R v Singh [2010] VSC 299

3 For the most part I have relied upon the evidence of your daughter, Sarabjit Kaur, and her cousin, Rajpreet Harry, to acquire an understanding to the background to your offending. For as long as Sarabjit can remember there was fighting and arguing as between you and your wife. She remembers this hostility as instigated and propagated by you. The children would stay outside the house crying while you set about beating their mother.

4 Regularly you would falsely accuse your wife of having affairs. Your daughter states, and I accept, that if your mother even spoke to another man there would be physical consequences. For cultural reasons that I am unable to comprehend, these beatings were not reported to the police. Sarabjit states that over the last few years the fighting and beatings became considerably worse. You would kick your wife, hit her and use objects to inflict pain upon her. I quote your daughter:

Sometimes he would use things like a hammer to hit her and other times he would hit and kick her. I have never seen any person like this before. He would abuse her nearly every day and the physical beatings would happen almost once a week.

5 Your erratic and violent behaviour was accompanied by an extraordinary consumption of alcohol and perhaps opium. You reported to a Clinical Neuropsychologist that from the age of twenty or so you would drink the equivalent of one bottle of whiskey per day every day. Additionally, you reported consuming up to two kilograms of opium poppy husks per month, plus a more pure form of opium from time to time. I have no way of measuring the accuracy of these assertions, however more generally your heavy daily drinking is corroborated by your daughter. Certainly you suffer from organic brain damage that is consistent with long term alcohol abuse. I shall return to this aspect.

6 Your daughter Sarabjit has set out why she left India:

As things started to become worse, I wanted to get away from my father. My mother also wanted to leave but shouldn't leave because of my younger brother and sister. My mother spoke to my father about sending me to a foreign country so I could study. This was the only way I could get away from my father.

Sarabjit came to this country in June 2007. Your wife would telephone her regularly. Sarabjit recounts her mother's distress and your accusations of her affairs. She also recounts the belief that Mohinder held that you would end up killing her.

7 Sarabjit returned to India for her older sister's marriage in March 2008. You continued to drink and treat your family poorly. Your wife continued to cry and you slept as your daughter left to return to this country. Sarabjit sought help in Australia to remove her mother from this environment and a twelve month tourist visa was arranged without your knowledge. Your wife arrived here in October 2008 and spent some happy and fulfilling months with Sarabjit.

8 Some months later after extracting a promise from you that you would not drink your daughter arranged for you to come to Australia. You arrived in March 2009. You had stopped drinking and whilst living with your wife and daughter your conduct towards your family improved significantly. Both Sarabjit and Rajpreet speak of a relatively harmonious time. Your family arranged for you to spend four days in the Sikh Temple in Craigeburn where they endeavoured to treat your alcohol addiction with prayer.

9 Your mood seemed to have changed by the start of the week in which your wife died. On 4 May 2009 you were seen crying and expressing a desire to die. You stated, falsely, once again that your wife was having affairs. Whether you actually believed your allegations is a different issue - on balance after hearing Dr Sullivan's evidence I am inclined to the view that you did have that belief. I am completely satisfied, however, on the evidence that your wife was not having any illicit affairs and your allegations were the product of your fevered imagination.

10 You seemed to have recovered an even demeanour the next day, and on Thursday 7 May when Sarabjit arrived home from work all seemed well:

When they were having their tea they seemed happy and mum was laughing. At about 5pm both Mum and Dad left to go for a walk and Kulwinder stayed at home. They didn't say where they were going or how long they would be.

11 At approximately 5.00pm you and Mohinder left the house in Newman Crescent, Niddrie to walk towards the lake a short distance away. Your daughter telephoned Mohinder at 6.24pm. Mohinder was crying and told Sarabjit that you had taken a wooden stick from the ground. She heard what sounded like a crack and the last words she heard her mother utter were: "Neena, your father is killing me".

12 What followed then was a brutal conclusion to your wife's life. You beat her with a large heavy stake until she was dead. A passer by, Mr Nguyen, heard at least five very loud noises similar to wood striking a hard surface. Dr Woodford, a Forensic Pathologist, described multiple skull and facial bone fractures, as well as fractures to the larynx and acute subdural and subarachnoid haemorrhaging. He estimated there were a minimum of three or four blows to the scalp/forehead region with further blows to the mid facial and neck regions. In short, you beat your wife, the mother of your children, to a pulp.

13 Your daughter arrived at the scene; you had walked towards the Valley Lake and entered the water. You said to her: "I killed your mum and I will die now." The police arrived shortly thereafter.

14 Your solicitors sought evidence of your cognitive functioning, initially to assess your fitness to plead and any availability of a mental impairment defence. Whilst you are fit to plead and there is not evidence to support a mental impairment defence, I have no doubt that at the time of offending you were significantly cognitively impaired. Dr Lindsay Vowels, a Clinical Neuropsychologist, assessed you on 15 September 2009; that is a little over four months after the death of your wife. She assessed you as an unreliable historian and passive and unresponsive during testing, although cooperative. Your modest inherent intellectual abilities have been substantially compromised in the areas of memory and attention, new learning, conceptual flexibility, regulation of behaviour, planning and organisation, problem solving and decision making. This is as a result of your longstanding alcohol abuse and perhaps opium use. Her diagnosis was one of organic dementia consistent with an alcohol related dementia. Dr Vowels commented upon your endless insistence of your wife's supposed adultery and proposed a psychiatric examination.

15 Your solicitors accordingly requested that Dr Danny Sullivan, psychiatrist, examine you which occurred on 9 February 2010. Dr Sullivan's history relies to some extent on your word, although all relevant witness statements were made available to him as was your interview and Dr Vowels' neuropsychological report. In his report Dr Sullivan expressed the opinion that your cognitive impairment had improved somewhat. This he thought was consistent with the natural history of alcohol-related brain dementia, in which cognitive function often improves with substantial abstinence.

16 You denied to Dr Sullivan that your actions were to do with any perceived affair and in fact were triggered by your wife's refusal to return to India. As I have observed, the purpose of Dr Sullivan's initial assessment was to assess your fitness to plead and any mental impairment defence.

17 Dr Sullivan gave oral evidence and was cross-examined on the plea. In his opinion, a symptom of your compromised mental state is your capacity to confabulate; in other words your capacity to generate bizarre details to fill in gaps in your memory with those details becoming accepted by you as the truth.

18 Dr. Sullivan was guardedly optimistic for your future. Your cognitive impairments and the syndrome that gives rise to your confabulated beliefs (Korsakoff's syndrome) have improved and will continue to do so given your now lengthy abstinence from alcohol, although it is unlikely that you will return to what he described as your previous baseline.

19 Dr Sullivan thought that in a non-custodial setting, you would be unlikely to be able to live independently. Dr. Sullivan expressed the opinion, which I accept, that there was a link between your offending conduct and your mental condition. Your then cognitive deficit would have impaired your ability to think clearly and calmly.

20 I accept that your final actions towards your wife were unplanned. Mr Dempsey submitted that I should distinguish this case from planned, cold blooded killings, or killing for greed, revenge or that are protracted and essentially sadistic in nature. Naturally these are readily made distinctions, and I make them, but it cannot be overlooked that this murder was the culmination of a long history of brutality towards your wife. In that sense your conduct was protracted, although your final actions were swift and unplanned.

21 I have read the Victim Impact Statement of your daughter Sarabjit. The anguish you have caused her and no doubt your entire family is profound. She blames herself for facilitating your passage to Australia. She is living an isolated life in another capital city and sending the majority of her salary to support the family that you, by your actions, have abandoned.

22 You are entitled to the benefit of your plea of guilty. By your plea you have saved the community the expense of both a committal and a trial. Additionally, you have spared the witnesses, including your daughter, the trauma of two court hearings. I accept that your plea was entered at an early stage. You are entitled to the full benefit of your plea as it relates to the above factors. I do not accept, however, that your plea evidences remorse.

23 I am not satisfied that you have any genuine remorse. This may be explained by your organic brain damage and/or your psychiatric illness. The fact that I am unable to make a finding of remorse is not an aggravating factor; it is simply an absence of a mitigating factor. Your assertion in your interview with police that you struck your wife only three times is obviously incorrect, as is your assertion that you hit her with only "small strength" because you did not want her to die. You now deny to Dr Sullivan that your perception of an affair was in any way related to your offending. Dr Sullivan adverted to observations made by Justice Health staff that you were seen crying in your cell and of an attempt you made to hang yourself. He speculated that these may be evidence, at least in part, of remorse. Whilst this may be the case, I consider that it is more likely that these actions were a response to your predicament rather than a response to any real concern you may have felt towards the deceased and your family. In your daughter's Victim Impact Statement of 18 March 2010 she states the following:

20. I wanted to see my father to ask him why he did this to my mother. So in June 2009, I went to the prison in Spencer Street, Southern Cross.

21. My brother Baljinder SINGH had already spoken to my father from India. My brother told me that my father had told him my mother was arguing with him, to justify why he killed her. I knew this was a lie because I was on the phone to my mother when she was killed and she not arguing with him.

22. When I saw my father I asked him why he was lying to my brother about my mum arguing with him. He started crying asking me to forgive him.

23. My father asked me not to tell the police about that because he was still hoping he would get out and they would send him back to India.

24. He asked me to tell the psychiatrist that he was crazy and on medication, which is a lie.

25. After that visit, later in June 2009, I went to India to take my mothers ashes there.

27. When I was in India I got a phone call from someone in prison with my father, then my father got on the phone and said he wanted to see me again.

28. When I got back to Australia I went to see him because he asked me to. This was in August 2009. I was upset because he didn't seem to care about what he did to my mother or make up for it.

30. He asked for money to buy cigarettes and I refused.

24 That Victim Impact Statement is in the form of a statutory declaration and was tendered at the plea. You did not seek to dispute any of its contents. I am unable to conclude that you exhibit genuine remorse.

25 You have no prior convictions and are entitled to some benefit for this. I have set out the unfortunate details of your prior relationship with your wife. It can hardly be said that your conduct of 7 May 2009 was an aberration in a prior exemplary life. Your long term history of physical abuse towards your wife tempers this aspect of mitigation, but does not eliminate it.

26 I am satisfied that the sentence I am shortly to pass will be served by you in circumstances of hardship well above and beyond the normal hardship that accompanies any loss of liberty. You speak no English at all; your family are mostly in India and those that are here are understandably reluctant to have any more to do with you; I am told that you are the only Punjabi speaking prisoner in the State prison system; you suffer from a depressive illness and mild alcohol related dementia; you are prone to confabulation. I accept the next phase of your life will be considerably more difficult for you than other prisoners and I have moderated the sentence that I will impose to reflect this.

27 Dr Sullivan, whose evidence I have reviewed, expressed the opinion that there is a nexus between your mental state (comprising an inherently low premorbid intellect, alcohol related dementia and an adjustment disorder with depressed mood) and your offending. I accept this. I consider your propensity to confabulate is likely to have provided the confused motive for your offending (i.e. adultery) and is also a likely explanation for your entirely unreliable and self-serving assertions to various people since your offending. In the circumstances, I believe it is appropriate to moderate somewhat the otherwise powerful sentencing considerations of general and specific deterrence in your case. I also accept that your moral culpability is to some extent reduced by your impaired mental functioning, although I am in no doubt that when you killed your wife you knew precisely what you were doing. The nature and severity of your attack also leaves me in no doubt you intended to kill your wife. I accept that the nature of your mental state, along with other unrelated factors, means that your sentence will weigh more heavily upon you than other prisoners.

28 I consider your prospects for rehabilitation are only fair. Those prospects are limited by the same factors that moderate aspects of deterrence, namely your alcohol related dementia and depressive illness. The course of alcohol related dementia can be halted with abstinence and in fact your cognitive functioning has improved significantly since you were initially assessed by Dr Vowels in September of last year. I consider that any prospect of you rejoining society as a useful contributor is largely dependent on your future abstinence from alcohol. This is in your hands.

29 This is a difficult sentencing exercise. Your conduct demands denunciation and punishment. Aspects of deterrence, both specific and general, must receive weight in the sentencing process, but as I have observed, somewhat less than would otherwise be the case and I regard the hardship that you will encounter in the custodial setting as quite a significant factor.

30 On the count of murder you are convicted and sentenced to be imprisoned for 17 years. I direct that you serve a minimum of 13 years and six months before becoming eligible for parole.

31 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that the sentence I would have imposed but for your plea of guilty would have been 19 years and six months imprisonment with a minimum term of 16 years before being eligible for parole.

32 I declare pursuant to s 18 (4) Sentencing Act 1991 that the period of 418 days in pre-sentence detention be reckoned as already served under this sentence and I so certify.