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[2005] VSC 445
Supreme Court of Victoria
2005-11-11
TEAGUE J
Original judgment source is linked above.
Criminal Law - Sentencing - Murder of taxi driver by drug-affected 19 year old - Threat to kill witness at committal hearing - Effective sentence of 20 years - Non-parole period of 15 years.
1 Omar Khoder. You have pleaded guilty to one count of murder and one count of threatening to kill. On Thursday 11 March 2004, you stabbed to death Benu Adhikari. Benu Adhikari was a taxi driver. You hailed him in Sydney Road, Coburg. You asked him to drive you to a block of flats in Garnet Street, Brunswick. The fare was around the $9 mark. You asked him to wait while you got the money. You got out of the taxi. As Benu Adhikari waited for you, he spoke by mobile telephone to one of his two sons. A short time later, you got back into the taxi. Instead of paying him the small fare, you stabbed him again and again. Incomprehensibly, you stabbed him to death. You left him slumped in the driver's seat. You then climbed a fence. That took you into the home of your parents where you were raised. There, you placed the knife in a pot plant. You then went on your way.
2 Taxi drivers serve a very important function in our community. Regrettably, because of people like you, driving a taxi is a vulnerable occupation. You made a random attack on a completely innocent and defenceless man. General deterrence must play a significant part in the sentence that I impose.
3 Benu Adhikari was a man whose death has devastated four people. The four are his wife, his mother, and his two sons. The victim impact statements provided to the court bear out that he was an intelligent and caring man. He was born in Nepal. He was the only son of a woman whose husband died before Benu Adhikari was born. He was a university graduate. His work brought him to Australia. Here, he realised the greater opportunities available for his family. He then worked hard to bring to Australia each of his mother, his wife and his sons. He was a founding member, and later President, of the Nepalese Association of Australia. He worked only part-time as a taxi driver to provide extra funds to support his family.
4 I turn from Benu Adhikari to you. Before I turn to the broader aspects of your background, I need to summarise the context of your actions on 11 March 2004. On Friday 5 March 2004, a few days before you murdered Benu Adhikari, you were admitted to the Orygen Youth Health Inpatient Unit in Parkville. You then provided certain matters as part of your history. You said that you had been a heroin user for 4 years. You said that you had recently spent time in prison, where you had had traumatic experiences. You said that you were suffering from auditory hallucinations. You said that you had attempted suicide 3 days before your admission. All those matters appear to be correct. Indeed, on 2 March you had attended at the Emergency Department of the Royal Melbourne Hospital. You reported ideas of suicide and of homicide. Between 5 March and 9 March, you received treatment at the Orygen unit. At times, you were co-operative. At times, you were not co-operative. On Tuesday 9 March, you went missing. That led to your being discharged the next day. It seems that you have little recall of what happened over the next 2 days. You spent at least some of the time on the night of 10 March at the home of a woman whom I will call Ms M. You had come to know Ms M through her daughter. Out of kindness to you, she allowed you to sleep on her couch at times.
5 At 7.15 a.m. on Thursday 11 March, you were back at the Emergency Department of the Royal Melbourne Hospital. There you were again reporting suicidal ideas. You appeared co-operative. You were assisted in various ways. More assistance was planned for you. Regrettably, at 10.30 a.m., you chose to leave the hospital. Twice in the course of that day, at around 3 p.m. and at around 6 p.m., you spoke with, and had something to eat with, one of your brothers in Sydney Road, Coburg. Indeed, there was a like encounter during the next morning. That was after you had murdered Benu Adhikari. On the account of your brother, when you were with him on those three occasions, you acted as you normally did with him. You also chose on that Friday morning to go to the home of a woman whom I will call Ms J. You knew her son. You said to Ms J that you were looking for her son. After some discussion between you, she allowed you to use her telephone. Shortly before you left her, you made mention of having killed a taxi driver. Only later did she realise that you were serious. Asked to do so, she made a statement to the police.
6 Later that day, you returned to the home of Ms M. You spoke with her about your dismal view of the world. You asked her if you could watch the television. She agreed and left you to do so. When she returned, she found you unconscious with a needle in your arm. She called for an ambulance. The ambulance came. So too did the police. You were arrested. Off the record, you gave a brief account of the stabbing that generally accorded with the findings of the police. You subsequently opted not to answer police questions on the record.
7 There was a committal hearing on 7 February 2005. Ms J was called to give evidence. After she had finished answering the questions put to her, she went to leave the courtroom. That meant that she had to come close to the dock where you were seated. As she came near you, you stood up and shouted to her words to the effect that she was finished and that when you got out, you would cut her head off. The victim impact statement from Ms J spells out the traumatic consequences for her of that threat to kill her.
8 You are now 21 years of age. You were born in April 1984. You were born into a large family. You have ten brothers and sisters. You are intellectually challenged, although not grossly intellectually disabled. You had difficulties at school. You found the schoolwork hard. Other students made fun of you. During those school years you were sexually abused. You turned to illegal drugs towards the end of your time at school. The drugs could only have increased the developing problems of your distaste for life, your paranoia, and other distortions of your capacity to fit in with the wider community. The drugs also increased the potential for the development of hallucinations and other psychotic symptoms.
9 Your work record is limited. It consists of little more than casual work as a butcher's assistant. On the other hand, in the period of over a year that you have been an inmate at Port Philip Prison, you have settled down to work there in the laundry.
10 You have prior convictions. In July 2001, after a number of convictions, including for assault, you were sentenced to detention in a youth training centre for four months. In February 2002, after further convictions, including for assault, you were sentenced to imprisonment for one year with a non-parole period of six months. You were later to claim, and on a number of occasions, of your having been raped on being admitted at the age of 17 to adult prison.
11 I have reviewed carefully the reports of the psychologist, Dr Kennedy and the psychiatrist, Dr Sullivan, as well as other reports referred to by them. Dr Sullivan concluded that you were not mentally impaired as legally defined, and that you did not have a psychotic illness. He also concluded that you may be prone to psychotic symptoms when under stress or when influenced by drugs. I accept those conclusions. I weigh in your favour that in early March 2004, you were at times, prepared to seek treatment. Regrettably for you and for the Adhikari family, you vacillated. At times, you co-operated with those trying to treat you. At other times, the heroin addiction proved too strong.
12 I must allow in your favour for a number of mitigating factors. You have pleaded guilty, and at an early stage, although not at the earliest possible stage. You have shown some signs of remorse, but there is ambivalence there, as revealed in your threat to Ms J. You are young. Youth is always a significant mitigating consideration. You have a family that is still supportive of you. Your intellectual deficits and mental health problems are to be taken into account in a limited way. They reduced the choices open to you. But too often, you have made wrong choices, and you must accept the consequences of those choices
13 You viciously stabbed to death a vulnerable taxi driver sitting in his taxi, waiting for his fare of a few dollars. I accept that it was not a planned attack, and that you acted spontaneously when adversely affected by drugs.
14 I have signed the disposal order, there being no objection to my doing so. There are 609 days by way of pre-sentence detention. I direct that that be recorded. On the murder count, I impose a sentence of imprisonment of nineteen years. On the threat to kill count I impose a sentence of two years, concurrent as to one year with the murder count. The effective sentence is twenty years. I fix a non-parole period of fifteen years.
R
Khoder [2005] VSC 445