R v Singh
[2013] VSC 47
•8 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0082 of 2012
| THE QUEEN |
| v |
| JATINDER SINGH |
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2012 | |
DATE OF SENTENCE: | 8 April 2013 | |
CASE MAY BE CITED AS: | R v Singh | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 47 | |
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Plea of guilty – 2 charges - intentionally cause injury and intentionally cause serious injury. Bizarre circumstances – complicated sexual relationships – loss of temper – life-threatening injuries – remorse – threat of deportation. Accused 34 yrs old – no prior convictions.
Sentence: 7 years imprisonment – minimum term 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford S.C. | The office of Public Prosecution |
| For the Accused | Mr J Hannebery | Emma Turnbull solicitors |
HER HONOUR:
Jatinder Singh, you have pleaded guilty to two charges. The first being that of intentionally causing injury to Dilbag Singh Bhuller, and the second charge being intentionally causing serious injury to Kuldeep Singh Virhia, both of those offences occurring on the same occasion, being 17 December 2011. You are now 34 years of age, having been born in India and you have no prior convictions.
The circumstances of this offending are to a large degree bizarre, and a little background is required before there can be any explanation of what occurred on the day.
In December 2006, you arrived in Australia to commence a course in hotel management at the Delhi International College in Bourke Street, Melbourne. You moved into a unit in Clayton at that time and ultimately shared those premises with a person by the name of Kuldeep Singh Virhia, the victim on the second charge. You were very good friends and you shared that unit for some years, up to and including the time that the Bhuller family moved in next door, being Dilbag Singh Bhuller, his wife Ramandeep Bhuller and their son Harnoor Bhuller. You, Kuldeep, Dilbag and Ramandeep were all from the Punjab in India originally, and as a result you all became friends.
Your friend, Kuldeep Virhia, who was aged about 24 commenced an affair with Ramandeep Bhuller, the wife of Dilbag Bhuller, sometime after they became your neighbours. You became aware of the affair as your friend, Kuldeep Virhia, told you of the relationship. Dilbag Bhuller was unaware of that relationship between his wife and Kuldeep Virhia. It is unclear at what point you became aware of the relationship and whether it was before or after you, in fact, commenced an affair with Ramandeep Bhuller. Your relationship with Ramandeep Bhuller commenced in 2011, and in your case neither Dilbag Bhuller nor Kuldeep Virhia were aware of the sexual relationship that you were having with Ramandeep Bhuller. All four of you decided to move to premises at 36 Comber Street in Noble Park and share a house. As well as the four adults the child Harnoor also moved with you.
The Crown have indicated that the affair with Kuldeep Virhia continued after you all moved to Noble Park but that it ceased when Virhia moved out of the premises. The people remaining in the house at that stage were you, Dilbag Singh Bhuller, Ramandeep Bhuller his wife, and their son Harnoor Bhuller. It would appear that you thought or believed that Ramandeep Bhuller was going to divorce her husband and marry you. However, it was not her intention. She was in fact trying to end the relationship with you and she had told you that she was not prepared to leave her husband.
You had developed a severe dislike of Dilbag Bhuller as a result of your jealousy of the relationship he had with his wife, Ramandeep, together with the behaviour he had demonstrated to you about which you took great offence. That behaviour related to, first of all, his drinking and, secondly, references or comments he would make about your mother and sister who still lived in India. It would appear that you idolised your mother and you took comments that he made particularly to heart. By November of 2011, you were still living in the shared house in Comber Street and were sleeping on a mattress in the loungeroom, but that Kuldeep Virhia had left and was living elsewhere.
On 16 December 2011, you had invited Kuldeep Virhia to come over to the premises in Noble Park. He arrived at about 10pm, but you had gone to work, as a result he called you and you said you would skip work and come home. When you arrived home you and Kuldeep Virhia decided to go out for a drink, going to the Waltzing Matilda Hotel in Kuldeep’s car. You arrived there at about 12.48 am on the morning of 17 December 2011. At the hotel you had one beer and Kuldeep Virhia had two.
You expressed your anger to Kuldeep Virhia, about Dilbag Bhuller, in respect to him verbally abusing you and your family, behind your back. You asked Kuldeep Virhia to help you bash Dilbag – he refused and advised you against doing anything to Dilbag. You stayed at the hotel for approximately half-an-hour and then returned to the premises in Comber Street. When you arrived back, Dilbag was still awake and lying on the couch in the loungeroom area. Ramandeep Bhuller was in her bedroom with her son Harnoor. You and Kuldeep Virhia sat down for a short time before you confronted Dilbag, by standing in front of him and yelling – asking why he had abused you. You then started to punch him to the face and the body. Kuldeep Virhia told you to stop. Dilbag got up off the couch and attempted to run away, you grabbed him and threw him onto the mattress next to where Kuldeep Virhia was sitting and continued to punch him to the face. Kuldeep Virhia then grabbed you and pulled you away, at which stage Dilbag was able to escape, and he ran into the bedroom where his wife and son were, and held the door shut.
These actions constitute the offence of intentionally causing injury to Dilbag Bhuller. Unfortunately, you did not stop at this point. You started to push on the door of the bedroom, trying to force your way in. Kuldeep Virhia had followed you to the bedroom telling you to stop, whilst Dilbag yelled out at you that you couldn’t come in, that it was a family room.
Ramandeep, meantime, was on her mobile phone calling triple 000 for police assistance. You continued to try to force open the door of the bedroom. You then became angry with Kuldeep Virhia, asking him why he didn’t help you to bash Dilbag, and why he was trying to stop you.
The next area is somewhat disputed, in that, Kuldeep Virhia says that you reached under a shoe rack in the hallway and produced from it a large silver kitchen knife, described as having a nine inch blade and a five inch handle. You, however, maintain that you went to the kitchen and obtained the knife – disputing that it was hidden in the shoe rack. The Crown do not pursue a finding from me on that matter and I am prepared to act upon what you told the police, as to how you obtained the knife.
However, having obtained that knife, you then held it, initially with the blade pointing towards the ceiling, as Kuldeep Virhia was standing between you and the bedroom door. You then demanded that Kuldeep open the door. He refused and then you pointed the knife at him and said, ‘Open the door’. When he refused you advanced, pointing the knife towards him. He stepped backwards into the bathroom, which was next door to the bedroom, and you went into the bathroom and asked him ‘Why did you do that’. Before there was any response, you stabbed him in the stomach and then in the chest. He began to bleed quite profusely and called out for help, to Dilbag and Ramandeep, saying he’d been stabbed. You left the bathroom and began searching around the house for something. It is not known what you were searching for at that time. You then returned to the bathroom and Kuldeep asked you why did you do this, to which you replied, ‘You deserve to be killed as well’. You then stabbed him again, although Kuldeep is unable to say in his statement exactly where. What can be noted is, that he suffered a total of nine stab wounds to the chest and the abdomen area. I will deal with the injuries and the consequences shortly, but these are the actions which constitute the second charge on the indictment, that of intentionally causing serious injury to Kuldeep Virhia.
You left the bathroom again after having stabbed Kuldeep a number of times, and he made it into the loungeroom, obviously in a bad state. You, again, tried to get into Dilbag and Ramandeep’s bedroom and when you were unable to, you went outside the house. You approached the bedroom window and using the knife, you cut the flyscreen open and tried to force the window open. As a result, whilst Harnoor remained in the bedroom, Dilbag and Ramandeep fled. Dilbag went down the street and hid in a neighbour’s front yard, Ramandeep ran into the backyard, continuing to try to speak to the police through the triple 000 operator. You ran around from the front to the rear of the house, still carrying the knife and when you saw Ramandeep, you grabbed the phone from her, disconnected the call and put her phone in your pocket. She ran into the house to get her son. She saw how badly injured Kuldeep Virhia was and threw a towel in his direction, but was too frightened to stay, picking up her son Harnoor and running away down the street, where they hid behind a tree. You, again, went back into the house and began to look for your car keys. You couldn’t find them and you asked Kuldeep Virhia for his keys, which he gave to you and you then drove off in his car.
Meanwhile, Kuldeep Virhia used his own telephone to call an ambulance. Sometime after you had driven off, Dilbag and Ramandeep returned to the house and provided some first aid to him. The police arrived at 1.56am and administered what first aid they could before the ambulance arrived at 2.05am. Kuldeep Virhia was taken to the Alfred Hospital and, on admission, he was unconscious and placed on a ventilator, for support of his life-threatening condition.
As noted in a letter from the Alfred Hospital to the Department of Immigration sent to enable his parents to come to this country :
Mr Kuldeep Virhia is in a critical, life-threatening condition in the intensive care department of the Alfred Hospital in Prahran, Melbourne. He is unconscious and on ventilatory support with on-going intensive care needs which will be required for an unclear amount of time.
What you did after leaving the house was, you contacted a friend by the name of Ravi Kumar, a taxi driver. You told him that you needed money, that you’d had a fight with Kuldeep Virhia and that you hit Kuldeep with a knife, in self-defence. You needed the money and help to get away. Your friend lent you almost $200, but told you that you ought to hand yourself in to the police. You then drove back towards Noble Park, throwing the knife out of the window, somewhere on the Monash Freeway. You stopped and used Ramandeep’s phone to call Dilbag’s number to try to speak to Ramandeep. Dilbag answered the phone, it was then taken by a police officer, who advised you to surrender yourself and you agreed. You arrived back at Comber Street, Noble Park at 2.48am and you were arrested.
In your record of interview you confirmed most of the matters to which I have just referred and in particular, admitted the anger you had towards both Dilbag, over his comments about your family and treatment of his wife, as well as your anger with Kuldeep Virhia for not helping you to bash Dilbag Bhuller, as you had requested. Importantly you said, that whilst you were angry at him, you were not angry enough to kill him.
You described yourself in the interview as being angry and ‘not in your senses’.
Whilst these are somewhat bizarre circumstances, the consequences have been horrific. Part of the material I was given was a copy of the Alfred medical file on Kuldeep Virhia, to which I have already referred.
The operative findings are referred to in that document and the operation preliminary report, dated 17 December 2011, in which it listed a number of injuries, including that he had multiple entry wounds in the lower chest. The injuries that you caused to Kuldeep Virhia included, what are described as, four through and through stab wounds to the small bowel, the mid ileum, the proximal jejunum and two lacerations to the liver; with five further stab wounds in the area equivalent to the nipple. There was protruding bowel, profuse bleeding, collapsed lung – all of this required a number of operations, there was in excess of 110 stitches and a significant time spent in intensive care, recovery, hospital in the home and, ultimately, rehabilitation. The victim impact statement details, just some of the physical matters that now affect Kuldeep Virhia including pain, particularly on his left side, scarring, a stomach that still hurts because of the laparotomy surgery of his nine wounds. He says, that six of the wounds still trouble him and he feels like a knife is still entering him, when they are sore. He is unable to play sports any longer, as a result of the shortness of breath, due to his collapsed lung and surgery. His part time employment, his ability to maintain himself and his studies, were all adversely affected, whilst he was trying to recover from this assault upon him. His parents had to come to Australia, an uncle came from Canada and, ultimately, he has now returned to India, even though he had intended to remain and pursue employment in this country. He is not surprisingly untrusting of people, frightened and traumatised.
I have described this is as a bizarre crime, and that is because it seems quite inexplicable. You were not affected by alcohol, you do not claim to have been affected by any illicit drug. You have been seen by a psychologist, Warren Simmons, who indicates that you suffer from no psychiatric or psychological disturbance, no thought disturbance or perceptual disorder. This crime really remains to a large degree inexplicable, except to say that you got angry. It is hard to understand your anger with either, Dilbag Bhuller, or Kuldeep Virhia. In terms of Dilbag Bhuller you were conducting an illicit, extramarital affair with his wife, therefore you could only be described as deceiving him, and in terms of Kuldeep Virhia, your anger appeared to be directed towards the fact that he would not assist you in bashing Dilbag Bhuller. A far from normal or rational explanation for your anger.
The crime of intentionally causing serious injury to Kuldeep Virhia is a bad example of that crime. You have stabbed him nine separate times, and on two separate occasions. Stabbing him when he was initially inside the bathroom, leaving the bathroom, searching the house for an unknown item and then returning once again, and saying to him “you deserve to die” and stabbing him on that second occasion. Anger as an explanation does nothing to reduce the criminality involved. You have caused great suffering and long term problems for Kuldeep Virhia, he is no longer able to remain in this country, he has both the physical and psychological problems that would be expected from the infliction of such serious injuries.
The community, rightly, abhors violence of this level occurring as a result of someone’s anger, our society is constructed on the basis of people maintaining self control and respecting the laws and mores that govern our society. A loss of temper, for whatever reason cannot excuse or mitigate in any way the seriousness of offending of this nature, particularly when there is no real explanation for the loss of temper or the display of anger.
I also have to take into account your personal circumstances. You, like the victims in this case, were born in the Punjab area of India in a place called Amristar. Your father was a soldier in the Indian Army and as a result you and your two siblings, being an older sister and a younger sister, moved around the countryside to different army bases, dependent upon where your father was then currently stationed.
In 1998 your father retired from the army and then worked as an accountant until he suffered from heart disease problems in approximately 2009. Your mother has always been involved in home duties, with you and your two sisters and she is aged 61 and your father 62. You older sister, Amritpal Kaur is aged 36 and your sister Rajpal Kaur is aged 32. They are both teachers. When your father retired, you returned as a family, to the town in which you were born and your parents still reside there. You had a happy childhood. Your father and mother were to a degree religious, as were you, as you were growing up and you lived a very organised and disciplined life with your parents. You father you described as a strict man, but one who was always consistent in his religious and cultural views. You were very close to your mother and in light of the fact that whilst at the army bases you had to share a bedroom with your two sisters you remain equally close to them.
In terms of your education, you struggled in maths and English at school, failing Years 5 and 9, both of which you repeated. You completed Year 12 and for the next five years undertook further studies including, completing a Bachelor of Arts Degree and then spent two years completing, a diploma in vocal music – both being completed by correspondence. You aspired to be a singer, with your ambition being to be part of the Bollywood Industry. That did not eventuate and you started employment working for an automotive finance company, followed by a position in a pharmaceutical company, as a sales representative. You left that to come to Australia to study hotel management, saying that you wished to be a cook. You were granted a visa and came to Australia in December of 2006.
Your family in India paid for your flights to Australia and the fees for your courses. The study, in relation to that course, went on for two years and you completed it in November 2008. You qualified with a diploma in retail bakery and a diploma in business management. Having completed the course, you did not pursue it, as you said you did not enjoy that as a career.
You have been employed consistently since your arrival in Australia, first, when you commenced driving taxis and also you worked at a firm of auto spare parts, located in Broadmeadows. You moved to Broadmeadows for a short time whilst you were doing that job, and went back to Clayton when it ceased. You continued driving taxis on the 3.30pm to 4am shift from 2007 until you commenced working as a process worker at Cadburys in 2010. That factory was in Ringwood. You were still employed in that position when this offending occurred.
You have described your parents and family, as being shocked and appalled by your actions, in the information you provided to Mr Simmons, the psychologist. You rarely drink, you do not use any illegal substances, and your only bad habit appears to be smoking cigarettes.
Prior to your relationship with Ramandeep Bhuller, it would appear that you had had no sexual relationship at all, with a female. Whilst in India you had a relationship with a young lady for a two year period, but it appeared to be platonic, and more of a friendship. The affair with Ramandeep Bhuller was, of course, secret and tense, because of the nature of the relationship, undoubtedly making it more exciting than the relationship would otherwise have been.
I also received a number of references in relation to you, being five in total. Those references are all virtually identical in wording and Mr Hannaberry explained how that came about, and I accept that explanation, and draw no adverse inferences from that wording. What comes through the references is that your referees consider you to be a kind, gentle, law-abiding, religious man – all of which is inconsistent with your actions on this day. It is, as I said, inexplicable. Despite it being inexplicable, I still have to sentence you for the offences.
In terms of the offending with regards to Dilbag Bhuller, that would normally not attract a custodial sentence and you would probably be released on a community corrections order, or potentially even a fine, but the premeditated nature of that must be noted, as must the fact that this occurred in the presence of his wife and their young child. Your offending in respect of Kuldeep Virhia is, on the other hand, extremely serious. He almost died. It was a savage and brutal attack. It was as a result of your anger, your totally unreasonable anger, that you held towards him. It is at the higher end of offending of this nature, due to the fact that it was prolonged, vicious and with such potentially serious consequences. Further, that it was in the presence of a child, that the attack occurred on an unarmed man, who was attempting to stop you from inflicting injury on another unarmed man, in the presence of his wife and child. The courts cannot accept that this behaviour is anything other than extremely serious.
It should be noted, in respect of your time in incarceration, that you have received little in the way of visits from anyone. The only person being, your friend Ravi Kumar who has been to visit you. No other person who provided a reference has, on the information provided to me, been to see you. Your family of course is in India and that means that the time in prison will be lonely and without the family support that most people would have.
Further, it was submitted that you are in all likelihood going to be deported at the completion of your sentence. I am not in a position to state, as a matter of certainty, whether you will or you will not be deported back to India, but I do concede that, on the material placed before me, in terms of the legislation, it is likely that you will be returned to India. Your counsel submitted, that I need to make an allowance for your loss of opportunity to remain in Australia. I find that a difficult concept, as although I find it likely, it is not something of which I am satisfied beyond reasonable doubt.
Your counsel relied upon the decision of R v Guden[1] as demonstrating the principle that I should mitigate your penalty on two basis, first, your loss of opportunity to remain in Australia and, secondly, that the burden of imprisonment will weigh more heavily upon you as you ruminate upon the prospect of deportation. The passage relied upon by counsel is found at paragraph 27
[1][2010] VSCA 196
As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the Court there did, this may well be viewed as a serious ‘punishing consequence’ of the offending.
I am bound to follow the decision of that Court, and I will do so. But in doing so I would refer to what that Court said in the following paragraphs.[2]
Of course, as this Court made clear in Griffiths, the sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed – as in Griffiths – as a ‘completely speculative possibility’
What Nettle JA said in R v Tabone, in relation to the comparable question of the risk of confiscation of property following a conviction, applies with equal force here. That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.
In the present case, the appellant was treated a good deal more generously in this respect than he was entitled to expect, given the complete death of evidence about the real likelihood of his deportation.
[2]Ibid para 28, 29 and 30
Here counsel has submitted that the legislation, being the Migration Act 1958 (Cwth), when examined, as a result of s 501(7), would make it likely that because you are an applicant for permanent residency and are on a bridging visa the application would likely fail the character component of the residency application once you are imprisoned for 12 months or more. It is my view, that although I think that is likely, that is the highest I can put the matter, and I am not in a position to determine what weight should be given to that matter, as it remains a matter of discretion for the relevant Minister. The information provided to me has been no more than a copy of the relevant legislation and that does not enable me to make an accurate or reliable assessment of what the Minister may, or may not, do in all of the circumstances.
I will take into account that you will be concerned about that possibility of deportation occurring at the end of your sentence, but I do not attach great weight to that matter, as I have already determined that your time in custody will be more difficult than the average prisoner, on the basis that you are serving your sentence in a foreign country without any family support, and with very few supporters or visitors during your time in custody up till now, and with no expectation that there will be any significant change to that status in the future.
I also take into account in your favour your plea of guilty. When arrested you made admissions and were prepared to plead guilty to these offences prior to the committal proceedings. So I accept that it was an early plea, and that it was indicative of some remorse. I act upon the basis that you are remorseful for your conduct and that you have referred to accepting full responsibility for your actions.
You have no prior criminal history, and with the character reports tendered, I accept that you were a person of good character until the offences occurred on this day. There is no doubt that your actions surprised everyone, possibly even yourself, and there is no real explanation as to how you came to be in such a state of anger, that committed these vicious assaults. Mr Warren Simmons, psychologist, found that you had no psychiatric issues, violent or aggressive tendencies or anti social traits. He does not expect you to offend again in this manner. I would add that no one expected you to offend in this manner when you did, and that is a cause of some concern to me. Your anger was out of character and inexplicable on the night, and I am not entirely confident that given the right constellation of factors, your anger and rage may not flare again, albeit with the same or different outcomes.
Accordingly, although your counsel submitted that specific deterrence was not an issue that I should take into account in sentencing you, I do not agree. I think it is important that you understand, and that I make clear through this sentence, that you be personally deterred from committing any such offending, involving your loss of control and outburst of anger, again. General deterrence is an important consideration in a sentence for offending of this type.
Counsel submitted that you should receive a sentence below the median range sentencing statistics for the offence of intentionally cause serious injury, which he submitted was four years. I cannot accede to such a submission, as it would not reflect the totality of the matters which I have to consider in your case.
Balancing all of the factors to which I have referred, including, but not limited to, your plea of guilty and the stage at which it was entered, your previous good character, your remorse, your personal circumstances, your potential deportation, with the need for both specific and general deterrence, just punishment, denunciation and the need to impose an appropriate sentence, you are convicted and sentenced in respect of Charge 1: the charge of intentionally causing injury, 2 months imprisonment. In respect of Charge 2: 7 years imprisonment. Both sentences are to be served concurrently.
Declare that a minimum term of 5 years is to be served before becoming eligible for parole.
Pursuant to s 6AAA – I declare that the sentence I would have imposed but for your plea of guilty would have been a sentence of 3 months on Charge 1, and 8 years and six months on Charge 2.
I declare that you have spent 478 days in pre sentence detention (not including today) and such is to be noted in the records of the court.
Application for retention of forensic sample 464ZFB(1) is granted.
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