R v Bali
[2001] VSC 70
•20 March 2001
SUPREME COURT OF VICTORIA Not Restricted CRIMINAL DIVISION
No. 1472 of 2000
THE QUEEN
Plaintiff
v
RAJ BALI
Defendant
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JUDGE:
Kellam J
WHERE HELD:
Melbourne
DATE OF HEARING:
26 February 2001
DATE OF SENTENCE:
20 March 2001
CASE MAY BE CITED AS:
The Queen v Bali
MEDIUM NEUTRAL CITATION:
[2001] VSC 70
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Criminal Law – sentence – manslaughter – unlawful and dangerous act – assault consisting of two punches to the head causing sub-dural haemorrhage
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APPEARANCES:
Counsel Solicitors For the Plaintiff
Mr J. McArdle QC Solicitor for Public Prosecutions
For the Defendant Mr D.L. Brustman Victoria Whitelaw HIS HONOUR:
1 You, Raj Bali, have pleaded guilty before me to one count of manslaughter. The crime of manslaughter has a maximum penalty of 20 years' imprisonment.
2 The events which resulted in the death of your victim, William Fitzgerald, who was also known as Robert Llewellin, took place in the evening of Cup Day 2 November 1999.
3 You commenced to consume alcohol in the early afternoon of that day at your residence, a boarding house in Moonee Ponds. It is clear that you had consumed a considerable amount of alcohol by late afternoon when you received several phone calls from your friend Fitzgerald who invited you to his residence in Holgate Lane, Kensington.
4 You and an acquaintance, John Mills, then travelled to your victim's home by taxi, arriving at approximately 5 p.m. You, Mills and Fitzgerald then watched television and consumed alcohol until approximately 9 p.m. When an argument occurred between you and William Fitzgerald. It is apparent that by this time all three of you had consumed a very substantial amount of alcohol. In the course of that argument, you punched your victim in the head several times, as a result of which he bled profusely. You and Mills then left the premises.
5 Your victim, Fitzgerald, took himself to the house of a neighbour who then called both police and ambulance. Fitzgerald was then taken to the Western Hospital where he was admitted at approximately 10 p.m.
6 A full body examination conducted at the hospital at the time of admission revealed no injuries other than a large haematoma over the left eye with an overlying laceration. The results of this examination were confirmed by an examination conducted by a senior pathologist from the Victorian Institute of Forensic Medicine the next day.
7 Upon admission to hospital, Fitzgerald was at first observed to be conscious and in a stable condition. However, a sudden deterioration in his condition occurred some hours after his admission. Emergency intubation of your victim was undertaken and a CT scan was undertaken. This scan revealed a large acute subdural haemorrhage in the right middle cranial area of his brain. Surgical evacuation of this subdural haemorrhage was undertaken. However, sadly, following this procedure he made no substantial recovery. He died nearly a month later on 2 December 1999. He was aged 49 years.
8 There is no doubt that the death of William Fitzgerald was caused by complications of the head injury, including bronchopneumonia, as a result of your assault upon him. It is probable also that excessive alcohol consumption by Fitzgerald in the past rendered him more vulnerable to the development of subdural haemorrhage in the event of his suffering a head injury. Nevertheless, it was your unlawful and dangerous act in assaulting Fitzgerald which directly caused his death. It is clear that the assault upon Fitzgerald involved sufficient force to cause his head to be lacerated and to cause a subdural haemorrhage notwithstanding any underlying vulnerability.
9 The police at the Flemington Police Station interviewed you the day after the assault on 3 November 1999. You told police that shortly before the assault the deceased had placed his hand in your crutch and made what you regarded as a derogatory remark about the size of your penis. You told police that you punched your victim in the eye a couple of times and he then fell backward on to the couch. You told police that at the time of the argument your acquaintance, John Mills, was in the toilet but that he came out as you punched Fitzgerald a second time and that he, Mills, then stopped you from hitting Fitzgerald again. You told police that you did not tell Mills what had caused you to become angry with Fitzgerald as it was "too embarrassing".
10 Later on that same day when you were again interviewed by police, this time by the Homicide Squad, you provided more detail of the assault. You repeated your allegation that Fitzgerald had made what you interpreted as an inappropriate sexual advance to you. You said that you were seated when Fitzgerald came over and sat next to you. He rubbed your right thigh and groin, you said. You said you pushed his hand away. According to you he said, "Oh, after all, you've got a small dick anyway". You said that you got angry and stood up and hit him. At that time he was seated. He tried to stand up and you hit him again. You told police that the incident took place in a matter of seconds. You then left.
11 Your companion, John Mills, who was clearly intoxicated at the time of the assault, later told police that he knew something had happened between you and Fitzgerald and that he remembered you punching Fitzgerald three or four times to the head. To his recollection Fitzgerald ended up lying on the couch.
12 It is appropriate to note that your victim apparently gave a history to the hospital on admission that he had been hit and kicked in the chest in the course of the assault. There is no medical evidence to support this. Indeed, the medical evidence appears to me to be consistent with your statement that you struck Fitzgerald on the head in the same place with your right hand. I am satisfied beyond reasonable doubt that you struck Fitzgerald with your right fist on at least two occasions in the area of his left eye, but I am unable to be satisfied that any other assault occurred beyond this. Nevertheless, although I accept that Fitzgerald's conduct caused you offence, I do not accept that such conduct in any way justifies the violence you inflicted upon him. You could easily have left his residence, but instead you chose to inflict violence upon him by punching him to the head on at least two occasions. That violence led ultimately to his death.
13 In this context I am conscious of the pain and distress which you have caused, and which continues to be caused, to those who were close to Fitzgerald and which is reflected in the victim impact statement presented to the court.
14 The sentence imposed must express the commitment of this community to the principle of the sanctity of the life of each of those who live in it.
15 The death of Fitzgerald in such circumstances is a serious matter. Although your attack upon Fitzgerald was not premeditated and you did not positively intend to cause him grave harm, you nevertheless engaged in an unlawful and dangerous act which a reasonable person in the same circumstances would realise exposed him to risk of serious injury and, as resulted in this case, a risk of death. The courts must endeavour to deter those who may be inclined to engage in violence of this kind. Conduct such as yours particularly when coupled with consumption of excessive alcohol can, as you are now aware, cause death.
16 As has been pointed out by your counsel, Mr Brustman, however, there are some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour, and I do so. Although the plea of guilty was not entered until several weeks before the matter came on for hearing, it appears to me from reading the depositions that there were some issues of causation which, to some degree at least, justified investigation and legal consideration. It should be noted that the basic facts of what occurred have never been contested by you. Indeed, they have always been admitted by you.
17 The community has by your plea been spared the time and the cost of a trial. Importantly, those who loved your victim have been spared the pain and unhappiness which a trial of this proceeding would have brought.
18 You were, of course, quickly apprehended and you readily admitted your part in the crime. Indeed, as your counsel pointed out to me, you admitted to police the day after the assault that the attack upon your victim was both unlawful and dangerous.
19 I accept that you are remorseful for your actions. The record of interview with the Homicide Squad was undertaken at a time well before the death of your victim. The interview contains a number of expressions of concern for your victim and I am satisfied, having viewed the videotape of the record of interview, that those expressions of concern were genuinely voiced.
20 I have been told something of your personal history and of your circumstances. You are now aged 40 years. You were born in Suva in Fiji. You were educated to Form 5 in Fiji and you left school at the age of 16 and engaged in casual work. Subsequently, at age 18, you obtained work as a pharmacist's assistant, which work you continued for a period of about five years.
21 You were married in 1981 and had three children. Your wife was half Fijian and half Australian. You are of the Indian race. These racial differences caused difficulties in the relationship between you and your wife and her family.
22 In 1987, and in consequence of the events following the coup d'tat which took place in Fiji at that time, you lost your employment. Your wife at that time left you and went to live with her Fijian family taking your three children with her.
23 You came to Australia in 1988 initially on a two month tourist visa. You did not, however, return to Fiji after expiry of that visa until 1992 when the Australian Department of Immigration apprehended you and you returned to Fiji. Nevertheless, you remained alienated from your wife and from your three children.
24 Subsequently, however, you were permitted to re-enter Australia and you are now an Australian citizen. Upon your return to Australia in 1993 you obtained employment making LPG cylinders with an engineering firm, for whom you had worked during your period of illegal residence in this country. Subsequently you obtained work as a forklift driver in a soft drink factory before being laid off shortly before the events which bring you before this court occurred. Further, and upon your return to Australia in 1993, you entered into a de facto relationship with a woman who left you in 1998. This relationship breakdown appears to have precipitated the commencement of your consumption of alcohol on a regular and heavy basis.
25 You have in recent times formed another relationship with a woman, and notwithstanding the fact that you have been in prison on remand for much of the last year she continues to support you and intends to support you in the future.
26 You have no prior convictions and are thus entitled at your age to rely upon your previous good record. However, in the course of your plea I was informed of a matter which occurred subsequent to the date of the offence in this case. You were convicted at the Magistrates' Court at Melbourne on 28 November 2000 with having recklessly caused serious injury on 13 June 2000. You pleaded guilty and you were fined $500. I was informed by your counsel that the incident which led to this subsequent conviction took place when the estranged husband of the woman with whom you now have a relationship and with whom you were then living appeared at her premises. I was informed upon your plea that that woman has two children. On 13 June 2000 their father attended at the front of the premises where you and she lived for the purposes of having access to such children. I was informed that preceding this date there had been a history of domestic dispute between the woman concerned and her former partner. It would appear that you attended outside the premises when he arrived and that you were armed with a domestic fruit knife. You had on this occasion also consumed alcohol beforehand. In the course of a confrontation the husband was stabbed in the upper thigh with that knife. Upon interview you informed the police that you took the knife with you to afford yourself a level of self-defence. The material before me does not demonstrate further detail about this matter but further detail is probably not necessary.
27 It was urged upon me by Mr McArdle of Her Majesty's Counsel who appeared to prosecute that your conduct on this occasion reflected poorly upon your submission that you were remorseful for your conduct in relation to the matter before me. Whilst this is arguable, it appears to me that the subsequent event is even more relevant to issues of your prospects of rehabilitation and of special deterrence. It is obviously a matter of concern that notwithstanding the dreadful consequences of your assault upon Fitzgerald whilst intoxicated, that you subsequently became involved in another confrontation involving violence of some level at least, after the consumption of alcohol. The fact of the subsequent conviction also impairs to some degree the good character for which you would otherwise be allowed credit as a first offender.
28 Evidence on your behalf was led before me. Dr Mark Taylor, a consultant forensic psychiatrist at the Department of Psychiatry at the Alfred Hospital, gave evidence that he examined you at Port Phillip Prison during February this year. He noted that you were an irregular social drinker until 1998 when you commenced to abuse alcohol following upon the breakdown of your de facto relationship in that year. Dr Taylor observed that you conceded you had "an alcohol problem". It is notable, as stated above, that on the occasion of the subsequent offence dealt with in the Magistrates' Court you had consumed alcohol prior to the assault. Dr Taylor does not consider that you suffer from any psychiatric illness, but does conclude that alcohol counselling should be undertaken by you and would be an appropriate condition of any parole.
29 I observe that since your bail was revoked in consequence of your subsequent offence you have undertaken a number of courses in relation to drug and alcohol matters whilst you have been on remand at Port Phillip Prison. To this extent it appears your rehabilitation has commenced. Obviously a recognition by you of the relationship between alcohol and your crime is a necessary first step in that process.
30 I take into account the references which have been put before me. Mr Chandra, who was the pharmacist who employed you in Fiji and who now conducts a pharmacy in Australia, has expressed his view that you were a man of good character when you worked for him.
31 A report has been obtained from your general practitioner who notes that during 1999 your major medical difficulties were alcohol dependency and secondary depression. He noted that you had a major problem with depression which was treated with Prozac in May 1999. Dr Taylor, however, observed that you subsequently ceased that antidepressant and you ceased your attendance upon the general practitioner.
32 The managing director of the company which owns the boarding house in which you were resident at the time of the offence has provided a reference to the effect that you were honest, well-behaved and courteous to management and other residents whilst you lived at the boarding house in question.
33 It does appear that it is only in recent years that alcohol has become a major factor in your life in association with your family alienation and your incapacity to cope with the breakdown of your relationship in 1998.
34 However, as well as matters personal to you such as the chances of your rehabilitation and special deterrence, I must among other things take into account general deterrence. It must be clearly understood by those in the community who see violence as a means of resolving arguments that if injury and/or death occurs severe punishment must follow.
35 It is true that the crime of manslaughter is an offence committed in widely differing circumstances of gravity. Whilst it is also true that the category of manslaughter by unlawful and dangerous act is in many circumstances less grave than some other forms of manslaughter, particularly where, as here, the consequences are far greater than the intended level of harm, manslaughter is nevertheless a serious offence.
36 You have taken the life of a man unlawfully. That is a matter of profound significance to the law and its seriousness must be reflected in the sentence imposed as a consequence.
37 There is, in my view, in the circumstances before me no alternative, as indeed was conceded by your counsel Mr Brustman, other than to impose a sentence of imprisonment.
38 I sentence you to a term of imprisonment of five years.
39 I direct that you will not become eligible for parole until you have served three years of that term.
40 I declare pursuant to s.18A(4) of the Sentencing Act that the period of 323 days during which you have been held in custody be reckoned as time already served under the sentence which I have imposed.
41 I direct that this declaration be entered in the records of the court.
42 With your consent I make the order for disposal of the exhibits accumulated in the course of the investigation of your crime in accordance with the order handed to me by Mr McArdle.
43 The prosecution has also made application for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act 1958. Notwithstanding your consent to such procedure I must be satisfied that, in all the circumstances, the making of the order is justified. I must also give reasons for my decision.
44 I propose to make the orders sought for the taking of a sample of blood and/or a sample of saliva pursuant to s.464ZF of the Act. I am satisfied that such an order is justified in all the circumstances, taking into account the seriousness of your crime and its violent nature and in addition your consent to such an order. Furthermore, I consider it is in the public interest that such an order should be made. I direct that a copy of the order and a copy of these reasons be served upon you within 28 days of today's date.
45 I am required to inform you, Mr Bali, that a member of the police force may use reasonable force to enable the procedure of the taking of such a forensic sample to be conducted.
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