R v Shankar - [2004] VSC 132

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1421 of 2003

THE QUEEN

BIJAY SHANKAR

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16, 17 and 20 FEBRUARY, 2 APRIL 2004
DATE OF SENTENCE:	7 APRIL 2004
CASE MAY BE CITED AS:	R v BIJAY SHANKAR
MEDIUM NEUTRAL CITATION:	[2004] VSC 132

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Sentence – Intentionally causing serious injury – Husband stabbed wife – Offender had a history of mental illness – Breach of intervention order – Whether offender suffering from a mental disorder at time of offence - Sentenced to a total of 7 years' imprisonment with a minimum of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Williams	Office of Public Prosecutions
For the Accused	Mr D. Whitchurch	Victoria Legal Aid

HIS HONOUR:

Bijay Shankar, you have pleaded guilty to a charge that, at Pascoe Vale on 16 July 2002, you without lawful excuse intentionally caused serious injury to Minakshinee Ekta Shankar. I must now sentence you for that crime.

You were born in Fiji on 1 December 1976. You are now, therefore, 27 years old. You had an inauspicious childhood. You never knew your father. You have no brothers or sisters. Your mother suffered from catatonic schizophrenia, with prominent paranoid delusions. Before you were born, she was on at least three occasions, but possibly as many as eight, admitted to hospital for this condition. During those years, she made several unsuccessful attempts to commit suicide. It is a tragedy that, two years after you were born, she succeeded.

In those circumstances, you were fortunate to be raised by your mother's parents. They lived on a small sugar plantation not far from Suva. Life was hard. You completed primary school and had some three years of secondary schooling. But your education had its own difficulties as you sought, not with entire success, to find your place in the school community. Your experience then may well have been covered by what Dr Wood, the psychiatrist who at the request of the Court prepared a pre-sentence report about you, described as your "considerable psychological vulnerabilities". You nevertheless achieved what many children have great difficulty in doing. You acquired a second language. Your first is Hindi. You also speak English.

When you were 12 years old, or perhaps a year older, your grandparents migrated to Australia. You were then placed in the care of an aunt and uncle. This was an unhappy extension of an unhappy time at school. Your uncle was a bully. You were the victim of his misbehaviour. Your suffering was both physical and mental. You left school at about the age of 15, and commenced work in a factory.

This situation continued until you were 17. You then became once again the beneficiary of your grandparents' kindness. They adopted you. This enabled you to apply for, and be granted, residential status in Australia as their child. You came here to live in 1993. They had a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shankar

Details

AGLC: R v Shankar [2004] VSC 132
Case: [2004] VSC 132
Decision Date: 7 April 2004

CaseChat Overview and Summary

In the recent case of R v Shankar, the defendant was convicted of intentionally causing serious injury to his wife. The incident occurred in the context of a breach of an intervention order, with the offender having a documented history of mental illness. The case was heard in the Supreme Court of Victoria, where the sentencing of the offender was determined. The primary legal issue before the court was the extent to which the offender’s mental health condition at the time of the offence should mitigate his sentence. The court was tasked with balancing the seriousness of the crime with the offender’s mental health history.

The court considered the offender’s mental health records, expert psychiatric opinions, and the severity of the injuries inflicted. The judge highlighted the offender’s history of mental illness, including previous hospitalisations and treatment, and examined whether these conditions played a significant role in the commission of the offence. The court determined that, while the offender’s mental illness was a relevant factor, it did not absolve him of responsibility for his actions. The court ultimately concluded that the sentence should reflect both the gravity of the offence and the offender’s mental health circumstances.

The offender was sentenced to a total of seven years' imprisonment with a non-parole period of four years. The court emphasised the need for punishment and deterrence, given the severity of the injuries caused and the breach of the intervention order. The sentence also took into account the offender’s mental health, with provisions for appropriate medical and psychological treatment during his incarceration. This decision underscores the court’s approach to balancing criminal accountability with the recognition of mental health issues in sentencing.

Orders