R v Mann
[2009] VSC 536
•26 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1421 of 2008
| THE QUEEN |
| v |
| ARVINDER SINGH MANN |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2009, 6 August 2009 | |
DATE OF SENTENCE: | 26 August 2009 | |
CASE MAY BE CITED AS: | R v Mann | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 536 | |
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Catchwords: Plea of guilty – One count of intentionally causing serious injury – One count of armed robbery – Varying accounts of events between victim and accused – No prior convictions – Surrender to police – Low risk of recidivism.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Lincoln | Office of Public Prosecutions |
| For the Accused | Mr W. Toohey | Slades & Parsons Solicitors |
HER HONOUR:
Arvinder Singh Mann, you have pleaded guilty to one count of intentionally causing serious injury and one count of armed robbery. No prior convictions are alleged against you.
These offences occurred on the early hours of Boxing Day, 26 December 2007. Your victim was Shashikant Sharma, whom you had met some two weeks earlier. Your families were acquainted in India, and Mr Sharma had been asked by his brother‑in‑law in India to lend you money, which he did, and it is in these circumstances that you struck up a friendship with him.
On Christmas Day 2007, you and Mr Sharma travelled by train to the city and went to the Casino. You returned to Dandenong at about 4 or 5 in the afternoon and then drove to where Mr Sharma was living at Noble Park. Between 7 and 9 o'clock that night Mr Sharma’s landlord, Mr D'Sylva, and his sister‑in‑law came to the house to use the oven to cook food for a Christmas dinner being held elsewhere. You all partook of a shot of whisky to celebrate Christmas, and at about 9.30 Mr D'Sylva drove you and Mr Sharma to the Noble Park railway station as you were intending to return to the city. It appears that Mr Sharma had a change of heart and the two of you instead caught the train back to Dandenong and returned to Mr Sharma's house and spent the rest of the night in his room. According to Mr Sharma, he offered you something to eat and at some point he fell asleep and the next thing he recalled was being awoken by a blow to his head. Mr Sharma turned on the light and saw you standing before him holding the handle of a pressure cooker with the pressure cooker itself lying on the floor. Mr Sharma’s head was bleeding profusely and you were trying to block him from leaving the room and he cried out, “Have you gone crazy?”
You then tried to hit him with an empty bottle, but Mr Sharma deflected that blow and you then grabbed a rolling pin and hit Mr Sharma to the head several times and once on the shoulder.
Mr Sharma said that you produced a knife from your jacket and demanded his ATM card and PIN number and then demanded confirmation of the PIN number, which he gave by showing you the entry on his mobile phone.
Mr Sharma said you then lunged at him and a wrestle ensued and he wrested the knife from you, but you then picked up another knife from the table and again attacked him. At this point, Mr Sharma fell to the floor and was bleeding profusely. He then said that you stood over him and lifted his chin and cut his throat in one direction and then cut it again in the reverse direction. Mr Sharma fell on to the floor and you fled the house taking his wallet and mobile phone.
Mr Sharma tried to ring his employer, Mr Dias, and then was able to make his way next door to the home of his neighbour, Mr Malone. He collapsed at the front gate and was found there by Mr Malone.
An ambulance was called and Mr Sharma was taken to The Alfred Hospital. Upon arrival Mr Sharma was bleeding profusely. His wounds were stapled and he underwent emergency surgery to stem the blood flow. He was later assessed as having sustained five lacerations to the scalp, multiple lacerations to the neck and face, severance of the digital nerve to the index and middle fingers of the left hand, and a division of the muscles of that hand, two puncture wounds, one to the abdomen and the other to the left side of the chest, and a three centimetre wound to the back left thigh which went down to the bone.
Mr Sharma underwent a second operation on 28 December and was kept in an induced coma for seven days. He remained in hospital until discharge on 17 January 2008.
Dr Groombridge, who was called on behalf of the Crown to give evidence about Mr Sharma's medical condition, stated that there were at least two wounds to the left‑hand side of the neck, and “at least a couple of wounds” to the right‑hand side of the neck. There was no wound to the front of the neck.
These wounds had cut through to the large blood vessels in the neck, causing significant bleeding from both sides of the neck. Indeed, although the most severe wounds in Dr Groombridge’s opinion were the abdominal wounds, the amount of bleeding coming from Mr Sharma’s neck was most significant in terms of threat to his life, and I refer to this aspect of the medical evidence only to indicate the degree of serious injury suffered by Mr Sharma.
After the attack, you caught a taxi to the Crown Casino but then caught another taxi to Sunshine. In two separate instances you withdrew a total of $2,000 from Mr Sharma’s ATM account and you then returned to where you were staying at 35 Sun Crescent, Sunshine and hid the clothing that you were wearing in some bushes at the rear of that property.
Five days later, on 31 December, you telephoned the police and arranged to meet them in the city. You surrendered yourself to them. You were taken into custody and ultimately participated in a record of interview and a re‑enactment which was video recorded.
In that interview you told the police that you and Mr Sharma met in the city and went to the Casino at about 11 o'clock on Christmas Day and that you drank beer “in a pub” and then went back to Mr Sharma’s house at 6 p.m., met the owner of the house, had a couple of shots of Scotch with him and a lady, and that at about 10 to 10.30 you were dropped off at the railway station but as you had missed the train to the city you decided to return to Mr Sharma’s house.
You then started drinking again and you said that Mr Sharma made an insulting comment about your father and your religion. You became angry but then your account varied as to who initially produced the knife. You said that Mr Sharma hit you with the knife which you took from him and that you hit him with the knife three or four times in the stomach, chest and possibly the head. And then later you told the police that you had started it, but you could not remember because you were too drunk.
You did tell the police that Mr Sharma fell to the ground, that there was a lot of blood and that you thought he was dead and you then took his mobile phone and ATM card and wallet because you had no money and no job at the time.
You also told the police that you were both drunk, that you had each consumed a bottle of Scotch whisky and that if you had not hit Mr Sharma he might have killed you. You also told the police that Mr Sharma tried to hit you with the lid of a pressure cooker.
What you told the police in your interview was substantially repeated by you during the course of the re‑enactment. However, as can be seen, your account is at variance with that of Mr Sharma, who made his statement on 21 January 2008 after he had been released from hospital and almost four weeks after the event.
The presence of two empty whisky bottles in Mr Sharma’s room and his answer at the committal where he appeared to agree with the proposition that before the fight there was an argument about religion, appear to provide some support for your account. However, Mr Sharma’s account was not otherwise successfully challenged at the committal. He maintained that there was no drinking upon return to the bedroom, he explained why there was no alcohol present, and he accounted for the empty bottles of whisky. His account is supported by the noises heard by Mr Malone, the neighbour, the broken pressure cooker and the rolling pin found in the bedroom, the two knives, each with Mr Sharma’s blood and DNA, also found in the bedroom, the nature and location of the injuries suffered by him, including being cut on both sides of his neck, which he describes as having his throat cut one way and then cut the other. Although the medical evidence is that there was no cut to the front of the neck one can readily understand the victim describing such an event in such terms given that this must have been a terrifying experience. Further, you did steal the ATM card, wallet and mobile phone which had the PIN number in it and that is consistent with the demands that Mr Sharma said you made of him, as is the fact that ultimately you used the PIN number and the card.
Further, your plea to the crime of armed robbery, where the offensive weapon alleged is a knife is an admission by you that a knife was used to effect the robbery. For these reasons I am satisfied that the offences occurred as the Crown contend they did.
Your counsel, Mr Toohey, submitted that the offences were not premeditated in the sense that they were not intended, before you entered the bedroom. I accept this submission because the evidence is that the two of you spent the whole of the day together in agreeable company. As to the motive for the offences, certainly you told the police that you had no money and no job, although your counsel now submits that that was not the case. Nonetheless, you spent Mr Sharma’s money on brothels and alcohol. If this were not the motive, then the offence of armed robbery is otherwise inexplicable even if on your own account you only took the items once Mr Sharma had slumped to the floor; you having by then attacked him repeatedly with the knife, seriously injured him and thereby disabling him, on your own account whilst drunk and angry. Irrespective of the catalyst for this incident, you have subsequently engaged in a savage and vicious assault upon Mr Sharma.
Mr Sharma was 33 years old at the time of these offences. He had only been in Australia since the previous May. He was employed as a differential machinist and was the sole breadwinner for his wife and his two children who were living in India.
The victim impact statement tendered on Mr Sharma’s behalf as Exhibit A speaks eloquently of the physical, emotional, and possibly psychological consequences of your actions upon him. Mr Sharma bears the physical scars including facial scarring and he has been left with no feelings in his left cheek or the palm, index and second finger of his left hand. His speech is affected. He has problems chewing. He is not able to take weight on his left leg. He lost his job for five months. He had to move from his accommodation. His standard of work is not as high as it was previously. He has problems with his memory and he regards his life as having been turned upside down. It is apparent that he has been significantly affected by these offences. Indeed, the prosecutor submitted that his frailties are such that he could not bear to give evidence in the trial against you.
I turn now to matters personal to you. You are 24 years old. You were 23 when you committed these offences. You were born in New Delhi, the eldest son and second of three children. Your father worked hard to educate his children and you received a good education to Year 12 level at a private school. Upon leaving school you worked in the same factory which employs your father so as to fund your studies in Australia. You came here in 2005 on a student visa and studied hospitality management, gaining an advanced diploma in commercial cookery in 2008. You also studied information technology for two years, although you have yet to complete that course and while studying you worked 22 hours per week as a factory hand in a chicken factory.
Your family is caring, supportive and law‑abiding. Your offences are said to have brought great shame to them and have been the source of great distress. Nonetheless, they continue to support you in your predicament. A character reference from your sister, Kulwat Mann, tendered in evidence as Exhibit 4, describes you as a loving and affectionate brother and a responsible and caring son. Your father was intending to attend the court to support you but he is prevented from doing so by his mother’s ill health which requires his attendance in India.
You are engaged to a young woman who resides in India. You last saw her when you returned there on a visit in 2006. It is still your intention to marry and have children upon your eventual return to India. Up until these offences you had enjoyed your life in Australia. In India you had represented your country in athletics and you had continued your interest in athletics here, by joining the Sunshine Athletic Club. You are a Sikh by religion and until you came to Australia you had had very little exposure to alcohol and you were unfamiliar with its effects upon you. It appears that you started drinking alcohol when you were encouraged to do so by your workmates on your 23rd birthday, that is some three months prior to these offences.
A report by Mr Patrick Newton, psychologist, was tendered in evidence on your behalf as Exhibit 1. Mr Newton recounts the history you gave him concerning your inexperience with alcohol and that while on remand you have taken a number of courses in respect of alcohol use and that you have since gained insight into alcohol and its role in your offending.
Mr Newton describes you as experiencing depression, anxiety and shame. You have reported ongoing suicidal ideation and there has been one instance of self‑harm. It is, in his opinion, necessary that appropriate precautions be taken to protect you from further acts of self‑harm, particularly in the aftermath of sentencing.
Mr Newton has determined that you are of high average intelligence and that you have, in his words, positive potential for rehabilitation. You are at low risk of recidivism. You have developed insight into your offending conduct and alcohol use and anger management and you are motivated to reform yourself.
While on remand you have been held at the MRC but following upon an incident where you were the victim of an assault you were placed on protection and then subsequently reclassified to the youth unit at Port Phillip Prison. This unit houses inmates aged between 18 and 25 and you have been there since April 2008. Ms Hooker, the youth development officer with the unit, gave evidence on your behalf. She has had 22 years experience working with offenders and she describes you as “extremely respectful, well mannered, a polite young man”. You have impressed her as having an extremely good work ethic. You initially worked seven days a week in the kitchen and you now work as a billet which is a trusted position within the prison. All of your wages are spent on your weekly telephone calls to family in India.
You have been co‑operative throughout your time on remand. There have been no incident reports and you have enthusiastically participated in a number of programs on offer and indeed a number of certificates were tendered on your behalf as Exhibit 2. You have also participated in a small business program involved in the screen printing of T‑shirts which are sold and the proceeds go to charity. You have participated in a business course offered by the Kangan TAFE and you have sought guidance and counselling so as to make the most of your time in prison and it is said that you get on well with other prisoners in a racially diverse unit.
Your religion requires that your diet is vegetarian and although this is accommodated to a degree, your meals are prepared using the same utensils that are used to make non‑vegetarian meals which is against the tenets of your religion. Thus your diet is limited and this matter should be addressed by the authorities.
A letter written by you to the court was tendered in evidence as Exhibit 3. In that letter you confirm the matters personal which have been submitted by your counsel and you apologise for your actions and express your remorse for the pain and hurt you have caused the victim, the victim's family, your own family, and the Indian community.
It is your intention never to drink alcohol and never to re‑offend.
Your counsel, Mr Toohey, has submitted that you should be regarded as a young man who has made a dreadful mistake, one that no‑one saw coming and that alcohol played a significant part in the offending. Certainly for a young man of otherwise good character, the events were inexplicable, were it not perhaps for the fact that you did at a later time access Mr Sharma’s account and use his money. Having said that, I acknowledge that I am not sentencing you in respect of any other offences which are not before the court. Nonetheless, your subsequent actions may go some way towards explaining your conduct together with the consumption of alcohol.
In sentencing you I take into account and give you a discount for your pleas of guilty. I accept that you pleaded guilty to certain offences at the committal and on 28 November 2008 offered to plead guilty to these offences. Therefore I take into account also the time at which the pleas were entered. I take into account also that by reason of your pleas you have saved the community the cost of a trial and your victim the ordeal of one, particularly in circumstances where he is said to have been particularly distressed by the prospect of giving evidence.
I take into account also that you surrendered yourself to the police and from that point on you co‑operated with them and that you admitted in the course of your interview to having caused serious injury and to the taking of the wallet and the ATM card.
I also take into account, also, your age, now, and when you committed these offences and that you have no prior convictions and that you are otherwise a person of good character. I take into account also that by reason of the sentences to be imposed upon you, you will be serving a significant sentence of imprisonment in a foreign country, away from the solace and comfort of regular family visits and that the prison environment does not readily accommodate your cultural and religious requirements.
I take into account also that with the continued support of your family, your resolve not to re‑offend and not to consume alcohol, and with the prospect of married life and employment in India, I accept that your prospects for rehabilitation may be said to be excellent.
I take into account also that you are remorseful for your actions and ashamed, that you have gained insight into the nexus between alcohol, anger and your offending conduct. I take into account also that you have been assessed as having high average intelligence, that you have used your time on remand productively, that you have a good work ethic, that you are well regarded and well conducted within the prison environment.
In short, I take into account all matters which go in your favour.
Against this stands the nature and gravity of the offences here committed. The maximum penalty for the crime of armed robbery is 25 years’ imprisonment and for intentionally causing serious injury 20 years’ imprisonment. Irrespective of whether you were drunk or not, although it is accepted that you consumed alcohol on the night, and irrespective of whether at some point you were responding to a perceived insult, you nonetheless savagely and brutally assaulted your friend, principally with the knife, resulting in injuries which individually and compendiously are serious. He has not fully recovered from them and continues to suffer the physical and emotional consequences of your actions.
Further, having left him slumped on the bedroom floor, you then took his wallet, mobile phone and ATM card, having previously demanded the latter from him and you left him in that room, when his condition must have been obvious to you, because he was bleeding profusely and you told the police that you thought he was dead.
In these circumstances, your vicious assault is compounded by a total and utter callous disregard for your victim.
It follows that in these circumstances your conduct must be seen to amount to a serious example of two serious offences, although I have viewed the offence of intentionally causing serious injury as here committed to a greater degree than the armed robbery, by reason of the nature of the injuries sustained and the wielding of the knife.
Any sentence I impose must therefore act in denunciation of your conduct and serve to punish you and must also signal to like minded people that such utterly reprehensible conduct will be met with condign punishment. I accept however that in the circumstances before me specific deterrence may be given less weight.
Accordingly I propose to sentence you as follows: For the offence of intentionally causing serious injury, being Count 2 on the presentment, eight years’ imprisonment. For the offence of armed robbery, being Count 4 on the presentment, three years’ imprisonment. Although these offences essentially arise out of the one incident, nonetheless, the armed robbery was a discrete offence and one which you opportunistically completed after Mr Sharma had slumped to the floor. Accordingly, I propose to order that one year of the sentence in respect of armed robbery be served cumulatively with the sentence imposed in respect of the offence of intentionally causing serious injury. That is a total of nine years’ imprisonment. In order to address your prospects for rehabilitation, and mindful that upon your release into the community you will be deported to India, I propose to order that you serve a non‑parole period of seven years and I declare that you have already served by way of pre‑sentence detention a period of 603 days. I declare pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty, I would have sentenced you to a total effective sentence in the vicinity of 11 years’ imprisonment with a non‑parole period of nine years.
I have signed the orders pursuant to s 464ZFB in relation to retention of the forensic samples and I have also signed the disposal orders.
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