred to two sentences in this Court for the offence of intentionally causing serious injury[4]. He described the sentences as 'bookends' because of the vast difference in the sentences. I would not view either sentence as representing the high or the low for sentences of this offence.
[4] DPP v Bol [2024] VCC 515 and DPP v Dennert [2024] VCC 578.
Prospects of rehabilitation
69You are married. Your wife strongly supports you. You have a young child and another is expected shortly. You have a strong background in employment. Several of your referees speak of their pleasant interactions with you from a business perspective. You have sought psychological counselling. Although progress has been slow, the psychologist remains hopeful. Overall, your prospects of rehabilitation are good.
Deportation
70Carina Ford is your immigration lawyer. You currently hold a Bridging Visa C and have applied for a partner visa based on your marriage and family.
71In her letter[5], Ms Ford sets out the relevant provisions of the Migration Act 1958. What may happen depends, in part, on the length of the term of imprisonment imposed. For you, an important point is whether the sentence of imprisonment is more or less than 12 months. If your bridging visa is cancelled and you are deported, you will be permanently barred from submitting a further visa application to travel back to Australia.
[5] 23 July 2024.
72In Guden v R[6], the Court rejected the proposition the prospect of deportation was irrelevant to sentencing. It identified the two bases upon which the prospect is relevant:
(a) the offender will serve the term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk[7]; and
(b) in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia[8].
[6] [2010] VSCA 196.
[7] At [27].
[8] At [27].
73In Loftus’[9] case, the Court analysed the relevant provisions of the Migration Act:
(a) Loftus was not an Australian citizen. His ability to remain in Australia depended on holding a visa under the Migration Act 1958.
(b) Section 501 enables the Minister to cancel a visa on character grounds.
(c) Section 501(2) allows the Minister to cancel a visa if the Minister reasonably suspects the person does not pass the character test and the person does not satisfy the Minister that he or she passes that test.
(d) Section 501(6) sets out the circumstances in which a person does not pass the character test. These include a person having a substantial criminal record. That expression includes a person sentenced to death, life imprisonment or a term of imprisonment of 12 months or more or where a person has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.
(e) If a person does not pass the character test under ss501(7)(a), (b) or (c), the discretion to cancel is converted into a duty on the Minister to cancel if satisfied of that circumstance. A sentence of 12 months or more means the Minister must cancel the visa. If sentenced to two or more terms, the Minister retains a discretion to cancel.
(f) If the visa is mandatorily cancelled, the Minister has the discretion to revoke the cancellation: s501CA(4).
[9]Loftus v The Queen [2019] VSCA 24.
74Irrespective of the sentences I will impose, the prospect of deportation arises. Plainly, both bases of Guden apply. First, my sentence will expose you to the prospect of deportation. Given the life you have created in this country, the burden of imprisonment will be greater than for someone who does not face that risk. Second, if deported, you will lose for ever the opportunity of settling in this country. What that may mean for your family I cannot say. If they remain in Australia, you will lose physical contact unless they travel overseas to meet you. Otherwise, they will need to travel to India to live with you.
Delay
75Since your offending occurred in 2017, delay assumes a significance in sentencing you. How I deal with delay was explained by the Court in DPP v Merryfull and Bloomfield[10]:
“It is beyond doubt that significant delay between the time an offender is charged and ultimately sentenced can be a powerful mitigating factor. There are two limbs to the consideration of such delay: unfairness and rehabilitation. In the absence of a prosecution concession as to their applicability, an offender seeking to rely on either or both limbs will be expected to adduce some evidence to support them. A sentencing judge is not obliged to make separate reference to each limb, but reference to only one may give rise to a question as to whether the other received any weight in the sentencing synthesis.
The unfairness limb concerns the anxiety caused by a charge hanging over an accused’s head. A report by a psychologist may satisfy the evidentiary requirement but ‘[t]here will also be cases where, depending on the duration, cause and other circumstances of the delay, a court may readily accept the delay caused anxiety to the offender without the need for supporting evidence.
The rehabilitation limb concerns whether, during the period of delay, an accused made progress towards rehabilitation. There are two aspects to this limb: remorse and reform. The first requires evidence of acceptance of responsibility for the offending, acknowledgment of its wrongfulness and expression of contrition. The second requires evidence of the steps an offender has taken to reform. Such evidence might include obtaining counselling or other professional assistance, refraining from committing any further offences and contributions made to the community. Both remorse and reform must be demonstrated for a sentencing judge to give full weight to the limb. ‘Less than full weight will be accorded where reliance is placed merely on abstinence from further offending.’”
[10] [2023] VSCA 244 at [44] – [46].
76Some of the delay is attributable to your behaviour. There was an earlier trial. On 3 July 2023, it was aborted following an allegation you sought to persuade Luak to change his version of events. You have been charged with attempting to pervert the course of justice. On 25 August 2024, you pleaded guilty to this charge. Your actions delayed your trial for about eight months. Apart from that, the remaining period has been extraordinarily long.
77As to the issue of 'fairness', in his report dated 18 October 2021, Mr Healy noted your ongoing stress and anxiety over this case. He noted your complaint of tension headaches, presumably related to your stress and anxiety[11]. In his earlier report (7 March 2020), there was no mention of your stress or anxiety.
[11] At p 2.
78In Mr Jackson's report, he noted you felt depressed and just wanting to cry because of your uncertainty about the outcome of this case.
79As to the rehabilitation limb, there is no evidence of remorse or your acceptance of responsibility for the offending or acknowledgment of the wrongfulness of your acts and any expression of contrition.
80As to the second limb of the rehabilitation limb, there is the counselling you have received from Ms Mattia.
81Overall, the delay remains for you a very significant mitigating factor.
S 5(2H)
82Your counsel has clarified this morning that no reliance is placed upon s 5(2H)(c)(i) and (ii) of the Sentencing Act. That is a very fair concession made by your counsel.
Sentence
83On Charge 1, the charge of intentionally causing serious injury, I sentence you to 24 months' imprisonment.
84On charge 2, a charge of handling stolen goods, I sentence you to 14 days' imprisonment.
85The sentences will be served concurrently. The total effective sentence is
24 months' imprisonment. I will set a non-parole period of 14 months' imprisonment.86I declare your 170 days of pre-sentence detention (excluding today) as time served under my sentences today.
Forfeiture
87I will make the forfeiture order in the terms sought.
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