R v Dhakal
[2018] VSC 295
•1 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0269
| THE QUEEN | |
| v | |
| HARI PRASAD DHAKAL | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2018 |
DATE OF SENTENCE: | 1 June 2018 |
CASE MAY BE CITED AS: | R v Dhakal |
MEDIUM NEUTRAL CITATION: | [2018] VSC 295 |
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CRIMINAL LAW Sentence - Murder – Plea of not guilty – Trial – Accused gave sworn evidence – Jury’s verdict of guilty – Issues including intent, voluntariness and self-defence – Sentencing consistent with jury verdict – Whether belief in necessity – Whether reasonable response in the circumstances – Remorse – Prospect of deportation of limited relevance – Sentence of 23 years’ imprisonment – Minimum term 17 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Bourke Ms D Manova | Office of Public Prosecutions |
| For the Accused | Dr T Alexander Mr H Kirimof | Harper Buscombe & Madden Lawyers |
HIS HONOUR:
Hari Prasad Dhakal, on 23 May 2018 in Ballarat a jury found you guilty of the murder of Abdullah Siddiqi. You stabbed Mr Siddiqi to death in a restaurant in Ballarat known as the Ballarat Curry House on the evening of 25 October 2016. At the start of your trial, commencing on 15 May 2018, you pleaded not guilty to the charge of murder. Later, on 23 May 2018, I heard a plea on your behalf and submissions made on behalf of the prosecution on the sentence that the Court should impose on you. I note that no victim impact statements were filed but the deceased was married and I have no doubt his wife is suffering significantly at his loss.
The maximum penalty for murder is life imprisonment and it is now my responsibility to sentence you for this offence.
Circumstances of offending
The deceased Abdullah Siddiqi was originally from Pakistan and since July 2016 had lived in Ballarat.
You are from Nepal and have been in Australia since 2000. For most of that time you have not possessed a valid visa for your presence in Australia. You have no family in Australia. You have worked as a chef in a number of restaurants in various states and on 4 July 2016 you relocated to Ballarat, renting a room at Reid’s Guest House in Lydiard Street North, Ballarat.
On the evening of Tuesday 25 October 2016 the deceased arrived at the Ballarat Curry House where you were working as a chef. When he entered the restaurant he had with him a bottle of Jim Beam Black Label whiskey and he sat at a table in the restaurant. He apparently proceeded to drink the whiskey and became quite intoxicated. The evidence suggests he was not a frequent consumer of alcohol and the effect on his behaviour was significant. A later toxicological analysis of the blood taken from the deceased at the post-mortem examination showed that he had a blood alcohol concentration of between 0.13 per cent and 0.14 per cent and he was therefore significantly intoxicated.
Mr Siddiqi was the only customer in the restaurant. Those working in the restaurant that night were Sonia Kumari, a waitress who gave evidence at your trial, and you.
A witness, Ashley Hardy, was in the vicinity of the restaurant and when trying to decide whether to patronise the establishment he looked through the window and saw the deceased sitting at a table and noticed that he was the only customer. His observations seemed to suggest that the deceased was in some state of distress.
Whilst in the restaurant the deceased ordered food as well as Coca-Cola with ice, to pair with his bourbon. After finishing his dinner, Mr Siddiqi approached the counter near the kitchen and spoke to Sonia Kumari. He told her he wanted more food, asking for something spicy.
You came to the counter where the deceased was and told him he had had too much to drink. It is common ground that the deceased lost his temper. He became quite abusive towards you and, in the Hindi language, abused you with terms like ‘mother-fucker’ and ‘sister-fucker’. Initially you did not respond, in part because your lack of a visa meant that you wanted to avoid any trouble. However, the verbal abuse from the deceased continued. There was then pushing and shoving between the two of you. The waitress Sonia Kumari became quite distressed by what she was witnessing and urged the two of you not to fight.
At some stage water was spilt on the floor and I am satisfied that during this altercation the deceased fell to the ground, possibly as a result of slipping on the water, or as a result of the initial attack that you launched against him with a knife.
In the early stages of this confrontation your view was, as you described it in your sworn evidence during the trial, that you were not frightened of the deceased and that you were well aware that he was too drunk to do harm to you. Nonetheless, after the confrontation began, you took possession of a knife of significant size, which you had been using in the kitchen and you stabbed the deceased multiple times. I am satisfied that at least some of the stabbings occurred while the deceased was already on the ground.
After stabbing the deceased to death you wrapped the knife in a cloth, put it in a plastic bag and took it to the Ballarat police station.
On arrival at the Ballarat Police Station you told the first officer you spoke to ‘I’ve killed someone’, and then produced the knife as being the knife you used to kill the deceased.
The photographs of the crime scene and also of the autopsy demonstrated that devastating wounds were imposed on the deceased to his head and to his neck. Obviously, the jury’s verdict of guilty on the charge of murder means that they were satisfied beyond reasonable doubt that at the time you inflicted those injuries on the deceased you were not acting in self-defence.[1] I will return to deal with the basis for that conclusion and how I should apply it for the purpose of sentencing you.
[1]Crimes Act 1958 (Vic) s 322K(3).
The post-mortem conducted by Dr Matthew Lynch, who also gave evidence in the trial, was carried out on 26 October 2016 and he identified a total of 17 sharp force injuries including: four injuries to the head, nine to the neck and others to the right and left upper arms and hands. The principal injury to the neck, as he described it, involved substantial damage to the veins, arteries and voice box coupled with damage to the cervical spine. In his opinion the infliction of that injury required the use of severe force. That also applied to the injuries to the skull of the deceased.
In the meantime, on 25 October 2016, you had participated in a record of interview with police, in which you described what happened. Included in your description was your statement that you wanted to kill the deceased, and it was clear from your record of interview that the stabbing was a response to the way the deceased had conducted himself at the restaurant. During the trial you gave sworn evidence and were cross-examined by the prosecutor. On any view, your sworn evidence at the trial was of a totally different nature to the answers you had given to the police in the course of the record of interview. Your evidence at the trial included assertions that you had not controlled your actions and that you had little memory of what happened or little idea of what you were doing. Unlike in your record of interview, you asserted in your evidence at your trial that you had no intention to kill the deceased and that you were frightened at the prospect that the deceased might have obtained a knife and stabbed you, albeit that there was no sign of that happening and at no stage did the deceased have possession of any kind of weapon.
It is clear that the jury rejected your evidence.
Although issues were raised in your evidence at trial about whether your actions were conscious, voluntary and deliberate and whether you had a murderous intention, the main issue was whether you had acted in self-defence. The jury were directed that the prosecution could prove that you were not acting in self-defence by proving either that you did not believe that your actions were necessary to defend yourself from the infliction of death or really serious injury or that the conduct was not a reasonable response in the circumstances as you perceived them.
In your evidence you swore that you were concerned that the deceased may take a knife to you, although there was no sign of him having done so, as I said earlier. I have concluded that in order to sentence you on the basis that you had no belief in the necessity of your actions, that is the first of the above bases, I would need to be persuaded of that conclusion beyond reasonable doubt. I am not so satisfied and I will therefore sentence you on the basis that your conduct was not a reasonable response in the circumstances as you perceived them.
By committing the offence of murder against Mr Siddiqi you have committed a very serious offence. Indeed, any offence of murder is serious. The violence of the offence was significant and, as discussed above, the wounds inflicted on the deceased were numerous and substantial, in some instances damaging bone. It is clear that this is completely disproportionate to the threat that the deceased posed and that must have been recognised by the jury.
However, as I will go on to describe, the gravity of this offence of murder is affected by the fact that it is committed in spontaneous circumstances and where you were not the initial aggressor.
I will turn now to your personal circumstances before returning to the sentencing principles to be applied in your case.
Personal circumstances
You were born in Syangja in Nepal on 9 March 1967, and as I have said already you arrived in Australia in the year 2000. It would appear you had a business visa on arrival to Australia but a subsequent application for a protection visa was denied in 2003. As I understand, from that point you remained in Australia unlawfully.
You are now 51 years of age and you had worked as a chef at the Ballarat Curry House for about five months. You had previously lived in New South Wales and Queensland. You have no family in Australia and lived alone. You have a wife and two children in Nepal, although it would appear that you had no contact with them since 2002.
You and the deceased man had no relationship other than that he had previously been a customer of the restaurant. Certainly there was no pre-existing animosity between you.
As far as can be known, you have no criminal history and you are entitled to be sentenced on the basis that this is your first criminal offence.
In submissions on your behalf, it was argued by your counsel that your conduct in stabbing Mr Siddiqi was not premeditated but a response to the situation he had initiated. I accept that the deceased was aggressive and that to a degree you acted spontaneously. I note that this is also accepted by the prosecution. However, you were sober and he was intoxicated and a moment must have been reached where you should have realised, as you did at the outset, that the threat from him was totally out of proportion to the action you took with the knife that you had in your possession.
Your post-offence conduct was to immediately go to the Ballarat police station, together with the weapon you had used to kill Mr Siddiqi. You told the officer on the counter that you had killed someone and were then taken into custody. You waived the benefit of an interpreter when being interviewed by police.
Dr Alexander submitted that I should take into account the fact that you were part of the Brahmin caste, which as I understand it, would not condone what you have done. This, the Court heard, has caused you significant anxiety. It is partly for this reason he puts on your behalf that you are deeply remorseful.
As to the differences between your evidence given at trial and your record of interview on the day the offence occurred, your counsel insisted you had not intended to lie to or deceive the police and that at all times you have attempted to conduct yourself with honesty. On the other hand, the prosecution does not accept that the evidence given by you in the witness box was truthful and suggested that the differences in the account given in your record of interview and in your evidence is more indicative of regret for what you have done and the circumstances in which you now find yourself; rather than being demonstrative of any sense of remorse.
Whatever the reason for the difference in your accounts of the offending this is one of those rare cases where, despite your plea of not guilty and standing your trial on the basis I have described, I accept that you are remorseful about the fact that you have caused the death of Mr Siddiqi.
Conclusion
As I have already said, any offence of murder is a very serious offence. However, as was put on your behalf, this particular example of murder is one which occurred somewhat spontaneously and in response to significant provocation from the deceased, coupled with some form of physical aggression. I accept that Mr Siddiqi had no valid reason to be abusive of you particularly using the terminology that he did and that his consumption of a large amount of liquor, which it would appear was uncharacteristic of him, contributed to that. You were entitled to be offended by what he said and you were entitled to resist his somewhat clumsy pushing. However, your actions in stabbing him to death went far beyond anything that had been done to you by Mr Siddiqi.
Whilst I accept that a part of you may have been fearful of Mr Siddiqi and what he would do, the injuries to Mr Siddiqi would seem to indicate that you also became very angry at what had occurred and, to a degree at least, you lost control of your temper; inflicting a large number of wounds which I assume were immediately fatal, particularly those to the head and neck.
The sentencing considerations of denunciation and punishment are significant. The disproportionate actions you took must be condemned by this Court. General deterrence assumes significance because it must be understood in the community that the consequences of resorting to inflicting the kind of catastrophic injuries you inflicted on Mr Siddiqi, in the circumstances you were in, will result in a very substantial punishment for the crime of murder. Specific deterrence has its role as well although I suspect you are unlikely again to resort to such violence, based on your lack of criminal history and your remorse.
Upon your release it is virtually certain you will be deported from Australia. Normally that prospect would be a mitigatory factor which would increase the burden of your sentence. However, whilst I accept that the prospect of deportation will weigh on your mind during the time you are in custody, given that you have been in Australia for some 18 years, in reality your deportation would be likely to occur anyway because you are without a valid visa and have been for most of your time here. If you had been apprehended by Commonwealth authorities independently of this offence being committed by you, I assume you would have been placed in immigration detention, subject to whatever legal remedies you may have had. Thus, in my opinion, this is not a case where the prospect of deportation arises only from your criminal conduct though it perhaps makes the prospect all the more certain. Therefore I take the prospect of your deportation into account as part of your personal circumstances but only in that limited sense.
In all the circumstances, the appropriate sentence to impose on you is one of 23 years’ imprisonment. I fix a period of 17 years to be served by you before you become eligible to make any application for release on parole.
I declare that your pre-sentence detention is 584 days including this day. I direct that be entered in the records of the Court as time already served.
I have made the disposal order sought by the prosecution, which was not opposed by you.
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