R v Kumar
[2018] VSC 241
•18 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0070
Between:
| THE QUEEN | |
| -and- | |
| AMIT KUMAR | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 & 18 May 2018 | |
DATE OF SENTENCE: | 18 May 2018 | |
CASE MAY BE CITED AS: | R v Kumar | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 241 | |
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CRIMINAL LAW – Sentence following trial – Contravention of family violence safety notice intending to cause fear for safety – Aggravated burglary (intent to assault/persons present) – Intentionally causing serious injury (acquitted of attempted murder) – Accused, angry and threatening, entered former partner’s flat uninvited with intent to assault male guest – Once inside, accused picked up shards of glass from broken window and slashed guest several times, wounding cheek, neck, chest, snuff box and elsewhere – Surgery required to repair wounds – Victim unable to work for two months – Significant permanent scarring to cheek and neck – Accused unable to accept relationship over – Offending occurred while on bail – Plea of guilty to summary offence of committing indictable offence while on bail – Limited criminal history – Hardship of imprisonment arising from uncertainty concerning possible deportation – Very good prospects of rehabilitation – Importance of general deterrence, specific deterrence, denunciation, just punishment and rehabilitation – Totality – Total effective sentence of seven years’ imprisonment with non-parole period of four years – Sentencing Act 1991 (Vic), ss 5 & 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr N. Papas QC | Emma Turnbull Lawyers |
HIS HONOUR:
Overview
A relationship breaks down
Amit Kumar and Amy Hemming began a de facto relationship in around early-2013. Ms Hemming gave birth to their daughter, Mattia, a year later. But, within a further seven months, by November 2014, the couple had separated. They had a brief attempt at reconciliation in April 2016, but that was unsuccessful.
Mr Kumar was distraught. He still loved Ms Hemming and could not accept that their relationship was over. He became obsessive. He created an online profile, with another person’s picture, so that he could chat with Ms Hemming anonymously. Also, after finishing his shift driving taxis, on occasions, he sat out the front of her house watching people come and go. Not only was he pining over unrequited love, but he was also terribly jealous of any man that Ms Hemming might be seeing.
In that state of mind, on 8 June 2016, Mr Kumar went to Ms Hemming’s flat in Caulfield East. She was in the process of moving in. At some point, Mr Kumar pushed Ms Hemming down and grabbed her car keys and mobile phone. He looked through her phone and found that she had been communicating with another man on the internet. He threatened to go to that man’s house and kill him. Ms Hemming reported this behaviour to the police.
Later that day, police arrested Mr Kumar and charged him with breaching a family violence intervention order that had been imposed on him as a result of his behaviour during the break-up. He was also served with a fresh family violence safety notice.[1] The new notice included conditions prohibiting him from committing “family violence” and being within 20 metres of Ms Hemming or within 200 metres of her address. He was released on bail.
Contravention of family violence safety notice with intent
[1]Pursuant to ss 24-35 of the Family Violence Protection Act 2008 (Vic).
Undeterred, two days later, on the evening of 10 June 2016, Mr Kumar went to Ms Hemming’s flat again. He drove there in a friend’s car. When he arrived, he became aware that Ms Hemming had a male guest inside, who turned out to be Muhammed Idrees. Ms Hemming and Mr Idrees had been in a brief relationship in 2012 and were catching up for dinner. They were sitting in the lounge room talking, when they heard Mr Kumar outside, who was by now in a jealous rage. Despite not knowing Mr Idrees, Mr Kumar was making threats and yelling things like, “He’s married and has kids.” Ms Hemming rang the police. Mr Kumar banged on the window, eventually breaking it, causing shards of glass to fall inside the flat. He also threatened to kill Mr Idrees.
Aggravated burglary
While this was occurring, Mr Idrees unlocked the front door so that he might escape. Mr Kumar then forced the door open and entered the flat, uninvited, repeatedly saying to Mr Idrees, “I will kill you.”
Intentionally causing serious injury
Once inside, Mr Kumar picked up a large piece of broken glass from among the pieces on the floor beneath the window he had shattered. He tried to strike Mr Idrees to the head with the glass, but the blow did not connect because Mr Idrees blocked it. He then picked up two smaller shards of glass, one in each hand, and repeatedly slashed at Mr Idrees’s face, chest and arms, causing gashes to those areas. At one point, Mr Idrees cut the inside of his own hand by grabbing one of Mr Kumar’s hands in an attempt to stop him.
Eventually, when it was obvious that Mr Idrees was bleeding heavily, Mr Kumar stopped slashing. He threw the glass on the floor, removed his shirt (inexplicably) and then ran away. Mr Idrees gave chase to just beyond the end of the driveway of the block of flats but returned to Ms Hemming’s premises because he felt dizzy – presumably, as a result of blood loss.
Soon afterwards, Mr Kumar returned by driving down the driveway in the car. He stopped in front of Ms Hemming’s flat and, without getting out of the car, reached out to pick up his shirt. Just before he left, he said to Mr Idrees, “You are almost dead.” He then drove away.
Injuries to Mr Idrees
Mr Idrees was taken to hospital, where spent three days. He had suffered two wounds to his left cheek, and others to his neck, behind his ear, on his chest, his arm, his snuff box and the inside of his hand. All except the last wound required stitching during surgery. One of the wounds to the cheek was deep enough to damage the muscles and nerves, but they were repaired. The blow to the snuff box caused a cut through his sensory branch and into the joint of his thumb but did not damage tendons. Mr Idrees was off work as a taxi driver for two months. Initially, he lost strength in his grip and movement in his hand as a result of the wound to his snuff box. However, after a good deal of treatment with a hand therapist, that injury has largely recovered, although he still feels pain on occasions. He has been left with two permanent noticeable scars on his cheek and one on his neck, all of which his beard mostly conceals. He required extra steroid injections to reduce the protrusion of one of those scars. He also had several counselling sessions to deal with the emotional effects of the assault and his injuries.
Mr Kumar’s admissions to his former wife
At about 10:18 p.m. on the evening of these events, Mr Kumar spoke to his former wife Seema Seema. He said that he had “punched someone” at Ms Hemming’s house. He said he went there because he got a call from this man, who said he was “going to [Ms Hemming’s] house and was going to fuck her” and that, “If you have the guts, come and stop me.” Mr Kumar also said, “I love Amy and I couldn’t control myself, I couldn’t control my anger. That’s why I went there.” He also told her that his daughter Mattia “was in bad shape and she was not wearing any clothes and it’s winter out there”.
Arrest, charges and committal
Mr Kumar voluntarily attended the police station on 11 June 2016, the day after the assault. He was arrested and charged with various offences, including contravening a family violence safety notice intending to cause fear for safety, aggravated burglary, attempted murder and, in the alternative, intentionally causing serious injury and recklessly causing serious injury. He has remained in custody ever since. Ultimately, he was committed for trial on those charges.
Trial
At his trial in this Court, Mr Kumar pleaded not guilty to all charges. He denied deliberately breaking the window and entering the premises uninvited or with an intention to assault but rather entered only to sort out things with Ms Hemming in respect of their child. He accepted that there was an altercation but denied causing Mr Idrees’s injuries or having any intention to kill or cause such injuries. Instead, those injuries were caused when they fell on the broken glass after Mr Idrees initiated an attack upon him.
Mr Kumar did not give or call evidence at trial. These defences emerged mostly from the evidence, led by the Crown, of recorded telephone conversations from prison between Mr Kumar and Ms Seema or his sister Tinni Seahwani.[2] Mr Kumar also pointed to the absence of injuries to the inside of his hands, which might be expected had he wielded broken glass, whereas it was Mr Idrees who had such an injury.
[2]He was interviewed by police at the time of his arrest, but, following a pre-trial ruling, none of that interview was led in evidence at trial.
The Crown case was that, in so far as Mr Kumar spoke of Mr Idrees accidentally sustaining the injuries while in a wrestle on the floor after initiating the attack, these were no more than musings by Mr Kumar as to what he would like the jury to believe rather than the truth of the matter, and that this account should be rejected beyond reasonable doubt.
Verdicts
Evidently, the jury rejected Mr Kumar’s defences and largely accepted the Crown case, for they found him guilty of contravening a family violence safety notice intending to cause fear for safety and aggravated burglary, and not guilty of attempted murder but guilty of the alternative of intentionally causing serious injury. It was therefore unnecessary to take a verdict on recklessly causing serious injury or the statutory alternatives of intentionally causing injury and recklessly causing injury, which were also left to the jury.
Summary offence
At the plea hearing, Mr Kumar pleaded guilty to a related summary offence[3] of committing an indictable offence, namely aggravated burglary, while on bail.
[3]Pursuant to the procedure outlines in s 145 of the Criminal Procedure Act 2009 (Vic).
Overview of sentencing considerations
Having heard a plea in mitigation, it is now this Court’s duty to sentence Mr Kumar for these offences.
The indictable offences are serious, especially the assault on Mr Idrees. While spontaneous, that offence of intentionally causing serious injury was vicious, involved quite serious injuries and has left Mr Idrees with permanent scarring. All offences were committed while on bail and reflect Mr Kumar’s inability to allow Ms Hemming to get on with her own life following the breakdown of their relationship. Further, Mr Kumar cannot rely on any pleas of guilty or remorse in mitigation, as he chose to stand his trial.
As will be seen, however, there are some significant mitigating factors to be brought into account. Most importantly, despite his pleas of not guilty and the nature and gravity of his crimes, I am satisfied that Mr Kumar has very good prospects of rehabilitation and that he will continue to find his time in custody very difficult, especially because of the uncertainty as to whether, and, if so, when, he will be deported to India, whence he hails.
I turn now to consider these factors and others in more detail before passing sentence.
No victim impact statements
Neither Ms Hemming nor Mr Idrees filed a victim impact statement. Ms Hemming advised the Crown that she simply wanted to put the matter behind her. Mr Idrees, it seems, was heading off to his home in Pakistan.
Nevertheless, it is clear that the whole ordeal must have been a frightening experience for both Ms Hemming and Mr Idrees. Further, in Mr Idrees’s case, it is apparent, from the evidence at trial, that the injuries he suffered have had a significant and lasting impact upon him, and that the noticeable scarring on his face and neck will be there permanently.
Nature and gravity of offences, culpability and degree of responsibility
I turn now to an assessment of the nature and gravity of the offences, and Mr Kumar’s culpability and degree of responsibility for those offences.
Contravention of family violence safety notice with intent
The offence of contravening a family violence safety notice intending to cause fear for safety carries a maximum penalty of five years’ imprisonment.[4]
[4]See s 35A(2) of the Family Violence Protection Act 2008 (Vic).
The offence can be quite serious. It is committed when a person who has been served with such a notice, and has had it explained to him or her, then contravenes a condition of the notice intending to cause, or knowing that his or her conduct will probably cause, apprehension or fear in the “protected person” (i.e. the person for whose protection the notice was issued) for his or her own safety or that of any other person.
In the present case, the jury must have been satisfied that Mr Kumar made threats and deliberately broke the window and that, in so doing, he knew, at the very least, that he would probably cause Ms Hemming to fear for her own safety or that of Mr Idrees. I am not satisfied, however, that, in his state of anger and concern for his child, he meant to cause her any such fear at that point. Nevertheless, that the notice had been served on him only two days before, and that the offence was committed while on bail, both increase his moral culpability. Further, as hurtful as feelings of unrequited love may be, the offending reflects Mr Kumar’s inability to accept that Ms Hemming was free to get on with her own life as she sees fit, which also increases his moral culpability.
Thus, overall, the offence has some serious features.
Aggravated burglary
Aggravated burglary can be a much more serious offence, depending on its particular form and its attendant circumstances. The potential gravity of the more serious forms of this offence is reflected in the maximum penalty of 25 years’ imprisonment,[5] which is the second-highest maximum penalty available under Victorian law.
[5]See s 77 of the Crimes Act 1958 (Vic).
The form of aggravated burglary committed here involved entering premises with an intention to assault and with the knowledge that a person was present in those premises. More serious forms of the offence usually involve entering with such an intention while carrying a weapon. On the other hand, less serious forms often involve merely entering with an intention to steal without a weapon and with no intention of confronting occupants of the premises.
While no weapon was carried at the time of entry, it is obvious, from the evidence of Ms Hemming and Mr Idrees, that they were very frightened by Mr Kumar’s unauthorized entry and his demeanour, particularly given the way he had been carrying on outside in the moments before. Further, that the offence was committed while on bail also increases Mr Kumar’s moral culpability. While I accept that part of Mr Kumar’s motivation for being there (and, indirectly, for committing these offences) was to see his child, as I have said, it is also clear that he was obsessed with Ms Hemming and that he just could not accept that she was free to live her own life as she pleased.
Overall, I regard this as a serious instance of aggravated burglary. That said, as I shall explain later, some of the criminality of this offence overlaps with the other two indictable offences.
Intentionally causing serious injury
The parties both submitted that the offence of intentionally causing serious injury is the most serious of the offences for which Mr Kumar must be sentenced. I agree.
The offence is, by definition, a relatively serious offence. It involves intentionally causing another person serious injury and carries a maximum penalty of 20 years’ imprisonment.[6]
[6]See s 16 of the Crimes Act 1958 (Vic).
Like aggravated burglary, the seriousness of this offence can vary markedly. Grave instances of the offence can be among the most serious non-fatal offences against the person, and even as grave as some inchoate offences relating to murder. For example, some instances of the offence have involved permanent catastrophic harm caused in grossly violent circumstances. At the other end of the spectrum, some instances of the offence involve much lower levels of serious injury caused in much less culpable circumstances.
In my view, while this case falls somewhere between those two extremes, for several reasons, this is still quite a serious example of the offence. First, in a frenzied attack, Mr Kumar inflicted multiple blows to Mr Idrees’s face and upper body region with broken glass. This was a very dangerous thing to do. It is not hard to envisage that blows directed to the face with such a weapon might have struck an eye or eyes and could have rendered Mr Idrees permanently blind or even substantially more disfigured; or a vital area could have been struck, with even graver consequences.
Secondly, while the injuries actually suffered were neither catastrophic nor life-threatening, they were still quite serious and debilitating for Mr Idrees. Further, as I have said, he has been left with permanent scarring on a prominent part of his face.
Thirdly, while Mr Kumar may not have intended to cause permanent scarring to Mr Idrees’s face, he must have intended at least serious injury of a relatively grave kind, given the nature and position of the blows and the weapons he employed.
Fourthly, Mr Idrees did not offer the slightest provocation for the assault. He was merely visiting a friend, as he was entitled to do. I reject Mr Kumar’s assertions to Ms Seema about being taunted by the victim, or a person, in a phone call. In coming to that view, I have also had regard to what Mr Kumar has said to the Court this morning, and the additional submissions that both parties made. I can only infer that Mr Kumar lied to Ms Seema in this way in a perverse attempt to justify the unjustifiable.
Finally, as with the other indictable offences, this offence was committed while on bail. Worse than that, it reflected Mr Kumar’s belief that, somehow, he had a right to determine whether or not Ms Hemming might see another man.
On the other hand, there are other factors offsetting the gravity of the offence. First, as I have observed already, as serious as they were, the injuries were neither catastrophic nor life-threatening.
Secondly, apart from the scarring, which is permanent, all other injuries have healed.
Thirdly, I accept that part of Mr Kumar’s motivation for being at the premises and part of the reason for his loss of self-control arose from his concern for his daughter.
Fourthly, I accept that the offence was spontaneous, as was the use of a weapon. There was no planning. He did not bring a weapon with him. Instead, he picked up the pieces of glass opportunistically.
Finally, I accept that this was not a protracted attack and that Mr Kumar desisted when he saw that Mr Idrees was bleeding heavily.
Balancing all matters, I regard this as a serious instance of the offence of intentionally causing serious injury.
Committing an indictable offence while on bail
As for the summary offence, it is a comparatively minor offence, carrying a maximum penalty of only three months’ imprisonment.[7]
[7]See s 30B of the Bail Act 1977 (Vic).
It is, however, difficult to assess how serious an example of the offence this particular instance of it is. That the aggravated burglary was itself serious, and that it was committed within only two days of Mr Kumar’s release on bail, both tend to increase the seriousness of the summary offence.
On the other hand, and as I shall explain later in these reasons, the criminality inherent in this offence is all but subsumed in the sentences imposed for the indictable offences in circumstances where I have had regard to the fact that they were all committed on bail as a matter in aggravation.
Mitigating factors
I turn now to the factors in mitigation on which Mr Kumar is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Papas QC, who appeared for Mr Kumar both at trial and on the plea.
Background
Mr Kumar was born in India on 17 June 1974. He was therefore aged 41 at the time of the offending and is now 43.
His family were sufficiently well off to send Mr Kumar to university. He earned a Bachelor of Commerce in 1995 and then a Masters in Sales and Marketing in 2002.
Mr Kumar has three younger sisters. His mother and sisters live in India. His father died in March 2016.
Unfortunately, Mr Kumar was unable to go back to India for his father’s funeral because his passport had expired and he was unable to have it reissued in time. As a Hindu and as the only son, it fell to him to “give the fire” to his father. As Mr Papas explained, this is an important part of the Hindu funeral ceremony. That he could not be there and perform his duty is a source of great stress for Mr Kumar. Also, he was heavily criticized by others in the family for not being there. The older two sisters in his family no longer speak to him.
Mr Kumar came to Australia in 2009 with his wife Ms Seema. They left India together because of threatening behaviour by Ms Seema’s ex-husband. Their daughters Jannad (born in March 2010) and Shahi (born in September 2012) were both born in Australia. The couple separated in 2012.
In 2013, Mr Kumar formed a relationship with Ms Hemming. As I indicated earlier, their daughter Mattia was born here in April 2014; they separated in November 2014; and then had a failed attempt at reconciliation in April 2016.
Mr Kumar has a solid work history. In India, he worked in the back office of a call centre for about four years. He also had other jobs and was doing quite well. Since being in Australia, Mr Kumar has worked as a subcontract courier for Chemist Warehouse for five years and thereafter as a taxi driver.
Having set out that background, I turn now to the mitigating factors.
Limited prior and subsequent criminal history
First, Mr Kumar has only a modest prior and subsequent criminal history.
In January 2014, he was placed on a community correction order, without conviction, on two charges of assault. As I understand it, these offences concerned Ms Seema.
In May 2015, he was fined, without conviction, for contravening a family violence intervention order. This offence concerned Ms Hemming following their initial separation. As I have said, they reconciled subsequently, albeit only briefly.
While in custody awaiting trial on the present matters, Mr Kumar was fined for breaching the family violence intervention order on 8 June 2016. I referred to the incident giving rise to this charge at the outset of these reasons.
While it is of concern that Mr Kumar has breached family violence orders or has otherwise engaged in family violence in the past, his criminal history is still rather modest for one who stands for sentence now on such serious offences.
Hardship of imprisonment
Another matter in mitigation urged by Mr Papas was that, for a number of reasons, Mr Kumar has found, and will continue to find, imprisonment particularly burdensome.
First, he has some health difficulties, including sleep apnoea and a heart condition.
Secondly, he is suffering from depression, for which he is being medicated. This is exacerbated by the grief he feels at being unable to attend his father’s funeral and by his separation from his children.
Thirdly, he was assaulted earlier in his period of incarceration. This has caused numbness in his left hand.
Fourthly, and most importantly, there is evidence before me that Mr Kumar’s visa lapsed in August last year and that, as an “unlawful non-citizen, [he] would be subject to removal from Australia as soon as reasonably practicable”. The parties accept that this means that Mr Kumar faces a significant risk of deportation, particularly given the length of the sentence I am about to impose as well.[8] Mr Brown, who appeared for the Director at trial and on the plea, accepts that the uncertainty of Mr Kumar’s fate in view of the significant risk of deportation makes his time in custody all the more onerous. This, it is also accepted, is particularly so in circumstances where Mr Kumar has been here for nine years, has three children born in this country and has a grave and justifiable concern that he will be unable to have access to those children if he is deported. I add that Mr Papas emphasized this point this morning in the additional submissions. In my view, this is a very significant additional punishment to Mr Kumar.
Very good prospects of rehabilitation
[8]See, for example, Schneider v The Queen [2016] VSCA 76 at [16]-[26] (per Priest JA, with whom Coghlan and Kyrou JJA agreed).
Next, as I indicated earlier, I am satisfied that Mr Kumar has very good prospects of rehabilitation. I do not say those prospects are excellent, but they are very good. There are three broad reasons for this conclusion.
Notwithstanding his demonstrated failure to deal adequately with the breakdown of relationships, I think that Mr Kumar’s limited criminal history, his high level of education and his preparedness and ability to work suggest strong prospects of rehabilitation.
It is also a good sign that he appears to have the support others in the community. For example, Marie Taylor spoke very positively in her (unchallenged) reference about Mr Kumar’s kindness and generosity and her belief that he will endeavour to “stay away from trouble” and “do his best to contribute back to the Australian community”. I expect it would be a much more lonely existence awaiting possible deportation without the support of someone like Ms Taylor.
Further, Mr Kumar has no drug or alcohol problem that otherwise might interfere with his path to reform. Again, that was a matter that was emphasized by Mr Kumar himself this morning.
Finally, despite the difficulties he has had in prison, Mr Kumar has continued to work towards reform by doing whatever courses have been available to him. For example, he has done courses in warehousing, cleaning, laundry and kitchen operations, and in general education, business and welding. He has also engaged in studies concerning psychology, depression and parenting.
To be sure, I would have regarded Mr Kumar’s prospects of rehabilitation as better had he pleaded guilty and shown remorse. But the absence of those mitigating factors cannot deny the other factors suggesting positive prospects of rehabilitation.
It is for those reasons that, balancing all matters, I assess his prospects of rehabilitation as very good.
Conduct of trial
The next factor in mitigation concerns the way in which Mr Kumar’s trial was conducted.
In my view, Mr Kumar’s trial was conducted in a way that conceded many matters that might have been in issue. For example, there was no dispute that Mr Kumar attended the premises in breach of the family violence safety notice. Further, responsibly, the defence co-operated with the prosecution to confine the issues and shorten the trial.
While the conduct of the trial is not a matter of great moment in mitigation in this case, as several matters remained in issue, it is still something that I think should be brought into account.[9] It should also be recognized, however, that the presence of the more serious charge of attempted murder on the indictment meant that, for legitimate forensic reasons, Mr Papas was limited in the additional concessions he might have made on behalf of Mr Kumar.
[9]See, for example, Karam v The Queen [20015] VSCA 50 at [156]-[157] (Weinberg, Priest and Beach JJA).
Plea of guilty to summary offence
Finally, I take into account in mitigation the fact that Mr Kumar pleaded guilty to the summary offence.
Sentencing purposes
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important considerations in these instances of contravening a family violence safety notice, aggravated burglary and intentionally causing serious injury. The community should understand that behaviour of the type engaged in by Mr Kumar is denounced by the courts and will be punished with substantial terms of imprisonment. These terms will reflect, among other things, that Ms Hemming, a person protected by a family violence safety notice, has been frightened by Mr Kumar’s behaviour in breach of that notice; that the sanctity of her home has been violated by Mr Kumar acting as a trespasser with assault on his mind; that her guest Mr Idrees has been assaulted and seriously injured with broken glass in terrifying circumstances; and that both of these people’s lives have been affected significantly in consequence.
All in the community should understand that courts simply will not tolerate the criminal behaviour of those who treat their ex-partners (and acquaintances) as fair game, or act as if they have some sort of proprietorial right over ex-partners. The breakdown of a relationship is a sad thing. So is unrequited love. But obsessive behaviour is troubling. The estranged must move on and behave in a civilized and dignified manner, and not as if it is their prerogative to attempt to control the lives of their ex-partners.
Specific deterrence
While the need for specific deterrence must be given weight, especially given that Mr Kumar was served with a family violence safety notice only two days before these offences, and given that he does have a criminal history relating to family violence, that need is moderated somewhat for two reasons. First, as I have already noted, that criminal history is rather modest. Secondly, in my view, Mr Kumar is very unlikely to engage in such behaviour again given his very strong prospects of rehabilitation and the likely deterrent effect on him that will result from the sentences to be imposed as a result of the weight to be given to the other sentencing purposes.
Rehabilitation and protection of the community
In my view, rehabilitation remains an important consideration. This is particularly so because Mr Kumar has such strong prospects of rehabilitation.
I do not consider that there is any need to add any separate component in sentencing for the protection of the community. As I say, I consider it very unlikely that Mr Kumar would act in such a seriously violent way again. And, again, as in the case of specific deterrence, I think that the weight I have accorded to the other purposes of sentencing will ensure that the individual sentences, the total effective sentence and the non-parole period are of more than sufficient severity to protect the community.
I think it is also important to recognize the interplay between rehabilitation and protection of the community in any event. Mr Kumar will be returning to the community ultimately – whether here or in India. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximized, and that he is not crushed, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community, wherever that may be, are as strong as they can be.
Parsimony
Section 5(3) of the Sentencing Act, relevantly, provides that “a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed”. This provision reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentences in this case.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for each offence.
Contravention of family violence safety notice
Sentencing statistics can be of some guidance in determining current sentencing practices. However, I have not been able to find any such statistics for the offence of contravening a family violence safety notice. But there are relevant statistics for aggravated burglary and intentionally causing serious injury.
Aggravated burglary
Those statistics show, for the period from 2010-11 to 2014-15, that prison sentences for aggravated burglary ranged from about two months’ imprisonment to six years and nine months’ imprisonment; that the average (mean) sentence ranged from about two years and five months’ imprisonment in 2011-12 to two years and eleven months’ imprisonment in 2010-11; and that the median sentence was two years and six months’ imprisonment.[10]
[10]Sentencing Advisory Council, Sentencing Snapshot: Aggravated burglary, No 184, June 2016, p 3.
I am a little surprised that the sentences were not showing an upward trend over that survey period. In any event, my impression is that sentences for aggravated burglary have increased significantly in the last three years.
Intentionally causing serious injury
I turn now to the sentencing statistics for intentionally causing serious injury. Those statistics show, for the period from 2010-11 to 2014-15, that prison sentences for intentionally causing serious injury ranged from five days (when combined with a CCO) to fourteen years’ imprisonment; that the average (mean) sentence ranged from about four years and four months’ imprisonment in 2011-12 to five years and two months’ imprisonment in 2014-15; and that the median sentence was four years and six months’ imprisonment.[11]
[11]Sentencing Advisory Council, Sentencing Snapshot: Causing serious injury intentionally, No 187, June 2016, pp 3-5.
These statistics support my impression that sentences for this offence have increased, at least until 2015. Again, I suspect the increase would be even more marked today.
The limitations of statistics
However, the statistics for both offences are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
Case comparisons
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. Counsel did not, however, refer me to any comparable cases. But, in the area of sentencing, it is almost always difficult usefully to compare other cases in any event. No two cases are ever truly alike. After all, sentences are not precedents to be applied or distinguished.
Nevertheless, I have considered some other sentences imposed for aggravated burglary and intentionally causing serious injury, and the reasons given for imposing them. I have found them instructive in gauging the order of sentences imposed for these offences, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentences for Mr Kumar’s particular offences.
Totality and double punishment
I turn now to totality and the need to avoid double punishment, which, in this case, are interrelated topics.
While the three indictable offences are formally distinct, they overlap to some extent, they occurred immediately consecutively and, in a sense, they were part of the one lawless episode.
As to the overlap, I have taken particular care to avoid double punishment. Thus, for example, I have taken into account the fact that the knowledge required as to the presence of Ms Hemming and Mr Idrees in the flat and Ms Hemming’s fear for her own safety and that of her guest tends to overlap with the knowledge required as to the presence of those two persons in the flat and Mr Kumar’s intention to assault Mr Idrees for the purposes of the aggravated burglary. Similarly, the latter intention overlaps in part with, or is at least part of the initial thinking leading to, the intention to commit the offence of intentionally causing serious injury.
The summary offence, as pleaded, is constituted by committing the aggravated burglary while on bail. Since I have already taken into account, as an aggravating factor, in respect of all three indictable offences, the fact that they were committed while on bail, and having regard to totality, it seems to me that it is proper simply to convict and discharge on that offence, which is what I shall do.
Further, both parties accepted, correctly in my view, that the dictates of totality may well compel that partial cumulation should be directed only as between the sentences for the offences of intentionally causing serious injury and aggravated burglary, with the sentence on the family violence safety notice offence being directed to be served wholly concurrently. In the result, I have determined that that approach is required in this case.
Disposal order
Before formally announcing sentence, I note that an application has been made for a disposal order in respect of various items. The application is not opposed. In those circumstances, I shall make the order sought.
Sentence
I turn now to sentence.
Mr Kumar, please stand.
Balancing all other factors as best I can, I sentence as follows:
On Charge 1, contravening a family violence safety notice intending to cause fear for safety, Mr Kumar is convicted and sentenced to six months’ imprisonment.
On Charge 2, aggravated burglary, Mr Kumar is convicted and sentenced to four years’ imprisonment.
On Charge 4, intentionally causing serious injury to Mr Idrees, Mr Kumar is convicted and sentenced to six years’ imprisonment.
On the summary offence in Charge 8, of committing an offence while on bail, Mr Kumar is convicted and discharged.
I direct that one year of the sentence on Charge 2 (aggravated burglary) be served cumulatively upon the sentence on Charge 4 (intentionally causing serious injury), and that all other sentences be served concurrently.
That makes a total effective sentence of seven years’ imprisonment.
I fix a non-parole period of four years.
The non-parole period is a bit shorter than I might ordinarily impose. I think that such an order is both necessary and appropriate on account of Mr Kumar’s strong prospects of rehabilitation and the uncertainty he faces because of his immigration status.
Finally, pursuant to s 18 of the Sentencing Act, I declare that 707 days of pre-sentence detention, including today, be reckoned as served under this sentence.
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