R v Shankar [2004] VSC 132

5. You were born in Fiji on 1 December 1976. You are now, therefore, 27 years old. You had an inauspicious childhood. You never knew your father. You have no brothers or sisters. Your mother suffered from catatonic schizophrenia, with prominent paranoid delusions. Before you were born, she was on at least three occasions, but possibly as many as eight, admitted to hospital for this condition. During those years, she made several unsuccessful attempts to commit suicide. It is a tragedy that, two years after you were born, she succeeded.

8. In those circumstances, you were fortunate to be raised by your mother's parents. They lived on a small sugar plantation not far from Suva. Life was hard. You completed primary school and had some three years of secondary schooling. But your education had its own difficulties as you sought, not with entire success, to find your place in the school community. Your experience then may well have been covered by what Dr Wood, the psychiatrist who at the request of the Court prepared a pre-sentence report about you, described as your "considerable psychological vulnerabilities". You nevertheless achieved what many children have great difficulty in doing. You acquired a second language. Your first is Hindi. You also speak English.

11. When you were 12 years old, or perhaps a year older, your grandparents migrated to Australia. You were then placed in the care of an aunt and uncle. This was an unhappy extension of an unhappy time at school. Your uncle was a bully. You were the victim of his misbehaviour. Your suffering was both physical and mental. You left school at about the age of 15, and commenced work in a factory.

14. This situation continued until you were 17. You then became once again the beneficiary of your grandparents' kindness. They adopted you. This enabled you to apply for, and be granted, residential status in Australia as their child. You came here to live in 1993. They had a home in Sunshine, and you lived with them. For a short time, you attended school in Victoria. After you ceased to study, you commenced work as a labourer. With occasional periods of unemployment, you otherwise remained in work. You obtained a forklift driver's licence. You entered a period of life of which you can be proud.

17. It was a time which nevertheless had its difficulties. You moved to Campbelltown in New South Wales, where you lived with an aunt and obtained a job as a process worker. But you were troubled by hallucinations and by suicidal thoughts.

20. In 1999, when you were 23 years old, your family arranged your marriage. In October that year, you returned to Fiji to meet your future wife. She was then 17. She is even now only 22. After about two weeks with her and her family, you returned to Australia as her fiancee. She obtained a tourist visa, and came to live in Victoria. In March 2000 you were married. The wedding had been fixed for late 1999, but was delayed by the death of a relative in Fiji.

23. After your marriage, you and your wife lived at Flat 4, 8 Burnewang Street, Sunshine. It was a crowded beginning to married life, because for a time your adoptive parents and your wife's grandmother lived with you.

26. Your aim was to save enough money to purchase or build a house and raise a family. You were employed at Diamond Press, and enjoyed a gross wage of up to $1,200 per seven day week.

29. Your first child, Jessica, was born on 20 January 2001. You were and are a fond father to her and her brother, Rahul, who was born on 30 May 2002. But your health was continuing to deteriorate. You suffer and suffered from depression. This caused difficulties in the marriage. Help, however, was available. Your church, your relatives, and your doctor were ready to give assistance. Zoloft and Serepax were prescribed, along with some other medications. A course of treatment was devised. You, however, failed to take full advantage of any of this. Perhaps the reason why you failed to take advantage of the assistance which was available to you lies in what Dr Wood describes as your "limited, relatively unsophisticated emotional vocabulary and minimal capacity for introspection".

32. Whatever the explanation for your failure properly to respond to your problems at that time, that failure was particularly unfortunate. Your wife was then pregnant with Jessica. After your daughter's birth, your wife herself became depressed, and commenced taking Zoloft. Your lack of insight into your own condition, and your failure to look after yourself appropriately, could not have assisted your wife's recovery.

35. In these circumstances, it was particularly unfortunate that, in June 2001, Diamond Press ceased to operate. You were then unemployed for several months until one of your wife's uncles assisted you to obtain work in Thomastown. This, however, was only for a month, after which you recommenced on unemployment benefits. Your financial circumstances, once relatively favourable, deteriorated. Your marriage fell upon increasing difficulties, fuelled at least in part, by your drinking habits. These were themselves becoming a problem, as was your inability to control your temper. On 20 September 2001, your wife sought sanctuary in a women's refuge. This effectively marked the end of your life together, although brief periods of cohabitation followed. On 8 October 2001, your wife obtained an intervention order against you.

38. You breached that order. At a family party in late December 2001, only a month before Jessica's first birthday, you found yourself present with your wife. This was doubtless on its own a breach of the order. Your offence was then compounded by your becoming involved in a heated argument with your wife, who tried to escape by going to a bedroom and closing the door. You attempted, by banging on the door and by shouting at your wife, to persuade her to open it. Members of your family eventually removed you.

41. On 12 May 2002, you appeared at the Magistrates' Court at Sunshine. You were charged not only with breaching an intervention order, but also with stating a false name and address. You pleaded guilty. You were convicted and sentenced to be released on an undertaking to be of good behaviour for a period of 12 months. It was an undertaking which you have since breached. Indeed, the evidence available to me leads to the inevitable inference that you never allowed either the intervention order or that undertaking to interfere in the slightest with what you for your own self-centred reasons determined was in your own particular interest. The interests of others, in particular the interests of your wife and therefore your very young and very dependent children, were at best secondary and at worst entirely ignored.

44. It would of course be wrong of me to add to the sentence I must impose today any element of punishment for a breach of your undertaking to the Magistrates' Court at Sunshine. I take that breach into account only as an indication of your inability properly to appreciate how your actions might impact even on those, such as your wife and especially your children, who you love and for whose affection you crave.

47. The intervention order prevented you spending time with your daughter Jessica and son Rahul. This was not necessarily in their best interests. On 3 July 2002 the Family Court attempted to preserve your familial ties with them. The Court made orders allowing you and them to remain in physical contact. But strict boundaries were placed around the arrangements. Contact was to be at the place at which your wife then lived, but was to be supervised by especially nominated persons while your wife was not in the room with either you or the children.

50. You took advantage of the Family Court's preparedness to involve you in this way in the lives of your children. At first, that advantage was taken in accordance with the terms of the orders of the Court. It was not long, however, before you were in breach. On 16 July, at the end of the two hours' contact allowed by the Family Court, you acted as if you were prepared to do what the Court said you must do. You indicated that you would depart with the supervisor. She indeed left. You did not. You simply walked out the door. When the supervisor drove away, you returned. A faint suggestion was made on your behalf that your wife agreed to this. I do not accept that she did. At most, for a time she put up with your continued presence because she had no real alternative. Later in the evening she insisted that you leave. You ignored her requests.

53. Some time before midnight it became plain that your object in imposing yourself on your family that evening was to persuade your wife to live with you again. She was unwilling. You are, in my opinion, responsible for the resultant arguments. You are responsible for taking hold of a knife with a blade 20 cm long. Nothing can excuse the savage attack on your wife which followed. The injuries inflicted upon her are described in a report dated 29 May 2003 prepared by Mr Nicholas Maartens, a consultant neurosurgeon at the Royal Melbourne Hospital, where your wife was treated.

56. The report is headed with your wife's name. Insofar as it is relevant, it reads as follows:

"This 21 year old female was admitted to the Royal Melbourne Hospital Emergency Department at 55 minutes past midnight on 16 July 2002. She had been assaulted by her estranged husband with a kitchen knife while holding her one year old daughter in a witnessed attack and stabbed multiple times. During the attack she collapsed, transiently losing consciousness. She was found shocked, drowsy and confused in a pool of blood by the emergency ambulance team that had been called immediately by a relative. Her numerous stab wounds are illustrated in both the ambulance officer's report card and later by the Emergency Department intern and team the same day. There were four stab wounds in the region of the right shoulder blade, another in the neck to the left of the midline, another to the left shoulder, and three wounds just above the left breast and a further two stab wounds to the left forearm. The patient's stab wounds were sutured after being irrigated and explored. Her neck wound later began to leak CSF. We thus requested extra skin sutures and advised intravenous antibiotics to prevent possible meningitis. Despite the local pain and subsequent functional problems that these numerous stab wounds caused, there were three, possibly more, stabs that caused significant underlying damage. The first was the stab that punctured her right lung requiring the insertion of an intercostal chest drain. The second was a stab to her left shoulder resulting in her left hand being clawed as she is unable to extend her left wrist or fingers. The third is a wound to her neck. This deep wound fractured the posterior elements of the second cervical vertebrae just beneath the base of the skull, deep to the neck muscles. It is possible that had this stab not been partially deflected by the spinous process, it would have transected the spinal cord at that level, resulting in death or ventilator dependent tetraplegia. The wound unfortunately just lacerated the dura mater covering the spine cord resulting in leakage of CSF and chronic intracranial hypertension and headaches that we are not sure we can treat successfully. As her physician, it would be remiss not to comment on the psychological trauma this attack must also have inflicted upon Mrs Shankar and her children. She was admitted for a period of eight days and is still receiving outpatient management for active sequelae of her assault that still might require surgical intervention. She is fortunate to have survived".

60. The attack was witnessed by a friend of your wife's Ronita Singh. She described how, with your wife holding Jessica, you stood directly in front of her and stabbed her repeatedly in the chest. Ms Singh got Rahul out of the room and ran to seek help. When she was outside, she saw you emerge with Jessica. You took your daughter to your grandfather's house and then drove to the Sunshine Police Station. You arrived at 12.45 a.m. You reported that you had killed your wife. You have been in custody ever since. I of course take into account the fact that you gave yourself up immediately after the offence and that you have pleaded guilty to intentionally causing serious injury to Ekta Shankar. I must also take into account your mental health.

63. This has not been easy to assess. Indeed, the experts themselves are uncertain about the extent of the mental disability from which you undoubtedly suffer. Having carefully read all the reports put before me, however, I am satisfied that the assessment made by Dr Wood is one upon which I can properly rely. It is her opinion that you have never suffered a severe mental illness although (as I have already noted) you have considerable psychological vulnerabilities. The harsh and emotionally impoverished upbringing which you experienced undoubtedly contributed to those vulnerabilities. In particular, the fact that you knew neither of your parents and were forced to spend a very important part of your childhood with unsympathetic, indeed cruel, relatives, has had a markedly adverse impact upon your self-image. You accordingly tend to be highly anxious in the face of threatened or actual abandonment, have a poorly developed capacity to reassure yourself and tend to adopt the immature posture of an undeserving victim. You presently suffer from depression of mild to moderate severity, and are under medication for that condition. I am satisfied that, at the time of the offence, your ability to reason was adversely affected. On the other hand, I am also satisfied that you understood what you were doing and knew that it was wrong. You were not suffering from what the cases sometimes describe as a serious psychiatric illness not amounting to insanity. Accordingly, in my opinion, it is proper, in considering the appropriate sentence to impose upon you, to conclude that your moral culpability is less than that of someone in full command of his mental faculties. At the same time, it would be equally inappropriate to equate your degree of culpability with that of a person suffering from a serious psychiatric illness.

66. In assessing the appropriate sentence, I have taken into account the victim impact statement prepared by your wife. I have also had regard to your unblemished prison record, including the fact that while in custody you have completed courses in asset maintenance, hospitality, information technology and engineering technology. You have also undertaken a course on relapse prevention during which you demonstrated a good insight into your alcohol problem. I note, in addition, the favourable reference you have received from Sister Monica Weedon. Also taken into account is the likelihood that, because of your fragile psychological state, imprisonment will affect you more severely than most.

69. Your remorse is another issue to which I have had regard in your favour. You perhaps lack the capacity to empathise adequately with the anguish of your wife, given the hugely adverse impact which your assault has had upon her. I nevertheless accept that, to the limit of your ability, you are genuinely remorseful.

72. In this context, I should say a further word about the victim impact statement. Having read it, I accept that the quality of life presently enjoyed by Ekta Shankar has been very greatly diminished following your attack upon her. The impact both physical and mental of the events of the evening of 16 July 2002 will never leave her. Indeed, that impact will be compounded by the knowledge that your daughter, Jessica, will for very many years remain traumatised by her memory of the savage attack which you perpetrated on her mother.

75. In all the circumstances it seems to me that the appropriate sentence is 7 years' imprisonment. I direct that you serve 4 years before being eligible for parole. For the purposes of s.18 of the Sentencing Act, I declare that the period to be reckoned as already served under the sentence is 631 days. I direct that there be noted in the records of the Court the fact that the declaration has been made and its details.