DPP v Kumar
[2000] VSC 377
•21 September 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1496 of 1999
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUNESH KUMAR |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2000 | |
DATE OF SENTENCE: | 21 September 2000 | |
CASE MAY BE CITED AS: | DPP v Munesh Kumar | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 377 | |
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Criminal law - sentencing - murder - domestic killing - in face of unregistered, interstate Permanent Protection Order - Domestic Violence (Family Protection) Act 1989 (Queensland) - young offender - considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P.A. Coghlan QC with Ms C. Quinn | Office of Public Prosecutions |
| For the Accused | Mr M. Rush | Victoria Legal Aid |
HIS HONOUR:
Mr Kumar, you may remain seated.
You have been convicted by a jury of the murder, on Sunday 7 February 1999 at Thomastown, of Raj Mani. The deceased was born in Lautoka, Fiji on 24 May 1962. At the time of her death she was 36 years of age. You were born in Lautoka, Fiji on 28 September 1978. At the time you murdered her, you were 20 years of age. You are now one week short of 22 years of age.
The deceased Raj Mani was married in Fiji in 1982, had two children and was divorced in 1994. Siblings of hers had come to Australia and she did so after them in 1996, settling in Brisbane where she married for a second time in 1996. Her then husband was a supervisor at a bottle manufacturing plant, BevPak, in Goodna near Ipswich. She commenced working there as a machinist in August 1996. You commenced there also as a machinist in December 1996. Within six months, the two of you were living together.
You, with your family, had come to Australia in March of 1996 when you were 17 years of age. You and your family settled in Ipswich. You obtained local employment and then commenced, as I have said, at BevPak in December 1996.
There was an immediate attraction between you both. By April 1997 the deceased had left her husband and by June 1997 you and she were living together in a flat in Goodna. You both continued to work at BevPak, as did the deceased's estranged husband. Both families strongly disapproved of the relationship between you. Your family disapproved because you were young, had previously always lived at home, and were with a twice married woman 16 years your senior. Her family disapproved because she had left her caring husband for you, a much younger single man. Her family was soon to discover there were much darker reasons for disapproving of you.
It was apparent to everyone that you and she were strongly attracted to each other. That attraction continued throughout 1997. However another reality came to assert itself. The deceased left you in November 1997 and went to New South Wales. She told the production manager at BevPak where she could be contacted and for him not to tell you. You sought to ascertain her whereabouts through the production manager but, loyal to her requests, he would not inform you. She returned to you - a pattern which was to develop through 1998. But something else was developing through 1998 - the infliction of violence upon her by you. On 4 June 1998 local police attended at your flat in Goodna as a consequence of violence inflicted by you upon her. The police obtained a Temporary Protection Order against you under Domestic Violence (Family Protection) Act 1989 (Queensland). On 25 June 1998 the Ipswich Magistrates' Court issued a Permanent Protection Order against you under that Act, to operate for two years to 24 June 2000 in relation to the deceased. The Order did not prohibit contact or relations between you both. It did prohibit violence by you upon her. It also prohibited you from carrying a weapon for the duration of the Order. The notes attached to the Order state: "Information about weapons the respondent spouse possesses ... knife: believe to be carried on respondent person or in vehicle 669 CIL (sic)". At one point in 1998 the deceased had sought to have the Order removed but it remained fully in operation. You murdered her on 7 February 1999 during the continuance of a Protection Order made against you to protect her. I shall return to that matter.
On 2 July 1998 in the Ipswich Magistrates' Court, you pleaded guilty to a charge of unlawful assault (reduced from assault occasioning bodily harm) arising from the incident on 4 June 1998 and were convicted and fined $150. You had a clear warning, Mr Kumar, by the Court of your obligation not to be violent to the deceased and of the consequences of such violence. You ignored the warning.
In November 1997 the deceased had injured her hand at work and effectively was unable to work thereafter. You supported her by taking a second job.
The loving and the violence continued in 1998.
On 23 September 1998 the police again attended at your premises as the result of violence by you upon the deceased. You were issued with a Notice to Appear in relation to a breach of the Permanent Protection Order. That matter was adjourned on several occasions and ultimately was dealt with in the Ipswich Magistrates' Court on 3 February 1999. By that time the deceased was in Melbourne, to which I shall come. She did not wish to press the matter in any event. At the hearing in the Ipswich Magistrates' Court on 3 February 1999 you were represented by a solicitor. No evidence was proffered and the charge was dismissed. Four days later you murdered the deceased.
By late 1998 the deceased was no longer prepared to remain with you. She left the Brisbane premises and in order to be apart from you, moved to Melbourne. Here, she had relatives, in Thomastown, with whom she stayed for two weeks until she found her own premises - 2/38 Spring Street, Thomastown. Although she feared you she still loved you, and she made the mistake of sending you a loving pre-Christmas letter. Significantly, she did not state where she was. She put no address on the letter. But the envelope was postmarked Thomastown and that is how you found her.
You left your employment at BevPak without notice or explanation and drove to Melbourne. You searched the Thomastown area, found the deceased, and started following her. Witness after witness at the trial spoke of her fear of you. But she was still drawn to you. Occasional intercourse took place between you. However she was not prepared - not confident - to live alone with you again. She would not have you live with her at Spring Street.
In February 1999 you returned to Brisbane and collected your belongings. You also had other business to attend to. For as I have said, on 3 February 1999 at the Ipswich Magistrates' Court was the return of the breached Protection Order from the events of 23 September the previous year.
You arrived back in Melbourne on Saturday 6 February. Near Thomastown your vehicle was involved in an accident and was damaged. You parked it in Spring Street, away from the deceased's premises, and slept in it. On the morning of Sunday 7 February 1999 you walked to the deceased's premises. You arrived there at about 8.30 a.m. She would not let you in. In self-protection she rang Intergraph and asked for the police. Through the locked door you heard her ask for the police and you left. The police arrived at her premises at 8.50 a.m. You had at that time that morning uttered no threat of violence to her and it is apparent from listening to the Intergraph tape, Exhibit E before the jury, that the deceased had no expectation of what was about to follow.
The deceased was reassured by the presence of the police officers. They counselled her not to open the door if you returned but to call them immediately.
No-one was to know that you would not return via the door, but would shortly burst your way in through a large glass window by wielding a large metal pipe. Armed with a knife. In the circumstances as they then appeared, at 8.50 a.m. that Sunday morning, the police acted properly and responsibly. They also advised the deceased as to the process of law to obtain an intervention order in Victoria. The police left the premises at 9.00 a.m.
Having been rebuffed by the deceased, and knowing that she had sought police intervention, you decided to inflict the ultimate punishment upon her - to kill her. You blamed her for your predicament, as you always had, Mr Kumar, and as you still do. You went to a nearby factory site and obtained a large metal pipe in order to burst into the deceased's premises. You went to your car - the very car (Exhibit B photograph 100) in which you had been prohibited by the Court from carrying a knife - obtained a folding knife and opened it. You returned to the premises of the deceased. On the way you engaged in brief small talk with a passer-by, Mr Evans. Then, determined on murder, you walked up to the front of the deceased's premises, battered in the front loungeroom window with the metal pipe and immediately attacked her with your knife.
The evidence of a distinguished pathologist, Professor Cordner, who conducted the autopsy on the body of the deceased, tells the story. There were nine to twelve stab wounds to the body of the deceased: one to the abdomen and two to the chest, and six to ten to the neck, one of which penetrated the chest and another the lower part of the spinal canal. There were nine defence injuries to her hands and forearms. When you burst in, the deceased faced you - thus the wounds to her front and hands and forearms. Overcome, she turned away - thus the wounds to her back. In your attack you severely bent your knife, Exhibit J before the jury. Probably that occurred against a hard kitchen edge or object, as the deceased had no bony fractures from knife wounds. By this time the deceased was lying on her kitchen floor, motionless. Then, your knife no further use to you, you picked up a meat cleaver which was in the kitchen for culinary purposes and commenced chopping the head of the deceased. The Professor identified eleven chopping injuries to her head, face and neck. The close proximity of the chopping injuries to the head, and their parallel delineation (D.84 l.16-17), clearly establish that the deceased was on the floor, motionless, when you attacked her head with the meat cleaver. Your work done, you then left the deceased, and the weapons, on the floor. You exited through the front door, because you could open it from the inside.
Neighbours heard the terrified, brief screams of the deceased: "Help me, help me". Police were urgently summoned. The earlier police returned promptly. It was 9.45 a.m. They immediately saw the body of the deceased on her kitchen floor. Senior Constable Hill, of Epping Police Station, a brave officer whom I commend, sought to render aid to the deceased. But the deceased was grievously injured and died on the kitchen floor.
Professor Cordner at autopsy found that the chopping injuries had penetrated the skin and muscles of the face, divided the lower jawbone and penetrated the skull to damage the brain within the skull. The deceased would have died rapidly from the injuries you inflicted upon her (autopsy report, D.579 para.6).
After you left the premises, you walked to the next street and hid behind bushes. You changed your bloodstained pants. But there was no real chance of escape. Police backup had urgently been called for; police vehicles were in the area, as was a helicopter. A neighbour, Mr Rayson, saw you repeatedly hiding as vehicles went past, and when a police car came "screaming down the street and stopped" he directed the police to your bushes. You then came forward, pretending that you had been looking for the police.
You were arrested, interviewed, and charged with the murder of the deceased.
Your Homicide interview is full of half-truths and is notable for two characteristics. First, again, it was her fault. And second, it is utterly devoid of remorse for the deceased. So much so that at Questions 1609-1617 the investigating officer asked you whether you appreciated how serious was what you had done. The only moment of emotion in the interview was at Question 1859 when you briefly showed remorse for yourself. You promptly regained your composure. That was at 10.25 p.m. in an interview which commenced at 6.00 p.m. on Sunday 7 February 1999.
Your presence of mind before and after the killing is well demonstrated by your small talk to the neighbour, Mr Evans, on the way to kill the deceased (T.236 l.10), and after the killing by your adept accommodation to your imminent arrest by pretending to be seeking it (T.283 l.28). Your determination and perseverance in the act of killing are demonstrated by your abandonment of the knife once it was bent beyond use and your taking up and use of the meat cleaver.
The family of the deceased are afflicted by the loss of the deceased and by her terrible and premature death. I have regard to the very impressive Victim Impact Statement filed before me.
Mr Kumar, you are now just on 22 years of age. You are young but not immature. You come from a good family. They, too, are afflicted by what has occurred and by the future now before you. You are devoted to your family and have genuine remorse for your family's suffering.
You are intelligent and suffer no psychiatric illness or psychological disorder.
You have no prior convictions other than the unlawful assault conviction on 2 July 1998 that I have recited. You are not of course here to be punished for the violence you earlier had inflicted upon the deceased, and you are not. The only purpose in my stating the history of your relationship with the deceased is to provide the background to the crime of murder on 7 February 1999 for which you are to be sentenced. Plainly, that background stands in contrast to a blameless background which can be called in aid of mitigation of penalty. That mitigation does not apply in your case, but you are not punished for past events and are not before me for those events.
I have had the benefit of a most comprehensive plea on your behalf by your counsel, Mr Rush. I take into account the matters so eloquently urged by him on your behalf, including the geographical isolation from your family (who still reside in Brisbane) inherent in a sentence of imprisonment to be served by you in Victoria, and the unhappy fact that at 22 years "the best times of our life", as your counsel described them, are lost to you by imprisonment. You are presently under mainstream protection. I take into account that all your interests as a young man were channelled to the deceased and that, as the report of Mr Joblin, psychologist, of 10 August 2000 states, your immaturity bore upon your difficulty of resolution of your personal and emotional situation. However, as I pointed out to your counsel, it is one thing to be singular; it is quite a different thing to be violent. In particular I take into account your youth - both at the time of your relationship with the deceased, and now at the time of sentence. I also take your relative youth into account in directing a longer term of eligibility for parole than normally I would direct.
There are six exacerbating factors in this crime. First, it was the murder of a woman in her home - a grievous killing in a place supposedly of safety. Second, she had retreated there from you - indeed had retreated from Brisbane from you - and yet you entered her home, her place of safety, and killed her. Third, you killed her during the operation in Queensland of a formal Permanent Protection Order solemnly made by the Court for her physical protection from you. The legal circumstance that the Order was not registered in Victoria pursuant to s.18AA Crimes (Family Violence) Act 1987 is inept to lessen your moral culpability in killing her in the face of that Protection Order. Fourth, you killed the deceased in the face of constant Court reminders of your obligation not to inflict violence upon her - the last Court reminder being only four days before you killed her. Fifth, you formed and executed your intention to kill in the face of knowledge of the police being called by the deceased for her own protection. Sixth, your attack upon the deceased was one of extreme punitiveness, as the photographs - properly not placed before the jury - graphically show. Your conduct immediately before and after the crime shows your nimble presence of mind, and your actions in killing show your deliberation and your persistence.
You have no remorse for your crime. None. Your conduct after the event, your Homicide interview, my observations of you in Court and even the report of the psychologist tendered on your behalf on the plea all show your lack of remorse. You are of course not punished for that lack; but remorse as a harbinger of reformation cannot be called in aid on your behalf.
The five principles of sentencing - all grounded on the protection of the public - each have application to you. Condemnation: your conduct is to be condemned. Punishment: you are to be punished for your fatal conduct. General deterrence: it is necessary, yet again, to seek to deter men who are minded to resort to violence upon women in order to resolve their personal problems, by the imposition of substantial sentences of imprisonment. Special deterrence: it is necessary to seek to deter you from future recourse to violence as a means of resolving personal problems. Reformation: reformation is always an important aim, the more so with young offenders, and it applies to you aged 22.
You have served 593 days in pre-sentence detention. Pursuant to the provisions of s.18(4) Sentencing Act 1991 I declare that period of 593 days as already served under the sentence I impose and I so certify.
Mr Kumar, for the murder of Raj Mani I sentence you to 20 years' imprisonment. I direct that you serve a minimum term of 16 years' imprisonment before eligibility for parole.
Remove Mr Kumar.
Sine die.
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