R v Dhillon [2011] VSC 6

2 On the basis of what has been put by the Crown and on your behalf, the circumstances leading to the death of the child, Gurshan Singh, are not in significant dispute. An understanding of what occurred is largely based on what you have told police in your record of interview.

3 As at 4 March 2010, you and your wife and child were residing at 28 David Street, Lalor. A number of other people from India also lived in the house including Harjit and Hapreet Channa and the now deceased child, Gurshan Singh.

4 Having made a false statement to police on 5 March 2010 in which you tried to avoid responsibility for what had occurred, in the record of interview with Detective Senior Sergeant Iddles on 7 March 2010 you described what had actually happened. You said that at about 11:30am on 4 March, an accident occurred which involved you opening a door at the front of the premises without realising that the child, Gurshan Singh, was close by. The action of opening the door apparently struck the child to either the side or the back of his head and, to your observation, caused him to become immediately unconscious. You told police you saw the child fall to the ground and, although that occurred, you did not hear him cry and, on one account that you gave to the police, you thought the child was dead. The child was not dead at that point and I do not accept that you thought he was.

5 You also told police that you believed that the child was unconscious and after that incident occurred, you placed the child in the boot of your motor vehicle. You did not check the pulse of the child or whether there was any heartbeat. There seemed to be some uncertainty in your description as to whether the child was breathing.

6 As I understand your explanation, you were concerned to conceal the fact that you had caused this accident and therefore done harm to the child. Primarily, you were concerned to avoid any situation arising which would have the effect of stopping you from remaining in Australia. I will return to those circumstances shortly. Although in her statement your wife had said that before you left the house you went back inside the premises with the child in your arms, you have told the police that is incorrect and that you did not speak to her before you left the premises.

7 You drove away from the premises with the child in the boot of the car. You had left the premises by 11:44am because you were then making phone calls back to those premises. Thirty-five minutes later, the parents of the child realised he was missing and a large search was immediately commenced. There was a broadcast for information through the media. There was, as Mr Silbert indicated, significant public interest in the case because of the fact that the child is of Indian nationality, as are you.

8 You accepted when it was put to you by Detective Senior Sergeant Iddles that if you had rung an ambulance at the time that you placed the child in the boot of the car or shortly afterwards, the child might still be alive. Your failure to do that was because, as you described it, you were afraid and wanted to keep yourself safe. You accepted that your conduct was negligent and you also accepted that you were more concerned about yourself than the welfare of the child.

9 You told police that while you were driving around, you looked at the child in the boot once and he was not moving, but you conducted no other checks. Your instructions to Mr Winneke of counsel appearing on your behalf are that you initially intended to take the child to the Northern Hospital. You told him that you drove past the Northern Hospital in what Mr Winneke described as a state of fear and indecision about what would happen when you got there. Having driven past the hospital, Mr Winneke said you then ran out of petrol, which was supported by other evidence. You obtained petrol somewhere in the vicinity of Cooper Street and Somerton Drive at about 1:26 pm and at the time of obtaining the petrol, you looked in the boot of the car and saw no sign of life in the child.

10 You then drove around for a further period of time and ultimately found an area of grass where you decided to leave the child who was, by now, in all likelihood deceased. You returned to the house at 28 David Street, Lalor at shortly before 3:30pm.

11 At 6:20pm, a truck driver by the name of Fullarton who was travelling along St John's Road, Oakland Junction noticed the child's body lying in the long grass a short distance from the side of the road. It was evident to him that the child was dead.

12 On the following day, an autopsy was carried out by Dr Melissa Baker.

13 The result of the autopsy was that the cause of death could not be ascertained. Although there was bruising and abrasions to the face and the head, it could not be said that those injuries were necessarily caused by any blunt force trauma. There were no fractures to the skull and no significant abnormalities neurologically. Such injuries as Dr Baker was able to identify were not sufficient to explain death and would not obviously lead to the child being unconscious, although that could not be excluded. She thought the impact with the door may explain some of the bruises, but not necessarily all of them.

14 She allowed also for the possibility that the child was alive when placed in the boot and that heatstroke or what she described as positional asphyxia, that is, the position of the child in the boot of the car, might have caused the death.

15 The result is that the findings by Dr Baker neither support nor contradict what you told the police had occurred that day.

16 Mr Winneke referred me to evidence which suggested that at the time of this incident the child was in fact outside and unsupervised, and in the vicinity of the front door, trying to get back inside the house when the door opened and hit him.

17 You certainly said in the course of your record of interview with Detective Senior Sergeant Ron Iddles that you were opening the door when this occurred.

18 As I have already mentioned, it is not in dispute that your initial explanation for your whereabouts and involvement in this matter involved you lying to the police. You initially denied taking the child and began your record of interview by giving an account of the events of the day in which you lied about what you had done and that you had received a phone call from your wife informing you that the child was missing. It is also apparent that you attempted to arrange some kind of alibi relying on your friends to support you, but, upon inquiry by the police, what had actually occurred became apparent and those friends of yours told the police the truth.

19 Ultimately, you told the police the truth about what occurred. In my opinion, your attempts to lie your way out of responsibility in this matter were not well organised and were a reaction to the fear you had of the consequences of what you had done. Indeed, when you were asked why you did not ring an ambulance, you said you could have done that, but you did not do so because you were scared of the consequences.

20 Mr Winneke submitted that it was never your intention to harm the child and that you initially believed that you had either killed the child or seriously hurt him accidentally. He submitted that you were concerned that you would be in trouble with the police and, to use your own words, your "mind stopped working". That submission was not the subject of any dispute and I accept that what occurred in the circumstances leading to this child becoming unconscious was not intended by you and that your reaction to it was one of fear for your own welfare.

21 However, to have spent some hours with the child in your car and to have paid no regard to the welfare of the child as opposed your concern for yourself makes this a very serious offence. Your immediate reaction, from the time the child fell to the ground at the house in David Street, was only to protect yourself. The tragedy of this case is that but for your conduct, the death of this child was, in all likelihood, avoidable.

22 The impact of your offence on the parents of the child has been substantial. Their victim impact statement was read to the Court by Mr Silbert and I have re-read it since. It is not surprising that that statement sets out an emotional and heart rending description of the consequences of the death of this child for his parents. It is beyond the ability of this Court to significantly reduce that suffering. Whilst they display some understandable hostility to you, to their great credit they ask for no more than justice. I have taken their victim impact statement into account in the sentence I will impose on you.

23 You are 25 years of age, having been born in India on 7 July 1985. You have no previous convictions for any offences. Having grown up in India, you came to Australia on a student visa in October 2006. You are married to Ms Simarjeet Kaur, who is aged 24 and also born in India. You and your wife have a daughter, Jasmeet Dhillon, who was born on 1 February 2009 and presently resides in India. Both your parents are also alive and living in India. They are aware of the circumstances of this case and apparently continue to support you.

24 You had gone to some trouble to come to Australia in 2006 and when you did so you began a hotel course which was not completed. You returned to India in 2007 and married and then came back to Australia with your wife in 2008. You worked as a courier driver and taxi driver and, as I have said, your child was born in February 2009. At the time of these events, your prospects in the courier business were apparently fairly positive.

25 I have been provided with a copy of a report prepared by Jeffrey Cummins, a consulting clinical and forensic psychologist, dated 16 December 2010. He concluded that you have no personality disorder although you are suffering from stress as a result of these matters and also, understandably, from your present circumstances. There is nothing about your psychological state that contributed to your conduct on 4 March 2010.

26 There is evidence of your remorse for what occurred. I have reviewed the transcript of your record of interview with Detective Senior Sergeant Iddles and also watched the videotape. I am satisfied from the way you conducted yourself during that interview that you are extremely remorseful for what occurred. I am fortified by the fact that Senior Sergeant Iddles was willing to give evidence before me for the purpose of describing the fact that you were the only accused person in his experience who has ever wanted to meet the family of the deceased and explain your actions to them. That opportunity was given to you, and Mr Iddles was of the opinion that that action in itself showed genuine remorse.

27 I might note that having watched the interview between Detective Senior Sergeant Iddles and yourself, the compassion and humanity with which Mr Iddles conducted the interview was exemplary.

28 You were charged with manslaughter by criminal negligence on 7 March 2010. You have been in custody since that date. You did not apply for bail and you have always intended to plead guilty. There was no committal proceeding. I am told that although your wife is presently in Australia and your daughter is in India, it is likely that your wife will return to India, which means that you will be alone in this country. I am also told that you are presently in protective custody and likely to remain so. It is also likely that once you have served any minimum term of imprisonment fixed before you are eligible for parole, you will be deported, since there are charges outstanding in relation to immigration matters.

29 By your plea you have accepted that your criminal negligence caused the death of this child. It is clear that you had no intention to harm the child deliberately. For reasons which I find difficult to understand though I accept what has been put forward on your behalf, you neglected this child's condition for a number of hours when you knew assistance was needed. You were only concerned to protect yourself. You and the community generally must understand that in a situation like this there is a very strong legal obligation to assist and a failure to do so resulting in death, as this has, is a serious breach of the criminal law.

30 However, that having been acknowledged, you have pleaded guilty and were always going to do so. You have avoided the need for what would have been an emotionally very difficult trial for the parents of the child. You did not require a committal to be held. You declined to apply for bail which may well have been granted had you done so. You have been held in protective custody given the nature of this offence and you are likely to remain so. That is a very onerous way in which to serve a term of imprisonment. I am informed that in connection with this and other matters in all likelihood you will be deported after you have served your minimum term and will not be permitted to return to Australia in the future.

31 At my request, Mr Silbert indicated that, from the Crown's point of view, the appropriate sentencing range was between four and six years as a head sentence, and three and four years as a minimum term. Mr Winneke did not dispute the appropriateness of the range. In my opinion, the Crown's position is a compassionate one.

32 In all the circumstances, the sentence I propose to impose on you is imprisonment for five years. I will fix a minimum period of three years before you are eligible for release on parole. I consider that you would benefit from a slightly longer than usual period of parole and that by then you will have served your sentence in all likelihood in protective custody. I also do not regard it as at all likely that you would commit any further offences.

33 I declare that pre-sentence detention is 333 days as at this date, and I direct that that declaration be retained in the records of the Court and be reckoned as time already served.

34 Pursuant to s 6AAA of the Sentencing Act, I indicate that, were it not for the plea of guilty which you have offered, the sentence I would have imposed would have been a sentence of seven years' imprisonment with a minimum term before eligibility for parole of five years.