DPP v Kamalasanan & Sam [2018] VSC 340

1 Arun Kamalasanan and Sofia Sam, on 21 February 2018, you were each found guilty by a jury of the murder of Sam Abraham on 14 October 2015. The maximum penalty for murder is life imprisonment.

2 Sofia Sam, Sam Abraham was your husband with whom you and your son, then aged six, lived at a unit in Epping in Victoria.

3 At 9.14 am on 14 October 2015, emergency services were called to your address to treat Mr Abraham. He was unconscious, not breathing, and could not be roused. Paramedics attended at 9.27 am but were not able to revive Mr Abraham, who was declared dead shortly afterwards. He was 33 years old.

4 Forensic pathologist, Dr Michael Burke, conducted an autopsy and concluded that Sam Abraham had died of cyanide poisoning. Because his death was regarded by police as suspicious, the cause of Sam Abraham's death was kept confidential even from members of the immediate family, including you, Sofia Sam.

5 The only persons present in the house at the time of the poisoning were you, Sofia Sam, your son, and by your admission, you, Arun Kamalasanan.

6 It was a major part of the prosecution case that both of you had been involved in a long-term relationship, notwithstanding the fact that you were both married to other people. Both of you and Mr Abraham had been friends since you were at university together in India. It was the prosecution case that the relationship between the two of you was much deeper than had been publicly acknowledged, although there was no direct evidence that the relationship was sexual.

7 You, Sofia Sam, had come to Australia with your son on 2 December 2012 and Mr Abraham joined you in May 2013. It was the prosecution case that you had kept a diary from January 2013. The entries in the diary demonstrated that you, Sofia Sam, had deep feelings for Arun Kamalasanan.

8 You, Arun Kamalasanan, arrived in Australia on 7 July 2013. The diary was found in your flat after your arrest on 18 August 2016. It appears that Sofia Sam had shared the diary with you soon after your arrival. You had made entries in the diary in July, August and September 2013. You, Sofia Sam, had made further entries in August and September 2013.

9 Although there were no entries in the diary after September 2013, there was other evidence that showed a continuing relationship between you over the next two years, including the opening of a joint bank account in January 2014 in relation to which your address, Sofia Sam, was listed as that of your co-accused.

10 You, Sofia Sam, sent funds to India via Western Union on four occasions between January 2014 and July 2015, again using that address.

11 At least in the case against you, Arun Kamalasanan, you had provided Sofia Sam and Mr Abraham with a mobile SIM card to be used for communication with you. A computer hard drive found in your flat contained photographs of the two of you and in an electronic diary which contained an entry, dated two days after your arrival in Australia, that you had met your 'love' for the first time in seven months.

12 You were witnessed together on one occasion, but I do not consider that to be of any great consequence.

13 In the event, both of you had separately been to India shortly prior to the murder, but nothing turned on that fact.

14 After Mr Abraham's death there was surveillance evidence of contact between you in November and December 2015 and May 2016. Some of the material showed that you were avoiding being seen together. In March 2016, a Toyota sedan, which had been registered under Sam Abraham's name was transferred to you, Arun Kamalasanan.

15 You, Arun Kamalasanan, became the subject of an undercover police operation to see whether, in the process, you would provide information about Sam Abraham's death. The operation went from March to August 2016.

16 In that investigation, you had earlier spoken of the use of cyanide and had given the covert operatives a small bottle containing a white powder which you said was potassium cyanide, but which, upon analysis, apparently was not.

17 You later confessed that you had poisoned Mr Abraham. You said that you had snuck into the garage as Sofia Sam was returning home in her car that night, gained entry into the house through a window, proceeded to drug the entire family by adding sleeping pills to the avocado shake that Sofia Sam had prepared and given Sam Abraham the cyanide in some orange juice, by holding him and making him drink it as he was asleep.

18 You were arrested after your confessions to the covert operatives and interviewed the same day. In the interview, you denied any involvement in the murder. The evidence from the covert operatives was not put to you.

19 I am satisfied that on the whole of the evidence you were the architect and driving force of the murder of Sam Abraham. To a large degree, that analysis is based upon what you told the covert operatives.

20 I am satisfied that your conduct was pre-meditated. You told the covert operatives that you had been planning the murder for three years, and that you had brought the cyanide to Australia during your trip back to India.

21 In the case against you, Sofia Sam, I am satisfied that you were involved in the murder of your husband. It is not possible to say what precise role you played, but I am satisfied that your husband could not have been murdered without your knowledge and acquiescence and that it is likely that the jury proceeded to find you guilty on that basis.

22 The version of events from you, Sofia Sam, is contained in a statement which you made on 16 October 2015 shortly after Mr Abraham's death, and a the record of interview with police made on 18 August 2016, the day of your arrest. In the interview, you denied any involvement in your husband's death. You said that you had been home on the night of his death, having left the house only briefly to visit your sister nearby and go to the supermarket. You said that Sam Abraham had told you that he did not want to eat dinner as he was not feeling well. You then made an avocado shake and orange juice for your husband. You said that the family drank the avocado shake and you saw your husband drink the orange juice, have some snacks and take Panadol. You said you had made another cup of orange juice and left it in the kitchen for your husband. You said that the family had slept together in the same bed.

23 It follows from the evidence in your case that it is not possible to say what role you played. In particular, it is not possible to say what part you played in the planning of your husband's murder, or the extent of your physical involvement in his poisoning. As I said earlier, I am satisfied you must have had some degree of prior notice and participation, but not in a way that can be taken any further in assessing your culpability.

24 This is a very serious example of the crime of murder. Mr Abraham was a young man asleep in bed at home with his son, when he was killed by the use of poison. I am satisfied that the poison was chosen as your 'weapon' in an attempt to avoid detection. There was expert evidence that death was as a result of cyanide poisoning would probably be excruciating. I am satisfied that you both knew of that potential, more so in your case, Kamalasanan. There is insufficient evidence to show beyond reasonable doubt that Mr Abraham did suffer in that way, and that limits the extent to which your choice of 'murder weapon' aggravates your offending.

25 You, Arun Kamalasanan and Sofia Sam, were, respectively, the friend and wife of Mr Abraham and your actions were a fundamental breach of trust and must be strongly denounced by the Court.

27 Arun Kamalasanan, you are now 36 years of age. You were born in Kollam in the estate of Kerala in India, where your parents, sister, wife and four-year-old son live. It is an important feature of this sentence that you will be separated from your family and that you have will little or no other support in Australia.

28 You are reasonably well-educated, having studied towards a Bachelor of Science in India, although you did not finish your degree, despite completing most of the study. It was while you were studying in Mahatma Gandhi University that you met Sofia Sam and Mr Abraham and became friends with them.

29 You did not finish your degree because you had an opportunity to study and work in the automation industry with a company in Chennai India. It was there that you met your wife. You stayed with that company for a year, studying and working in Chennai for three months before moving to Mumbai. Then you worked for another company as a senior engineer for about two and a half years. From there you moved back to Kerala and worked for Ashapura Minechem in the state capital of Thiruvananthapuram for four years. In 2009, after being employed there for about a year, you married.

30 In 2013, you decided to come to Australia to study. You did so to better yourself and ultimately to be in a position to look after your parents and young family. Your wife was then pregnant and gave birth to your son while you were in Australia. You financed your studies with the support of your parents. The aim was to work while you were studying to support your family in India. Although the evidence on the subject is limited, I accept that your family will be left with a significant financial debt as a consequence of your actions.

31 When you first came to Australia, you studied engineering at RMIT and apparently achieved excellent results. During your first semester, however, there was a financial crisis in Kerala, which apparently greatly reduced your capacity to fund your studies and/or to support your family. You transferred your studies to Federation University where you enrolled in an accounting course. You reasoned that it was the cheapest course you could find, and had less formal hours which enabled you to seek more work. As best I am able to assess, your studies in accounting were unsuccessful. Since you had no background in the discipline, that was not surprising.

32 You said that you were under extreme stress during that period and that would also not be surprising.

33 You later applied to study information technology at Federation University and later still at the Victorian Institute of Technology. You were admitted to the course at Federation University, but you deferred that course until November 2015 on medical grounds. It is not clear whether you actively started either of those courses.

34 I accept that your financial position was parlous during the whole of the time you have been in Australia.

35 When you first came to Australia, you stayed with your friend at St Kilda. In the time after the murder, you lived in your car for a short period and then had accommodation in Port Melbourne.

36 Your medical history is difficult. We know that Dr Paul Blatt gave you a medical certificate in July 2014, stating you were suffering from severe stress, anxiety, depression and said that:

With reference to the diagnosis and Arun's previous medical history from RMIT Counselling centre and St Kilda Road medical centre, I strongly recommend and advise to suspend any mentally stressful activities and will consider referring him to a specialist after consultations, in the forthcoming month.

37 No record was produced and no referral appears to have taken place.

38 There is a further letter from Dr Blatt dated 21 November 2015 in similar terms to what was said in the earlier letter, but added:

With reference to the recent reports from Dr Jomon Joy MD (Psy) INDIA, during Arun's recent visit to his homeland ...

and concluded by saying rather, that any referral to any specialist said:

and regular visits have been made to evaluate his progress.

39 That visit to India immediately preceded both the murder and this consultation with Dr Blatt, but no further material about those examinations or matters was made available.

40 It is known that in July 2015, as I have already mentioned, you sought leave from Federation University 'on medical grounds as per doctor's instruction'.

41 Your ability to remain in Australia was predicated upon your enrolment in an approved course. Although your progress through your studies was very limited by virtue of the changes you made in your course, you kept your permission to remain in Australia alive.

42 You were later examined by a very experienced forensic psychiatrist, Dr Lester Walton, and his report dated 17 April 2018 was submitted on the plea. You reported to Dr Walton that you had a psychiatric history both in India and here and told him that you had attempted suicide both before coming to Australia and after arriving in Australia. You reported that you were subject to mood swings and that in your time in Australia you felt pressured because of all the prevailing circumstances, particularly the financial difficulties.

43 You reported attending counselling services with Dr Blatt. Dr Walton in his report expressed the following matters under the heading 'Opinion'.

1. The following expressed opinions ought to be regarded as tentative. There are some indications that Mr Kamalasanan may not be the most accurate provider of historical and other information and perhaps his conviction is the most concrete example of that. I am mindful that the process of psychiatric assessment may have been distorted by cultural factors. Towards clarifying psychiatric matters further, I would urge that you try and locate the general practitioner stated to be Dr Paul Blatt in St Kilda, any records which may be held by the RMIT Student Health Service and also this man's prison medical record.

44 I interpolate that insofar as those matters could be addressed on your plea by your counsel, they have been addressed.

1. While it is certainly not unheard of, it is quite uncommon for a person suffering from bipolar disorder to suffer from such rapid mood swings as were described by Mr Kamalasanan. If his account is accepted at face value then the diagnosis would apply as not only does he describe mood swings but disorganised thinking, auditory hallucinosis and probable delusions. While it is far from uncommon for persons to suffer from minor cognitive deficit in the face of mood disturbance and psychosis again the pattern which Mr Kamalasanan exhibits is a little unusual, for example, there ought to be preservation of well-learned arithmetical skills.
2. This man's current treatment regimen, which I understand consists of antipsychotic and antidepressant medications, is not especially helpful in terms of clarification of the specific diagnosis but it is indicative that the prison psychiatric service does seem to regard Mr Kamalasanan as suffering from significant mental disturbance.
3. It is Mr Kamalasanan's account that he was in a state of significant mental turmoil quite adjacent to the murder and at this stage I state no more than it is far from frivolous to suggest that psychiatric factors may have been relevant to the offending, in particular, a loss of social judgement, the disinhibition of aggressive urges which might otherwise have been contained and a failure to properly consider the consequences of his actions.
4. Mr Kamalasanan does not express appropriate remorse which might, at least in part, be contributed to by his psychiatric disorder.
5. Perhaps to state the obvious, if Mr Kamalasanan is afflicted by a major mood disorder then it follows that he will endure any particular period of imprisonment as more onerous than others. Again, if it is established that this man is afflicted by a major mental disorder then perhaps there might be some amelioration of general deterrence. It is reassuring that Mr Kamalasanan does not have an established history of prior violent behaviour which augurs well prognostically.

45 It is clear from Dr Walton's report that it poses more questions than it answers.

46 I had the benefit in this case of hearing you speaking to the covert operatives. The conversations you had are largely logical and coherent. You did discuss in great detail your financial plight, the difficulties you had living in Australia, and concerns about your family. Those discussions did not indicate that your concerns about those matters were overwhelming. You seemed to enthusiastically participate in the activities suggested by the undercover operatives.

47 Significantly, there is evidence in your discussions with the covert operatives that you had, over a period of three years, attempted to fabricate a mental illness as part of your plan to murder Mr Abraham and escape criminal responsibility. You made specific references to having obtained proof that you were mentally ill, from India, RMIT, and a local medical clinic. It is not difficult to infer, as the Crown submitted, that Dr Blatt's letters were procured as part of that plan.

48 It is very difficult to assess what your mental condition is. There is nothing which has emerged from the records of Justice Health which sheds any further light on the position. Your counsel, Mr Tehan QC, submitted, relying upon principle six from R v Verdins,[1] that there was a serious risk that imprisonment would have a significant adverse effect on your mental health. There is, however, insufficient evidence to enable me to say that you suffer from a mental condition which would attract the engagement of the Verdins principles. Since I do regard your isolation as a very important feature of this sentence, I do not regard the absence of any consideration of principle six of Verdins as particularly significant.

49 I do accept that you will serve your sentence in circumstances of great isolation, both personally and culturally. I have already stated that it is an important sentencing consideration. In particular, you will not see your son grow up and your elderly parents may not survive your sentence. You appear to have had only one contact in Australia. You are of the Hindu faith and the opportunities to practise your religion will be limited. It can be reasonably assumed that you will be sent back to India at the end of your sentence but, in the circumstances, knowledge of that fact is not an additional burden on you.

50 I received letters from your wife and parents. They plainly care greatly for you and their anguish only adds to the burden of your imprisonment as I have just set out above.

51 You have availed yourself of the opportunities you have had in prison and have worked in the horticultural industry and looked after the aviary in the prison. You have completed a number of courses through the Box Hill Institute. They are: Certificate I in General Education for Adults; Certificate I in Information, Digital Media and Technology; Certificate II in Information, Digital Media and Technology; Certificate II in Kitchen Operations; Certificate II in Engineering; and Certificate III in Cleaning Operations.

52 You have no prior convictions and I regard your prospects of rehabilitation as at least reasonable, even in the absence of you showing any remorse for what you have done.

53 Sofia Sam, you are now aged 34 years. It follows from the sentence I will impose upon you that you will spend a significant part of your most productive years in prison.

54 You were born in the State of Kerala in India. Your parents and only sister live in Melbourne at the moment, although your parents are due to return to India in August. Your son, who is now nine years old, is, of course, a significant victim of this crime. He is in the care of your sister. He visits you two or three times a month and you speak to him daily.

55 You are concerned that his father's family in India may seek custody of him. As that matter stands, it is somewhat, if not entirely, speculative. Your counsel submitted I should nevertheless have regard to your concern about that, and I have done so.

56 You are well-educated, having obtained a Bachelor of Science and a Master of Science from the Mahatma Gandhi University, Kerala, in the field of electronics and you worked in India in that field for five years.

57 You came to Australia in 2012, as I have already pointed out, and worked in website development here. You are a devotee of the Mar Thoma faith and taught religious education as a volunteer from October 2014 until your arrest in August 2016.

58 You are a permanent resident of Australia. What your ultimate position will be with respect to your immigration status is unknown.

59 You have been usefully employed at Dame Phyllis Frost Centre in the one year and 10 months that you have been in custody. You have had employment in several divisions, and since July 2017 have worked in the canteen shop.

60 You have applied yourself to a number of courses whilst in custody and I received a number of certificates relating to your studies. You have completed a Certificate II in Kitchen Operations and Certificate II in Retail Services via the Box Hill Institute. You have also completed modules of the following Box Hill Institute certificates: Provide First Aid; Certificate I in Construction; Certificate I in Access to Vocational Pathways; Certificate II in Cleaning Operations; Certificate II in Printing and Graphics Art (General). You are currently undertaking studies towards Certificate II in Information, Digital Media and Technology.

61 You have also completed the Inside Out Prison Exchange Program and have participated in the Think Tank Program taught by Dr Marietta Martinovic. Further, you have completed various Dame Phyllis Frost Centre or other programs or seminars, including: Parenting from the Inside; Prison Legal Education and Assistance Project; Court Readiness Program; Managing Loss Program; Coping with Change Program; Managing Emotions Program; Managing Sleep Program; and Managing Worry Program.

62 I received a letter from Dr Martinovic, senior lecturer at RMIT, who wrote positively about your participation and achievements in the programs which she runs at Dame Phyllis Frost Centre.

63 Your sister lives in Australia and has the care of your son at the present time. You are therefore not as isolated as you might otherwise have been, even after your parents return to India.

64 You have no prior convictions. I regard your prospects of rehabilitation as good.

65 It cannot be said that you are remorseful, but you conducted your trial in a sensible and economic way, which is to your credit.

66 In relation to both of you, I have taken into account the need for denunciation and just punishment. I have taken into account personal deterrence to the degree to which it is relevant. I regard the need for general deterrence as an important consideration in the sentences that I am about to impose.

67 I have found no other case which is of direct assistance in sentencing you.

68 Would you stand up please, Kamalasanan? Arun Kamalasanan, you are sentenced to be imprisoned for a term of 27 years and I fix a period of 23 years before you become eligible for release on parole.

69 Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served 672 days, excluding today, by way of pre-sentence detention and I direct that the fact that the declaration was made and its details be noted in the records of the Court. You may sit down.

70 Sofia Sam, having regard to the lesser role for which you fall to be sentenced, you are sentenced to be imprisoned for 22 years. I fix a non-parole period of 18 years before you become eligible for release on parole.

71 Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served 672 days, excluding today, by way of pre-sentence detention. I direct that the fact that the declaration was made and its details be noted in the records of the court.

[1] [2007] VSCA 102; (2007) 16 VR 269.