R v Aujla

[2012] VSC 503

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0146 of 2011
No. 0147 of 2011

THE QUEEN

v

SIMARPAL AUJLA
AMANDEEP SINGH

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2012
DATE OF SENTENCE:	22 October 2012
CASE MAY BE CITED AS:	R v Aujla & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 503

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CRIMINAL LAW – Sentence – Two offenders each convicted of one charge of aggravated burglary, one charge of intentionally causing serious injury and one charge of intentionally causing injury – Very serious offending – First offender sentenced to 8 years 6 months imprisonment with a minimum non-parole period of 5 years 8 months – Second offender subordinate, acted at direction of first offender – Second offender sentenced to 5 years 9 months with a minimum non-parole period of 3 years 10 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose SC Ms R. Sharp	Office of Public Prosecutions
For Simarpal Aujla For Amandeep Singh	Mr C. Thomson Mr P. Matthews	Dr Marich Legal Criminal Law Specialists Emma Turnbull Criminal Lawyers

HIS HONOUR:

1. Simarpal Aujla and Amandeep Singh, you have each been convicted of one charge of aggravated burglary, one charge of causing serious injury intentionally to Parmjit Singh and one charge of causing injury intentionally to Navjot Kaur. 

1. The genesis of the offending lies in the breakdown of your marriage, Mr Aujla.  Your wife is the cousin of Parmjit Singh, the male victim.  You believed that Parmjit Singh encouraged your wife to leave you and to obtain an intervention order against you.  You formed a deep dislike for him and developed a plan to break into his house and seriously assault him.  You recruited your employee Amandeep Singh to assist in implementing your plan.  As indicated to counsel, I shall not act upon the basis that the plan was any more extensive than to inflict assaults upon the adult occupants of the house at Centre Road, Narre Warren North.  For clarity, I state that I will not be proceeding on the factual basis that the objective of the plan was to kidnap Parmjit Singh and hold him to ransom.  The jury could not reach a verdict on the conspiracy to kidnap charge and the Crown have determined not to pursue that charge at a further trial.  In those circumstances Mr Rose SC, who prosecuted, very properly informed me that the Crown do not seek that you be sentenced on that factual basis, and as I have indicated, I will not be doing so. 

1. I consider that the offending required a considerable degree of premeditation.  You waited until Navjot Kaur’s brother had left for work at approximately 3am.  Both of you were disguised with balaclavas.  Both of you carried weapons – baton-type implements; one, at least, appeared custom-made with a rubber grip.  One of you carried tape, used to bind your victims.  You arrived in separate cars.  This was not an unpredictable eruption of spontaneous violence.  This was a carefully laid plan to break into this private house and then to beat the adult occupants with your batons.

1. At about 4.30am on 7 December 2010, both of you broke into the house by forcing the front door.  The crime of aggravated burglary was then complete.  You went straight to the main bedroom.  Both Parmjit Singh and Navjot Kaur were disturbed by your intrusion.  They were brutally beaten.  Parmjit Singh was struck to the head numerous times with sufficient force to occasion several deep scalp lacerations. 

1. Some measure of the ferocity of the attack upon Parmjit Singh can be obtained from the fact that his lacerations subsequently required over 70 stitches.  He also sustained deep bruising to the face, limbs and torso.  Navjot Kaur suffered bruising and abrasions and at least substantial soft tissue injuries (perhaps fractures) to her right thumb.  These latter injuries were almost certainly sustained whilst endeavouring to protect herself from a baton wielded by one of you.

1. After endeavouring to subdue your victims with your batons, you sought to bind them with duct tape and place towels over their heads.  I do not need victim impact statements to reach the conclusion that this experience must have been absolutely terrifying for both victims.  Terrified, no doubt, on their own behalves but also for the welfare of their two young children, also in the house.  Parmjit Singh managed to flee downstairs where he was beaten again.  He then managed to escape to a neighbour’s house.  He was covered in blood and distressed to the point of incoherence.  You both fled the scene in Mr Aujla’s Holden Statesman, leaving Mr Amandeep Singh’s van at a nearby park.

1. I am unable to ascribe any particular actions to either of you individually.  The jury verdicts compel the conclusion that you both agreed to carry out this criminal exercise and you did so.  I consider this to be very serious offending.  It was planned, vicious and calculated to terrify.  The physical injuries sustained by Mr Singh are not as grievous as are sometimes seen in these courts, but they are serious nonetheless.  The emotional harm to both victims will be much more enduring.

1. Mr Aujla, you have no prior convictions and are now 40 years of age.  Up until this incident, you have led an accomplished professional life.  Your family migrated from the Punjab region of India when you were very young.  You successfully completed your schooling at Westbourne Grammar and the first two years of an engineering degree at Melbourne University.  You deferred and subsequently abandoned your degree and obtained a pilot’s licence.  With friends, you operated a flying school for several years.  You tried your hand in sales and marketing and over several years did extremely well, becoming State Manager for a medium sized engineering company.  You returned to self-employment, establishing a home insulation business.  That business flourished during the Federal Government Home Insulation Subsidy Scheme, but withered when the scheme was abandoned in February 2010.  You then focused your business on the supply and installation of smoke alarms and were conducting this business when you were arrested.  Mr Amandeep Singh was one of your employees.

1. I am told that you served in the army reserve between 1992 and 1998.  You were recommended for officer training, which you completed at Duntroon.  You graduated as a second lieutenant and were subsequently promoted to full lieutenant.  You have been married twice, but both marriages have failed.  You have three boys from your second marriage, twins aged 7 and a 5 year old.  You have not seen them since your arrest.  I accept that your estrangement from your children will make any term of imprisonment I impose more burdensome.  I am unable to detect any remorse on your behalf, but given your lack of prior convictions and your professional accomplishments to date, I accept that your prospects for rehabilitation are good.  That conclusion is supported by a report from a forensic psychologist Mr McMullen that was tendered on your behalf.  You have above average intelligence, leadership skills and no evidence of mental disorder. 

1. Mr Singh, you are now 28 and one of three children.  Your parents still live in a village in the Punjab; both your older brothers are truck drivers and now reside in Canada.  You came to Australia in December 2008 on a dependent spouse visa.  Your then wife came to study graphics and printing.  You married in January 2008 and I am told that the marriage has failed.  You separated in April 2011, five months after your offending.  You have no other family in Australia.  Not long after your arrival here, you gained employment with Mr Aujla in his home insulation/smoke alarm business.  I accept that you looked up to Mr Aujla.  One witness described a god-like admiration you held for Mr Aujla.  I also accept that you had no independent motive for wanting to harm Parmjit Singh or his family.  You participated in this offending because your employer, a man you respected, asked you to.  It is apparent from the evidence led at trial that you were very much Mr Aujla’s subordinate in the combination.  As I have said, I am unable to ascribe individual responsibility for any particular actions during the offending period, however I accept that your moral culpability is considerably lower than Mr Aujla’s – you acted at his direction and for his purposes.  I shall reflect this distinction in the sentences that I impose.

1. I have received an affidavit from your brother Tejinder Singh Grewal.  I accept that your 55 year old father is currently quite unwell.  He suffers from insulin dependent diabetes which is apparently poorly managed.  Your mother does not drive and has assumed responsibility for caring for your elderly and infirm grandparents.  I accept that you were expected to return to India and contribute to the welfare of your family.  I am unable to consider the probable effect of any sentence upon your family unless I am satisfied that there is cogent evidence “of exceptional hardship…considerably more severe than normal for a family …”[1] where a member is in prison.  Mr Matthews, your counsel, did not urge me to find exceptional hardship in this sense, but did submit that your father’s illness together with other factors that I shall refer to shortly, combined to make your imprisonment significantly more burdensome than for other young men in your position. 

   [1]R v Matthews 130 FLR 230; Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105, [1]-[21]; Nguyen v R [2007] WASCA 72, [37]-[38].

1. Your English is limited, although in a voir dire I reached the view that you understand simple language and can make yourself understood.  I accept that you will be without any real external support during your time in custody.  You have no family here, and you have received little support from the local Indian/Punjabi community.  Given the nature of your offending, that is hardly surprising.  I am also told that there are very few Indian prisoners in the prison system.  Telephone calls to your family from prison are logistically and financially difficult.  I consider that the sentence I impose will be more burdensome because of your isolation from your family and friends, and because of the personal circumstances of your immediate family.  I will moderate both the head sentence and minimum sentence to reflect this.  I accept also that your prospects for rehabilitation are good.  At 28 you are still quite young and have no prior criminal history.  You have demonstrated a sound work ethic and a capacity, as yet unfulfilled, for tertiary study.  You have completed various courses whilst on remand.

1. I understand that you are currently on a criminal justice visa that will expire when you are released from prison.  I expect that you will be deported immediately upon your release.  I do not take this factor into account when setting a minimum term.[2]  I am unable to distil any remorse on your behalf.

   [2]R v Binder & anor [1990] VR 563.

1. Some years ago, Winneke P captured the essence of the crime of aggravated burglary.  Offences of this type ‘strike directly at the heart of people’s domestic security and their capacity to feel safe in their own homes’.[3]  By your actions Parmjit Singh, his wife Navjot Kaur and their children may never feel safe in their own home again.  The victim impact statements of the two adults assert a very understandable enduring insecurity. 

   [3]Director of Public Prosecutions v Jovicic (2001) 121 A Crim R 497, 507 (Winneke P).

1. The community has a legitimate expectation that those who intrude into private homes intending violence to the innocent occupants will be punished sternly.  That punishment must deter others from similar conduct and it must express the communities denunciation of the impugned conduct.

1. Both you, Mr Aujla, and you, Mr Singh, have been convicted of conduct that I consider exhibits a high degree of criminality.  It was pre-planned, it was vicious, it was cowardly and it demands a substantial term of imprisonment for both of you. 

1. Stand up please.

1. Mr Aujla, I sentence you as follows:

·     on charge 2, aggravated burglary, I sentence you to 6 years 6 months imprisonment; 

·     on charge 3, intentionally causing serious injury, I sentence you to 4 years imprisonment;

·     on charge 5, intentionally causing injury, I sentence you to 12 months imprisonment. 

I direct that the sentence imposed on charge 2 be the base sentence.  I further direct that 1 year of the sentence imposed on charge 3 be served cumulatively with the sentence imposed on charge 2 and 6 months of the sentence imposed on charge 5 be served cumulatively with the sentences imposed on charge 2 and charge 3.

That results in a total effective head sentence of 8 years imprisonment.  I direct that a minimum of 5 years 4 months be served before you become eligible for parole.  I declare that 251 days including today have been served by way of pre-sentence detention.

1. Mr Singh, I sentence you as follows:

·     on charge 2, aggravated burglary, I sentence you to 4 years 3 months imprisonment; 

·     on charge 3, intentionally causing serious injury, I sentence you to 2 years 6 months imprisonment;

·     on charge 5, intentionally causing injury, I sentence you to 8 months imprisonment. 

I direct that the sentence imposed on charge 2 be the base sentence.  I further direct that 8 months of the sentence imposed on charge 3 be served cumulatively with the sentence imposed on charge 2 and 4 months of the sentence imposed on charge 5 be served cumulatively with the sentences imposed on charge 2 and charge 3.

That results in a total effective head sentence of 5 years 3 months imprisonment.  I direct that a minimum of 3 years 6 months be served before you become eligible for parole.  I declare that 281 days including today have been served by way of pre-sentence detention.