R v Gurpreet Singh

Induced statement 15On 21 February 2012 the offender gave an induced statement to the police. He confirmed the matters to which reference has already been made. He gave the following additional information that is particularly relevant for present purposes. 16On 1 January 2010 the offender made a statement to the police at Griffith concerning the murder of the deceased. He now acknowledges that parts of that statement were untrue. The offender said that he told lies to the police at that time because he held fears for his safety and for the safety of Ms Bhullar and their families. This was because Harpreet Singh had threatened to kill him and Ms Bhullar as well as his family in India. He said that he is still scared of Harpreet Singh but that he now wishes to tell the truth about what happened to the deceased on the night of 28 and 29 December 2010 when he was murdered. 17The offender, the deceased and Harpreet Singh drank heavily at the birthday party on 28 December 2010, commencing at about 4.00pm that day. During that afternoon the deceased asked Harpreet Singh on a number of occasions for money that he was owed. These constant requests degenerated into an argument as the evening progressed and as the drinking increased. During the evening the deceased and Harpreet Singh were alone together outside on the veranda. At some point the deceased said to Harpreet Singh, "Give me my money that you owe me or I will tell [your wife] and Russell Vardanega that you had a plan to kill them and to burn Russell's shed". Harpreet Singh became very angry and started yelling at the deceased, saying, "You are a dog, I do everything for you and you are acting like this". Harpreet Singh was pushing the deceased as he said these things and he looked very angry. A fight between them then took place inside the premises with the deceased being pushed to the floor and kicked in the stomach by Harpreet Singh. He said to the deceased, "You dog, I will kill you". Harpreet Singh had to be physically restrained. The deceased was left lying on the bedroom floor. 18The next thing that the offender recalls is Harpreet Singh knocking on the door of the bedroom he shared with Ms Bhullar. The offender went outside and Harpreet Singh said to him, "I am going to throw [the deceased] from the balcony". He said, "I have done everything for him, I am giving him a car, he is staying with me and ... my wife cheats on me and now he is deceiving me by saying he is going to tell Russell what I am thinking to do to them". The offender said, "[The deceased] can stay with me". Harpreet Singh then turned and removed a knife from a knife block on the kitchen bench and pointed it at the offender and said, "What did you say?" The offender repeated what he had said. At this point Harpreet Singh became very angry and again pointed the knife at the offender saying, "You are all the same as [the deceased]. Don't try to stop me or I will kill you all. Do what I tell you or I will kill you". 19At this the offender became frightened for his life. Harpreet Singh walked the offender into the bedroom still holding the knife. He said, "Tell your wife we are going to Wagga Wagga". He then said to Ms Bhullar, "Drive me and [the deceased] to Wagga Wagga. I will not tell you again". Ms Bhullar said, "It's night time". The offender said that he knew that Harpreet Singh still had the knife so he said to his wife, "Just do what he is saying". 20During the drive towards Leeton the offender saw Harpreet Singh tie the deceased's hands with a piece of cloth that was in the back seat of Ms Bhullar's car. It was a piece of material that the offender sometimes used to tie a small turban when visiting the temple. It was black. 21After driving for about 25 minutes Harpreet Singh ordered Ms Bhullar to stop the car. He took the car keys from her. Harpreet Singh then dragged the deceased from the car on his side and away from the car. The offender remained at the car. After two or three minutes the boot of the car opened when Harpreet Singh activated the remote opening device with the car keys. A few minutes later the offender noticed a big fire about four or five metres away from the rear of the car. Harpreet Singh got back into the car. Ms Bhullar said, "What happened, what happened?" Harpreet Singh said, "I have done the job. I have killed him. Have you got any tissues?" He then wiped the knife, gave the car keys back to Ms Bhullar and told her to drive to the carwash. 22They returned home via the carwash. Harpreet Singh cleaned the knife in the pressure cooker several times. 23Harpreet Singh later told the offender and Ms Bhullar to tell people that the deceased left home and that they did not know where he had gone. Harpreet Singh said to the offender, "I know where your family live and your wife's family live and I know the Detectives here in Griffith. I am working with them. Just say what I told you and I will sort the rest out myself." 24On 1 January 2010 the offender went to the police station and gave his statement referred to earlier. He said that he told the police what Harpreet Singh had told him to say due to threats from Harpreet Singh to himself, his wife and his family. Harpreet Singh constantly contacted the offender by phone over the ensuing days to remind him to say nothing to the police about what had really happened. The offender's fears of Harpreet Singh were only confirmed and strengthened by what he had seen Harpreet Singh do to the deceased. He became aware that Harpreet Singh was capable of carrying out his threats and that he was a very violent person. 25Somewhat inexplicably, the offender and Harpreet Singh shared a cell in gaol after they were taken into custody. Harpreet Singh continued to threaten the offender during this time, saying that he knew people in India who could do things to his family. The offender says that he remains fearful of Harpreet Singh.

Subjective factors 26The offender is 25 years of age. He comes from a background of rural poverty in the Punjab region of India. His parents and three sisters are alive and still living there. He came to Australia in August 2006 on a student visa to study hotel management. He relocated to Griffith in March 2008 to pick fruit. He has no criminal record in Australia or in India. It follows that he has never been incarcerated at any time other than for the present charges. 27He now speaks fair English but has encountered difficulties in gaol as a result of difficulties with communication. This has made him the subject of intimidation and harassment in gaol.

Objective gravity 28It was submitted on behalf of the offender by Mr Ozen that the offence was at the lower end of seriousness for offences of this type. In this respect I was asked to take account of the fact that his conduct consisted in a series of low level acts that included accompanying the deceased and Harpreet Singh to the countryside some 20 to 25 kilometres from Griffith. He remained in the car when it was driven to the carwash in the early hours of the same morning. He alighted from the vehicle at the carwash but apparently took no active role in cleaning it. The following afternoon he and Ms Bhullar cleaned the inside of the car. He later gave a false account of his involvement to the police. He purchased new tyres for Ms Bhullar's car at the behest of Harpreet Singh. 29Mr Ozen emphasised that the offender was not involved in harbouring Harpreet Singh or attempting to disguise his identity. He played no role in disposing of the body of the deceased or of a murder weapon. Such conduct is not unusual in cases of this type and tends to characterise an offender's conduct as at the higher end of the scale of criminality. The present case is to be contrasted with such cases. Moreover, the offender had no criminal motivation for his involvement in the events leading to the death of the deceased and was not otherwise concerned in some associated anterior criminal enterprise. Indeed it would appear, and I accept, that the offender had no genuine appreciation or understanding of what Harpreet Singh intended for the deceased until after it had occurred, both because of his reasonably intoxicated condition and the unexpected manner in which the fatal events quickly unfolded when the vehicle stopped in the countryside. Although the offender was neither as young as Ms Bhullar nor to my observation as naive as her, the overriding explanation for his role in these events is directly related to the character and characteristics of Harpreet Singh, to which I now turn. 30I am asked to accept that Harpreet Singh is a violent and dangerous individual with a propensity for and history of intimidation and violence within the local Indian community. Considerable material has been tendered in aid of that contention, to the particular details of which it is unnecessary to refer. It is sufficient to note that farmers and labourers in and around the Griffith area have complained to the police on several occasions about the conduct of Harpreet Singh. He is alleged to have threatened to kill people. He has attacked residential properties occupied by people with whom he has had disputes about money. Apprehended violence orders have been taken out against him. He has been convicted for an offence involving violence. 31The offender himself set out in some detail his experience with the violent propensities of Harpreet Singh. He understood that he was prepared to kill people if the circumstances as he saw them required it. He was regularly in disputes concerning the non-payment of money to contractors. There is other material to indicate an ongoing period of harassment of Mr and Mrs Vardanega by Harpreet Singh involving threats by him to kill them and members of their family. These matters came to the attention of police and I have been provided with statements and other documents that record these incidents at some length. I accept all of this material for present purposes as supporting the proposition that Harpreet Singh had the violent propensities of which the offender has given evidence and that his role in the subject events was significantly inspired by the fear for his own safety that his knowledge of Harpreet Singh engendered.

Assistance to authorities and early plea 32The offender pleaded guilty to the current offence at the first available opportunity. The Crown uncontroversially accepts this. 33The offender has also given an undertaking to give evidence in the Crown case against Harpreet Singh who is charged with the murder of the deceased but who is to be tried separately. The trial of Harpreet Singh is due to commence in the middle of this year. Mr Ozen has submitted that a discount in the order of 45 to 50 percent is appropriate in this case for the combined effect of the offender's early plea and his undertaking to give assistance to the authorities as a witness in the trial to which I have just referred. The Crown has not sought to contest this submission.

The proper sentence 34I was referred to considerable authority and to helpful statistics published by the Judicial Commission of NSW relating to like offences. These included, but were not limited to, R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408; R v Jin [2011] NSWSC 169; R v Fennell [2011] NSWSC 489; and R v Cowen [2008] NSWSC 104. In the latter case, Buddin J helpfully summarised at [15] - [26] some of the principles that apply in a case of this sort. 35The present offender has not had the advantage of, or the opportunity to obtain, a report concerning his mental state from an appropriate medical or forensic specialist in the field. Although the offender gave evidence before me, he did not in terms express remorse in any way for his involvement in the events that give rise to these proceedings or for the relatives of the deceased who must deal with his death. This is to some extent regrettable. However, the offender has no drug or alcohol related problems of any sort, has no criminal record and is entitled to a finding that he is in all respects otherwise of good character. It follows at least from this that he has what I consider to be excellent prospects of rehabilitation and presents with no obvious or discernible indication of any likelihood of reoffending. 36It was contended on the offender's behalf that, having regard to the fact that he has already served 2 years and 32 days on remand since he was taken into custody on 28 January 2010, a sentence of that length was an appropriate one in all of the circumstances, meaning that he should immediately be released. I note that the Crown did not contend otherwise and indeed accepted, quite properly in my view, that such a submission was appropriate. 37It follows from all of the matters to which I have referred, namely the reduced gravity of the offender's criminal conduct, in combination with his favourable subjective features, and my finding that the offender was motivated by fear of Harpreet Singh, who is clearly capable of extreme and unpredictable acts of violence, that I am presented with a somewhat wider range of realistic sentencing options in respect of the offence charged. In so saying, I am mindful of and take into account the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. 38I also observe, retrospectively, that the conditions under which the offender has served time in custody to date would, in other circumstances, attract attention as potentially more onerous and difficult than would have been the case for an incarcerated offender or prisoner on remand whose first language was English and whose family were local and able to offer physical and emotional support. These things have conspired to make the offender's time in custody so far more difficult than might ordinarily be the case and notionally increase the significance of the time already served.

Sentence 39In respect of the offence of accessory after the fact to murder I sentence the offender to a fixed term of imprisonment of 2 years and 32 days. That sentence will be taken to have commenced on 28 January 2010 and to have expired today. It follows that the offender is entitled to be released immediately. 40I note that the offender's status for immigration purposes is described now as an illegal non-citizen. Whatever may be the specific ramifications of that particular status, it carries with it the potential consequence of immediate deportation. I am however informed by counsel for both sides that the offender has now been issued with a criminal justice visa, which will ensure that he is entitled to remain in Australia for as long as his promise to give evidence in the trial of Harpreet Singh remains undischarged. I note further that the Crown holds no fears that the offender will not honour his undertaking to remain in Australia to give this evidence, and that his Indian passport has expired. He has also undertaken not to apply to the Indian High Commission for the issue of a new passport. It is expected that the offender will reside with Ms Bhullar and her sister in Sydney until they are both likely to be, if not inevitably, deported when the trial of Harpreet Singh is concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2012