R v Pahwa

[2008] VSC 619

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1658 of 2008

THE QUEEN

v

JASPREET PAHWA

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2008
DATE OF SENTENCE:	4 December 2008
CASE MAY BE CITED AS:	R v Pahwa
MEDIUM NEUTRAL CITATION:	[2008] VSC 619

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Catchwords: Criminal law – Sentence – Unlawful and dangerous act manslaughter – No premeditation – Remorse – Foreign national.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C. Barbagallo	Office Of Public Prosecutions
For the Accused	Mr T. Danos	C. Marshall & Associates

HER HONOUR:

1. Jaspreet Pahwa, you have been found guilty by jury verdict of manslaughter.  No prior convictions are alleged against you.

1. In August 2007, you were sharing a house in St Albans with three other students, including the deceased Tanvir Singh Kohli.  You and he had been friends in India, and you both came to the Australia to study commercial cookery.  You had only been in this country a month and Mr Kohli had been here only 22 days.

1. On 23 August 2007, you, Mr Kohli and another housemate, Gurpreet Singh, were in the kitchen starting to prepare dinner.  You were washing dishes and an argument broke out between you and Mr Kohli concerning $200.  You were upset that Mr Kohli had telephoned his father in India about the money and that he in turn had telephoned your father who then had rung you.  The argument became heated and at one point you raised a frypan in Mr Kohli's direction but thought better of it and put the frypan down.

1. The argument then abated but flared again when Mr Kohli used an abusive expression, and the two of you then became abusive towards each other.  Mr Kohli, who had been seated on a stool, picked it up, turned it upside down and raised it above his head.  He advanced towards you and you advanced towards him.  Gurpreet Singh stood between the two of you and attempted to stop Mr Kohli from further advancing.  Mr Singh took hold of either the legs of the stool or Mr Kohli and you were pressing at Mr Singh's back.  Mr Singh said in evidence that he thought Mr Kohli was going to injure you, and you told the police that Mr Kohli hit out at you.

1. You picked up a knife and stabbed Mr Kohli resulting in what the pathologist, Dr Burke, described as a classical stab injury to the deceased's back.  Although there was one injury there were two tracks, one of which was 14 centimetres long which penetrated the aorta, left kidney and left renal artery and vein causing torrential haemorrhaging.  This track was horizontal. The other, which was shorter, went forward towards the navel and missed the colon.

1. In Dr Burke's opinion the degree of force required to inflict the injury was mild to moderate and the cause of death was a stab injury to the back.

1. Mr Kohli collapsed on the floor and you went to the sink and washed your hands and the knife.  Mr Singh told you to ring 000, which you did, but it appears that you were too overcome to speak and Mr Singh spoke to the operator while you applied mouth‑to‑mouth resuscitation and CPR, but to no avail, and Mr Kohli was dead by the time the police and ambulance arrived.

1. You were arrested at the house and interviewed by members of the Homicide Squad at the Sunshine Police Station and at the offices of the Homicide Squad.  You maintained throughout the interview that you did not intend to injure Mr Kohli, that he had been coming at you, and that you picked up what came into your hands, which was the knife, and used it in a reflex action (q. 309), that it was an accident and that you were defending yourself and this the jury clearly rejected, although they were not satisfied that you intended to kill or really seriously injure Mr Kohli as you were acquitted of murder.

1. When asked in the interview how often you swung the knife at Mr Kohli you said, "One, maybe two times.  The one time I hit him, the other time nothing happened" (q. 277).

1. Mr Kohli did have other injuries, one to the left cheek measuring 0.8 centimetres, the base of the left thumb and the left arm just below the elbow, all said by Dr Burke to be consistent with a knife, and apart from the injury to the cheek described by Dr Burke as defensive injuries.  Mr Kohli also had two scratches on his right thumb.  The evidence does not reveal how these injuries were occasioned.  You were uninjured.

1. The maximum penalty for the crime of manslaughter is 20 years' imprisonment and in this case the crime was committed in the form of unlawful and dangerous act.  The Crown submits that the nature of your offending places this in a serious category of instances of this offence because Mr Kohli's death was the result of a trivial dispute, a knife was employed more than once, and the Crown submitted that you inflicted the injury in anger.

1. Your counsel, Mr Danos, submitted that your offending falls within the medium to lower range of instances of this offence and indeed he described it as a common example of manslaughter, being a spur of the moment act of stabbing resulting in one fatal injury.  Mr Danos relied upon your answers in the interview and the fact that there was only one stab injury, although there were two tracks, and that you maintained you had only hit him once and that Mr Singh did not see you employ the knife at all.

1. It is common ground that the incident occurred very quickly in a short period of time and in a confined space.  I accept that there was no pre‑meditation on your part and although the Crown contend that you wielded the knife in anger, you maintained, and your stance is supported by Mr Singh, that Mr Kohli was advancing towards you.  Of course, Mr Singh was at all times during the jostling standing between you and Mr Kohli so that it was in fact never necessary for you to pick up anything, let alone a knife.  In this regard I accept that you over‑reacted to the situation that presented itself to you.  Nonetheless, given the speed at which the events escalated and unfolded, and the lack of premeditation on your part, I would accept Mr Danos's categorisation of your criminality.

1. Nonetheless you have committed a serious offence resulting in the untimely death of Mr Kohli.  Victim impact statements made by Mr Kohli's father Davinder Kohli and his brother Ishudeep Singh Kohli were tendered on the plea as exhibits A and B respectively.  Mr Kohli was 25 at the time of his death.  This was the first time he had left home.  His father, widowed 12 years ago, had brought he and his brother up as a sole parent and his younger brother describes Tanvir Kohli as his inspiration.  Your actions have caused immeasurable distress to a loving father and brother and nothing can restore their loved one to them.

1. You are now aged 27.  You were 25 when you committed this offence.  Although you were supported during the trial by your father, he has now returned to India and you are in this country on your own.  Your father operates a waste paper business in Delhi and your mother is employed in the ladies' garment manufacturing injury.  You have one brother.

1. Testimonials tendered on your behalf as Exhibit 1 describe your family as God fearing and hard‑working and that you are regarded as hard‑working, studious, sincere and a good boy.

1. You were educated to Year 12, and upon leaving school worked in your uncle's restaurant, hence your interest in cookery.  You were also employed in your father's waste paper business, and at a call centre.  You came to Australia to study commercial cookery and it is said that you saw this as an opportunity to better yourself, as the qualification would provide employment anywhere.  It is now highly unlikely that you would be able to complete that course as it is a four year course and it is likely that your visa will have expired by the time you are released and that you may well be deported upon your release.

1. I accept that in these circumstances your chosen career is at this time denied to you.  I accept also that you will be serving your sentence without the support and solace of visits from family members and that therefore any sentence imposed upon you will be more burdensome than would otherwise be the case.  I accept also that you have no prior convictions, for although the matter has not been formally proved it is unlikely that you would have been able to obtain a student visa if you did have criminal convictions and the Crown does not allege any prior convictions against you.

1. I accept also that you are a person of good character and that you have the support of your family and that at the age of 27 you are still a young man and that every effort should be made to achieve your rehabilitation.

1. Your counsel has submitted that you are remorseful for your actions and I accept that you are.  Throughout your interviews your demeanour appeared to be one of disbelief that your actions had resulted in the death of Mr Kohli and although you did not express your remorse in so many words, I accept your demeanour, your sentiments, bearing in mind that English is not your mother tongue, your cooperation with the police and frank admissions in the interview, and your efforts to revive the deceased all suggest that you were genuinely remorseful.

1. In sentencing you I take into account the nature and gravity of the offence here committed, and the need to pass a sentence which will serve to punish you and act in denunciation of your conduct.  Although I am satisfied that by reason of your previous good character and the manner of your offending that specific deterrence may be given less weight than would otherwise be the case, I take into account also the need to pass a sentence which will signal to like‑minded members of the community that the use of knives, either in anger or for any reason resulting in death is not tolerated and will attract condign punishment.

1. In sentencing you I take into account all matters which go in your favour, including your age, your good character, your lack of prior convictions, your remorse, your prospects for rehabilitation and that you will serve your sentence away from the ameliorating effects of visits from family and loved ones.

1. Accordingly for the crime of manslaughter you are convicted and sentenced to seven years' imprisonment.  I propose to order that you serve a period of five years before being eligible for parole.

1. I declare that you have already served by way of pre‑sentence detention a period of 469 days.

1. I have also made the disposal order.

1. Mr Pahwa, I have ordered that the DNA sample that you provided remain on the database and I have done that because of the seriousness of the offending conduct.