R v Kumar
[2004] VSC 527
•8 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1455 of 2004
| THE QUEEN |
| V |
| RAJINDER KUMAR |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4-8, 11-15, 18 OCTOBER 2004; 1 DECEMBER 2004 | |
DATE OF SENTENCE: | 8 DECEMBER 2004 | |
CASE MAY BE CITED AS: | R v RAJINDER KUMAR | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 527 | |
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SENTENCE – Attempted murder – Multiple stab wounds – Intentionally causing serious injury – Assault to the head with a metal bar - Recklessly causing serious injury – Stab wounds to chest and arm - Low intellectual capacity of offender – Affected by alcohol – Absence of remorse – No prior convictions – Relevance of general and specific deterrence – Sentenced to a total of 16 years’ imprisonment with a minimum of 13 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Office of Public Prosecutions |
| For the Accused | Mr I. McIvor | Victoria Legal Aid |
HIS HONOUR:
Rajinder Kumar, you have been found guilty of attempted murder of your former wife, Mamta Rani. The maximum penalty for that offence is 25years' imprisonment. You have also been found guilty of intentionally causing her serious injury. For that offence, the maximum penalty is 20 years' imprisonment. Finally, you have been found guilty of recklessly causing serious injury to your brother, Baljinder Kumar, to whom Ms Rani was also once married. The maximum penalty for recklessly causing serious injury is 15 years' imprisonment. I must now tell you what punishment I think is appropriate for each of these crimes. I must also explain why I have decided upon the sentences of imprisonment that I think should be imposed.
I begin with a brief account of your life up to the time of your attempt in November 2003 to kill Ms Rani. You were born some 35 years ago in Garhshanker, a village in the Punjab, India. You had limited educational opportunities. You spent much of your childhood with your mother, because your father was a member of the Indian armed forces. Later, your parents were diary farmers near the town of Ludhiana, in the Punjab, and you assisted them to run that property.
The first member of your immediate family to come to Australia was your sister, Avta. She now lives at Roxburgh Park with her husband and four children. She left India when you were about 9 years old – that is, about 24 years ago. Then, when you were about 20 years old (that is approximately 15 years ago) your parents followed Avta to Australia. At about this time, you moved from Ludhiana to Delhi, where you lived alone.
You now have other relatives living in Australia. Although your father died in 2002 and your mother has since returned to India, you have - apart from Avta - a sister named Santosh who lives at Meadow Heights. She has one daughter. Your brother Baljinder also lives within the Melbourne metropolitan area. He has two children, one of them (Liam) by Mamta Rani and the other (a daughter) by a woman who I understand to have been his first wife.
You married Mamta Rani in July 1998. In your evidence, you said that this was your second marriage to her. The first took place, according to your evidence, on 3 February 1995. You also gave evidence that, about three months later, she married your brother Baljinder. This, you allege, was a fake marriage.
I do not accept this as the truth. I believe the evidence of Ms Rani that her first marriage was to your brother Baljinder in India in June 1995. She subsequently emigrated to Australia and lived with him as man and wife at 58 Ophir Street, Broadmeadows. This was also the home of your parents.
In 1997, your family decided that you should join them in Australia. They adopted a scheme, according to which Ms Rani was to divorce Baljinder and marry you. By that means, you as the spouse of Ms Rani (who was then an Australian citizen) would be permitted to enter this country as a permanent resident. Accordingly, an application for a divorce between Ms Rani and Baljinder was made in 1997. It was granted in 1998. Shortly afterwards, Ms Rani left for India to marry you.
That marriage took place in July 1998. Ms Rani then remained in India until November that year before returning to Australia. During that period she lived with her parents. I accept her evidence that you continued to live alone in Delhi. I also accept her evidence that you and she have never lived together as man and wife.
The plan behind your marriage to Ms Rani succeeded, at least to the extent that as her spouse you were granted a visa to enter Australia. You took advantage of that fact, and came to Australia in 2000. On your arrival here you too lived with your parents at 58 Ophir Street.
Within a few months of your arrival, tensions rose between you and Ms Rani. I find that the cause was your jealousy. She was living with your brother. You wanted to replace him with yourself. In December 2000, in an attempt to persuade her to make the exchange, you visited her at your brother's factory in Campbellfield. During the course of an argument which took place at the factory on 11 December 2000 you struck Ms Rani on the head with a metal bar. In so doing, you caused a three and a half centimetre wound on the left forehead extending into the hairline and down to the lining of Ms Rani’s skull. This the jury rightfully found was a serious injury. In my opinion, your action in inflicting it upon Ms Rani was callous and cowardly.
You claimed that Ms Rani invited you to the factory to talk to her. According to you, she did not tell you why. This is strange, because your account is that when you arrived at the factory she told you that she no longer wished to live with you. You did not explain, in your evidence, why she would ask you to come to the factory to tell you that. Indeed, she had every incentive to keep you away from the factory because she was, I am satisfied beyond reasonable doubt, then living at that address with Baljinder. I have no doubt that both you and your sister Santosh visited the factory on 11 December 2000 in a co-ordinated attempt to persuade Ms Rani to stop living with your brother. This explains the otherwise strangely co-incidental fact that both you and Santosh happened to be at the Campbellfield premises early in the morning, before Ms Rani left for work.
The jury did not believe your story that Ms Rani hit you with a metal rod before running out of the building, striking her head on a roller door as she did. Your counsel, Mr McIvor, nevertheless submitted that I should be satisfied that your action was unpremeditated. I think it more likely that, when you first confronted Ms Rani that morning, you were prepared to use physical force if necessary to persuade her that you must be obeyed. I am not, however, convinced of this beyond reasonable doubt. I am therefore prepared to sentence you on the basis that the decision to assault Ms Rani was made only seconds before the assault occurred.
The incident which took place on 11 December 2000 did not come to light until nearly three years later. On 10 November 2003, you arrived at the house at Jacana in which Ms Rani and Baljinder were then living. You were, during the period immediately before that time, an occasional overnight visitor. The purpose of your visits was to attempt to satisfy the immigration authorities that you were indeed married to Ms Rani and therefore legitimately living in Australia.
During the course of the evening of 10 November you became angry. This was, in part, because you had consumed too much alcohol. I am satisfied beyond reasonable doubt that your anger was also caused by the same jealousy that had affected you when you struck Ms Rani on the head in December 2000. And there was a third ingredient in the mix which led you to lose all self-control: I am satisfied beyond reasonable doubt that you were under the mistaken belief that Ms Rani was not doing all she reasonably could to ensure that you were granted permanent residence in this country.
Although it is possible to conclude with the appropriate degree of confidence that all the above contributed to the inexcusable behaviour in which you engaged on the evening of 10 November last year, it is not possible to identify the factor that brought your simmering resentment to a head. I am however prepared to proceed on the basis that your actions were spontaneous. You took a knife and with it stabbed Ms Rani on multiple occasions. She was pregnant at that time with your brother’s child Liam. This complicated her treatment when she finally reached hospital with life-threatening injuries.
The savage nature of your attack on Ms Rani cannot be overlooked in assessing the appropriate penalty. That attack resulted in multiple injuries, one of which penetrated Ms Rani’s neck and went within millimetres to centimetres of ending her life. You also stabbed her in the right ear, the chin, over the cervical spine region, in the right arm and in the hand. When she grabbed at the knife in an attempt to wrest it from you she suffered severe wounds to her fingers. According to the ambulance officers, Ms Rani lost 500 to 800 millilitres of blood at the scene.
In the same incident, you also stabbed your brother in the arm and in the chest. This too resulted in serious injury. In the case of Ms Rani, the jury were satisfied beyond reasonable doubt that you intended to kill her. In the case of your brother, the jury found no relevant intention, but was nevertheless satisfied beyond reasonable doubt that you actually inflicted serious injury on your brother, and that you did so recklessly. I am of course bound to sentence you in a way that is consistent with those jury verdicts, and with the nature and gravity of each of the three offences of which the jury found you guilty.
I must also take into account those additional matters to which Parliament, by enacting the Sentencing Act 1991, requires me to have regard. They include, among other things, your culpability and degree of responsibility, the personal circumstances of the two victims (Ms Rani and your brother Baljinder) any injury resulting from the offences, the fact that you have no previous convictions, and the presence of any aggravating or mitigating factor.
In a report dated 27 October 2004, Mr Bernard Healey gave the results of certain tests which he administered to you. These showed that you have a pro-rated verbal IQ of 63, a non-verbal (performance) IQ of 62, and a full scale IQ of 60. This places you, according to Mr Healey, "at the lowest end of the mentally defective range, where more than 99% of people [your] age would do better." I accept this evidence.
I also take into account, however, my observations of you during the giving of your evidence in your trial. You then demonstrated a capacity to deal competently with questions asked by both your own barrister (Mr McIvor) and the prosecutor (Ms Cannon). I am satisfied beyond reasonable doubt that you were and are capable of understanding the nature and quality of what you have done to both Ms Rani and your brother. I am likewise satisfied that on each occasion you knew that what you were doing was morally wrong. Yet you have shown no remorse for your actions.
After the assault at the factory, Ms Rani took out an intervention order against you. I am satisfied that she was then justifiably in fear of you. She hid herself from you until pressure from your family caused her to seek the revocation of the order and to allow you access to the Jacana house which she shared with Baljinder. It was a mistake. Your attack upon her was not only savage but has had extremely adverse consequences for her. It is sufficient to say that her self-esteem has suffered very badly as a result of the wounds which you inflicted upon her; and the broader result of that assault has been a very considerable loss of her enjoyment of life.
Fortunately for your brother Baljinder, the consequences of the injuries he received were very much less than those experienced by your other victim. And in his case you had no intention either to kill or to cause serious injury. On the other hand, I am satisfied beyond reasonable doubt that your attack upon him occurred after Ms Rani had left the scene, and at a time when Baljinder had walked out of the house in an attempt to follow her. Accordingly, your reckless attack upon your brother did not occur in the heat of the struggle with Ms Rani, but rather at a short but nevertheless distinct interval after that struggle had come to an end.
I have read the documents prepared on your behalf by some of your friends and relatives. They speak of a kindly, helpful and co-operative person. I have had regard to them in deciding what sentence I should impose upon you. On the other hand, I reject the suggestion made in one of those testimonials that, because Ms Rani was sleeping with your brother, she was somehow to blame for what happened to her. She had every right to sleep with him. Your brother was, despite the morally repugnant attempts by you and your family to entrap Ms Rani into a marriage with you without regard for her wishes, her husband. Even were that not so, what you did to her was inexcusable. You and your family used Ms Rani to further your plans to live in Australia. I have no doubt that, having taken advantage of her in this way, you then assumed the right to dictate to her with whom she should live and even whether or not she should be required to have an abortion. Her own wishes were brushed aside. I would in any event have no sympathy for the proposition that what you did to Ms Rani was understandable and (to adapt the words of the testimonial) that accordingly justice would not be done by locking you up. But in the particular circumstances of this case, the suggestion is even more insensitive and inappropriate than it might otherwise be.
I have, in fixing the sentences I am about to pronounce, taken into consideration the fact that until the jury verdicts in this case, you had no convictions. I also take into account the fact that you are likely to find life in prison particularly difficult because you are not fluent in English. Your first language is Punjabi. You will while in prison meet few persons who speak that language fluently or indeed at all.
Mr McIvor submitted on your behalf that I should not when fixing your sentence try to discourage other people from doing what you have done. Lawyers refer to this as general deterrence. Mr McIvor submitted that your low intellectual capacity has the result that you are not an appropriate person to use as an example of the punishment that those without your intellectual disadvantages should expect if they were to commit the crimes of which you have been convicted. On the other hand, you do not suffer from a mental illness, you were able to give a generally coherent account of the events of 10 November 2003 and you are capable of understanding the difference between right and wrong. It therefore seems to me that I should have regard to your intellectual capacity in two ways. First, it will make prison weigh more heavily on you than it might on a more intellectually gifted person (who, for example, might acquire a good knowledge of the English language more easily than you). Secondly, I should sentence you on the basis that in your case general deterrence is not to be discarded altogether, but neither is it to be given its usual significance.
There remains the question of specific deterrence. In my opinion this is an important consideration in your case. You have twice savagely attacked Ms Rani, in two incidents separated by many months. The evidence of the psychologist who examined you is that you have, like some of those who wrote testimonials on your behalf and like too many males throughout the world, a tendency to blame the woman for the failings of the man. You must understand that your behaviour is inexcusable no matter what part the woman might have played in creating the emotional state in which, fuelled also in November 2003 by your own voluntary consumption of alcohol, you found yourself when these serious crimes were committed.
On the count of intentionally causing Mamta Rani serious injury on 11 December 2000, I sentence you to six years’ imprisonment. You thus fall within the definition in s. 6B of the Sentencing Act 1991 of a “serious violent offender”. I will come back to the consequences of that circumstance. On the count of attempted murder of Ms Rani on 10 November 2003, I sentence you to twelve years’ imprisonment. In fixing that sentence, I have had regard, as by the Sentencing Act I am required to do, to the fact that you are now to be dealt with as a serious violent offender. The protection of the community must therefore be, and in your case accordingly is, the principal purpose for which the sentence on the count of attempted murder is imposed.
Finally, in relation to the individual counts, I turn to the count of recklessly causing serious injury to Baljinder Kumar. On that count I sentence you to four years’ imprisonment.
I must now determine the appropriate total effective sentence. In so doing, I must have regard to the requirement imposed by the Sentencing Act that, unless otherwise directed by the Court, the sentence on the count of attempted murder is to be served cumulatively on the sentence on the count of intentionally causing serious injury. In my opinion, total cumulation is not warranted; substantial cumulation is. I accordingly direct that nine years of the sentence for attempted murder be served cumulatively with the sentence for intentionally causing serious injury. I also direct that one year of the sentence for recklessly causing serious injury be served cumulatively with the other sentences. The total effective sentence is therefore sixteen years’ imprisonment. I direct that you serve thirteen years before becoming eligible for parole. For the purposes of s.6F of the Sentencing Act I direct that there be entered in the records of the court the fact that you were sentenced on the count of attempted murder as a serious offender. For the purposes of s.18 of the Act, I declare that the period to be reckoned as already served under the sentence is 395 days. I direct that there be noted in the records of the Court the fact that this declaration has been made, and its details.
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