R v Edwin Jitesh Chandra

R v Edwin Jitesh Chandra - [2015] NSWDC 234 - NSWDC 2015 case summary — Zoe

Relationship 5. The offender was in a relationship with a woman known as Ms Mohini Sharma ("Ms Sharma") from early 2009. They moved from Melbourne to Sydney. Ms Sharma commenced working as a carer with an organisation called Syd West Multicultural Services Inc and its sub-organisation, called "CALD Aged Care Services". Ms Sharma was a carer for Mr Saini's mother and wife. Mr Saini's wife died apparently in or about September 2010. Sometime during 2010, Ms Sharma commenced a relationship with Mr Saini. There was conflicting evidence about the nature of that relationship. Mr Saini said that it developed into a sexual relationship which continued through 2010. That, and the other aspects of the relationship (as set out below), were denied by Ms Sharma. 6. Ms Sharma's evidence was that at the relevant time she was in a de facto relationship with the offender. She lived with him and a cousin at 37 Standish Avenue, Oakhurst. 7. One of the subsidiary issues in the trial was the familiarity which Mr Saini had with the offender and Ms Sharma. Mr Saini said he knew they lived together with others, but thought they were cousins. Ms Sharma denied that she had indicated that - although her evidence in that regard was not impressive, particularly when she was shown a document in which she had described her relationship with the offender as a "cousin" (exhibit 23). 8. Mr Saini's evidence was that the arrangement between them was that he would meet with Ms Sharma at his home, 182 Blacktown Road, Blacktown, in his car, and at various Formula 1 motels around the western suburbs of Sydney sometimes once or twice a week and other times once a fortnight. Again, that was denied by Ms Sharma. 9. Their practice was to arrange meetings by Ms Sharma first ringing Mr Saini, and leaving a missed call notification. Mr Saini would then ring back and they would arrange a meeting. 10. Mr Saini's evidence was that he and Ms Sharma had a meeting in a car in or about December 2010 around the back of Eastern Creek raceway, where they were discussing their relationship. The Crown case is that during the course of this conversation, Ms Sharma accidentally dialled the telephone number of the offender's mobile phone. A short snippet of conversation was either heard by the offender, or recorded onto the offender's phone, and then heard by him. Further, that once the offender became privy to the recorded conversation, and with it, the details of the intimate relationship between Ms Sharma and Mr Saini, he informed Ms Sharma of his knowledge and his intention to hurt Mr Saini. 11. Mr Saini said on the voir dire, but not on the trial, that a few days after this event, Ms Sharma said to him, while she was looking after his mother, words to the effect of "I got caught, he (Edwin) heard everything. I left my phone on."

[16]

Victim Impact Statement 46. A Victim Impact Statement by Mr Saini was tendered on the sentence proceedings, which became exhibit S4. Mr Saini was present at the sentencing proceedings, however did not wish to read out his Statement in Court. 47. The injuries sustained by Mr Saini were outlined above. Further, as Mr Saini gave lengthy evidence during the trial, I was able to observe to some extent the physical injuries suffered by him and continuing discomfort caused by this offence. 48. In addition to his physical injuries, his Victim Impact Statement sets out the psychological and emotional impact of his physical injuries. That includes that due to the injury to his vocal cord, when he talks to other people, they do not understand him and he feels very ashamed as a result. Mr Saini said he has to repeat things more than once. Further, if he needs to call out to somebody else in the same room as him, he either has to walk to that person, or sometimes he hits the table or wall so that he can get their attention. He said, and I accept from my observations of him, that it is very hard for him to stand up because his knees and arms are not strong enough, and he is unable to place weight on his hands. 49. As outlined above, his skin gets very itchy. He said he is unable to use his hands to scratch his back, so sometimes needs to use doors or brick walls, despite bleeding from his sores. Further, he says that the bone infection in his thumbs has meant that he cannot button his shirts or zip his pants, and he has been told by his treating doctor that his thumbs may need to be amputated. 50. Upon his discharge from hospital, Mr Saini said that when he came home, he needed his friends and family to feed him, and clean him after he used the toilet. This continued for a period of one and a half to two years. He said that this inability to care for himself made him feel as though he had no hands, and very shameful, angry and helpless, particularly when he needed to ask his daughter to clean him. 51. Mr Saini said he needs to use both hands to pick up things, such as a cup of water. 52. He is unable to wear a turban, despite it being a religious requirement. 53. It appears from Mr Saini's Victim Impact Statement that he may need to consider surgery on his vocal cords and a tracheotomy may be necessary. He has been meeting all the costs of his treatment to date. 54. Further, since the incident, Mr Saini is unable to work. Prior to the incident, he was working as a taxi driver, working 14 or 15 hours a day. He said that before the incident, he was fit and used to manage his own funds. However, he is ashamed because now, he is dependent upon receiving the pension. 55. Mr Saini has suffered significant psychological harm, including that he has nightmares of him being set on fire, then somebody putting water on his body, and his skin peeling off. He said that he always worries, and that he is very paranoid about his security in his home. 56. Mr Saini says in his Statement that after the incident and whilst he was in hospital, he would have been better off if he had died, rather than being in constant pain. He said he contemplated suicide many times. 57. Mr Saini said that he now has nothing to do, and that he has no social or sex life, as he is not capable of any intimacy.

[20]

Psychologist's Report/evidence 63. A report was tendered from Michelle Player, dated 3 September 2015 which provides as follows. 64. The offender told the report writer that he had difficulties adjusting after his relocation at age 10 to Auckland. The offender's father then commenced drinking alcohol problematically, with his brother. He told Ms Player that his father's alcohol abuse caused marital discord between his parents, and that he was privy to alcohol-fuelled conflicts between his parents. Eventually their marriage broke down when the offender was 18 years old, which left the offender "devastated". 65. The offender's father died in 2002 from liver failure as a consequence of his alcohol abuse. He described to the report writer that he experienced a prolonged grief reaction to this, however that appears to now be resolved. 66. The offender met his first wife when he was 20 years old, and they married a year later when she fell pregnant. He has two daughters to his first wife, now aged 18 and 15. 67. He told the report writer that his work as a truck driver led to frequent periods away from the family, as well as long hours, and that this was detrimental to his marriage. He also told the writer that his wife announced in 2008 that she was homesick for New Zealand, that she no longer loved him, and that she intended to return to New Zealand with their two daughters to be closer to her family. The offender told the report writer that he did not cope well with his wife and daughters' departure at the end of 2008. However, from that stage up until presumably his arrest, he was providing financial assistance for his daughters. 68. The offender met Ms Mohini Sharma, his current partner, at the beginning of 2009 through family members. He described to the report writer this relationship as being positive and supportive, and denied any prior substantial relationship difficulties, periods of separation or domestic violence. He described Ms Sharma as being "always loving and caring" and that "she liked my kids, the kids loved her", as Ms Sharma was, together with the offender, having regular contact with his daughters in New Zealand. 69. The offender affirmed that Ms Sharma remains supportive of him and visits him on a weekly basis in custody.

[21]

Drug use 70. Following his first wife and daughters' departure to New Zealand in late 2008, the offender told the report writer that he engaged in heavy alcohol use on his day off, and also in smoking methamphetamine ('ice') several times a week. He told the writer that his ice usage was, in part, a response to his marriage breakdown and, in part, a method to work longer hours and stay alert as a truck driver. 71. He told the report writer that he was using ice five days a week within two months of first use and he estimated that he was spending a significant portion (some $300) of his wages to fund his drug use. 72. He ceased using ice upon his return to New Zealand with Ms Sharma in January 2011. From that time, he told the report writer that he was not using any ice, but was still consuming large amounts of alcohol after work and over the weekend. He told the report writer that stressors such as his mother's ill health contributed to his alcohol use, and that it had become habitual for him, and he struggled to alter this routine. He said that he was still drinking alcohol to excess every day up to the time of his arrest in November 2012. He told the report writer that he has been drug- and alcohol-free since being in custody. 73. There is no evidence, and it is not submitted by counsel, that the offender was affected by alcohol at the time of the incident. 74. The report writer did not report ever being diagnosed with a mental health problem, or having ever been prescribed any psychotropic medication, or having any contact with mental health professionals, including school counsellors. He did not report any prior self-harm history or current suicidal ideation. 75. He also denied having any anger issues as a child or as an adult. He said to the report writer, "I hardly get angry". He said that on previous occasions when he felt angry, he said "I don't show it to anyone", and denied exhibiting aggressive behaviour. 76. The report writer said that based on the offender's self-report, the offender does not reveal concerns with regards to anger management and aggression.

[32]

Findings as to the nature of the criminality involved 104. Here, the circumstances of this offence involving, as it does, clear planning and premeditation, and the clear intention to "send a message" means that the offence is of a very high order of criminality. Indeed it is hard to see why this offence would not attract a finding of being in or just below the worst case of criminality. 105. Additionally, the offence was committed in the victim's home. I am aware that the authorities are unresolved in this regard, namely whether the fact that the offender was invited into the home by the victim is or is not precluded as an aggravating factor under s 21A(2)(eb) - see Ingham v R [2011] NSWCCA 88 at [111] - [112] then the recent case of Aktar v R [2015] NSWCCA 123 per Wilson J at [45] - [64]; Hoeben CJ and Hulme J reserved their decisions on that aspect. Here, the invitation was secured by a false pretence or planned deceit by the offender. 106. The offender was a guest and was readily invited into the victim's home. That involves an element of trust. The offender had met the victim on several prior occasions, and the victim, despite being warned by Ms Sharma, extended his hospitality to the offender. 107. Here, the offender intended to use the petrol/accelerant and to ignite it. An inevitable consequence was the grievous bodily harm caused. 108. Burning a victim is an act of immediate, destructive, and horrifically painful violence. It must be denounced in the strongest possible terms. I note that whilst I consider this to be a particularly heinous type of violence, I have taken care not to consider this as an aggravating factor of the crime, given that it falls within the elements of an offence under s 46 of the Crimes Act. 109. In light of the current tensions as outlined above, and without treating these factors as aggravating features given the elements of the offence, they are still matters that bear upon a proper assessment of the objective criminality of this offence. 110. The offender also sprayed or poured petrol on the clothing covering the upper part of the victim's front body, where vital organs are located. 111. One factor that distinguishes this offence from what would be the worst case is that there was no gratuitous cruelty or injury inflicted beyond what was caused by the primary act of pouring petrol over the victim and igniting his clothing. 112. I also find that there is also an absence of any mitigating factors, other than that the offender had no prior criminal history prior to committing this offence. 113. I have considered the decisions of the Court of Criminal Appeal in Kendall v R [2015] NSWCCA 13; R v Twala (NSWCCA, unreported, 4 November 1994); and Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ (with whom Simpson and Adams JJ agreed). Further, Little v R [2010] NSWCCA 210 at [31] per Hall J (with whom McFarlan JA and Simpson J agreed) where it was held that the physical injury and impairment, disability and emotional and psychological consequences of the offence upon the victim are all considerations important to an assessment of objective criminality. 114. I have considered the relevant authorities in assessing the criminality of this offence when compared with the worst possible case. I do consider that this case was near to the worst category of such cases given several factors of heinousness, including the planning and premeditation; the nature of injuries to the victim; leaving the victim in a burning state; the false pretences upon which the offender was invited into the home by the victim, which involved bringing a box of chocolates, having the victim make a cup of coffee for him; and the offender's immediate departure from the scene.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (39 paragraphs)

Parties

Cases Cited (13)