R v Sok [2012] VSC 229

3 You and Ms Wichman had been in a relationship from January to March 2011. As at 21 April 2011, Ms Wichman slept in the annexe at the site, and you in the caravan. When Mr Singh arrived at the site, Ms Wichman was with a friend, sitting on Ms Wichman's bed looking at Facebook on a laptop computer. Ms Wichman, Mr Singh and the friend all went outside to smoke cigarettes. They returned to the annexe and the friend left about ten minutes later.

4 Ms Wichman and Mr Singh sat on Ms Wichman's bed with the computer between them and a blanket wrapped around them. Mr Singh was showing Ms Wichman some photos of his family in India. The television was on, as was a bedside light.

5 You came out of the caravan and, without speaking to Ms Wichman or Mr Singh, returned to the caravan, and then came into the annexe less than a minute later. At this stage, it was approximately 1.15am on Friday 22 April 2011. You walked over to the bed and stabbed Mr Singh near the left clavicle with a knife. You said nothing before doing this.

6 You then told Mr Singh to get out. At this stage, Ms Wichman yelled, "You just stabbed him". Mr Singh fell back on the bed. Ms Wichman put pressure on the wound to try and stem bleeding. She called her employer, who also lived in the caravan park. You went back to the caravan and, shortly afterwards, drove away (ultimately being arrested and taken into custody in Springvale at 8.25am that morning).

7 An ambulance was called. While waiting for the ambulance, Ms Wichman provided CPR to Mr Singh.

8 At about 1.45am, ambulance paramedics arrived and examined Mr Singh, but he was already dead. A deep stab wound near Mr Singh's left neck and shoulder junction was observed, together with extensive bleeding. The total length of the wound you inflicted was at least 15 cm. According to the pathologist, on a scale of mild/moderate/severe, the force required to produce the wound was at least moderate. A post-mortem revealed that the stab wound had severed Mr Singh's left subclavian artery, causing bleeding around the heart, that led to his death. Mr Singh was 28 years of age at the time of his death.

9 You were born on 5 May 1973 in Cambodia. At the time you murdered Mr Singh, you were 37 years of age.

10 As described by your counsel, your upbringing was a simple one in a family which was quite poor. You are the eldest of five children, all of whom still live in Cambodia. You completed the equivalent of Year 10, but did not pass your Year 10 examinations. While you commenced work as a government employee in environment management, your employment in Australia has essentially been factory work and seasonal picking.

11 You came to Australia in 1997. You have been married twice. Both marriages failed. You have a seven year old son who you have not seen since he was three months of age.

12 On 24 April 2012, you were examined for approximately an hour and a half[1] by Mr Jeffrey Cummins, a consulting clinical and forensic psychologist. Mr Cummins' report following this examination was tendered in evidence and Mr Cummins gave evidence on your plea hearing. In substance, Mr Cummins expressed the opinion that at the time you murdered Mr Singh, you were suffering from a chronic dysthymic disorder. This disorder was not diagnosed prior to Mr Cummins' examination. Further, this dysthymic disorder has never been the subject of any treatment (either before or after you were taken into custody). Mr Cummins gave evidence that a dysthymic disorder is a depressive disorder which is essentially one level of seriousness below that of a major depressive disorder.

13 Mr Cummins gave evidence that your dysthymic disorder was triggered at least as a result of your second wife ending her marriage with you, although he said it may also have been triggered as far back as the end of your first marriage. He then said that the link between your murdering Mr Singh and your dysthymic disorder was the similarity of their causes (rejection by a partner or former partner). Additionally, at another point in his evidence, Mr Cummins said that the part played by the dysthymia in your offending was that your "perception and judgment was skewed, and particularly as it related to intimate relationships"

14 Mr Cummins' evidence was heavily contested by the Crown in cross-examination. The Crown contested both the extent and severity of any dysthymic disorder and the existence of any link between the dysthymic disorder and your offending. The Crown's position was not without substance.[2] In my view, while you may have been suffering from some chronic level of depression at the time you killed Mr Singh, it was not such as to significantly reduce your moral culpability or mandate a significant moderation in either general deterrence or specific deterrence. That said, I do not totally reject Mr Cummins' evidence. I am prepared to conclude that there should be some limited moderation of both general deterrence and specific deterrence in this case as a result of a limited reduction in your moral culpability arising from your dysthymic disorder.[3]

15 Notwithstanding my limited acceptance of Mr Cummins' evidence, I do accept that you suffer from a level of depression that, coupled with your isolation (in the sense that it is likely that you will receive few, if any, visitors during the term of imprisonment I am about to impose), will make imprisonment more burdensome for you than might otherwise be the case.

16 The Crown submitted that your attack on Mr Singh was a "cowardly, unprovoked attack on a young man". I agree. It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances. As has been said before,[4] the Court has a duty in the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who by resorting to violence destroy such life. There must never be any doubt about the commitment of the community, and the Court through which it speaks, to defend the importance of human life with the imposition of substantial penalties where an offender kills another member of the community with murderous intent and without lawful justification or excuse.

17 I have read and re-read several times the Victim Impact Statements of Mr Singh's father, mother and brother, and the Victim Impact Statements of Dorothy Fakaia, Ranvir Ranvir and Miss Wichman. They are eloquent documents, showing the devastating impact of your crime on those victims. In determining the sentence to be imposed upon you, I have taken into account the admissible parts of the Victim Impact Statements tendered before me.

18 There are matters which tell in your favour in the exercise of the sentencing discretion. First, prior to murdering Mr Singh, you were a man of good character without any prior convictions. I accept that you had successfully held down employment from the time you left school, and that you had shown nothing to suggest that you were other than a law abiding and self-supporting member of the community. I also accept the reference from the owners and managers of the caravan park (Pam Gullifer, Les McLellan, Penny Smith and Terry Green) that over the five to six years they have known you, you had always been of good character.

19 Secondly, I accept that you pleaded guilty at the earliest opportunity and that you have shown significant remorse for your crime. This augers well for your rehabilitation. On all of the material tendered, I accept that you have good prospects for rehabilitation, notwithstanding the appalling and disgraceful nature of your crime. That said, your life will go on; Mr Singh's will not. This is a matter that is entirely your fault.

20 The Crown has accepted your plea on the basis that at the time you stabbed Mr Singh, you intended to cause really serious injury, rather than intending to kill him. It is, of course, to be remembered that the mental element of the crime of murder is satisfied by establishing beyond reasonable doubt that the accused killed the victim with an intention to cause really serious injury and without lawful justification.

21 As well as the maximum sentence and the matters referred to in s 5(2) of the Sentencing Act, the Court must consider the purposes for which sentences may be imposed, being:

(a) to punish the offender to an extent and in a manner which is just in all the circumstances;

(b) to deter the offender or other persons from committing offences of the same or a similar character;

(c) to establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated;

(d) to manifest the denunciation by the Court of the type of conduct in which the offender engaged; and

(e) to protect the community from the offender.[5]

22 Taking all of the matters to which I have referred into account, and having due regard to the principles of parsimony and proportionality, I sentence you to 18 years' imprisonment for the murder of Lakhwinder Singh and I fix a non-parole period of 14 years. If you had not pleaded guilty, I would have sentenced you to a period of 22 years' imprisonment with a non-parole period of 18 years.

23 I declare that, pursuant to s 18(4) of the Sentencing Act, you have already served a period of 409 days in custody, and I direct that this fact be noted in the records of the Court. I will also make the orders sought pursuant to s 464ZFB(1) of the Crimes Act 1958 and s 78(1) of the Confiscation Act 1997.

[1] With the assistance of an interpreter.

[2] I did not find Mr Cummins to be a particularly impressive witness. He appeared to be more in the nature of an advocate than a truly unbiased expert seeking to assist the Court (cf paragraphs 1 and 2 of the Expert Witness Code of Conduct mandated in civil proceedings by rule 44.03(2) of the Supreme Court (General Civil Procedure) Rules 2005). Specifically, I was unimpressed by (and reject) Mr Cummins' evidence that there is "an elevated risk of someone committing a crime when they suffer from a dysthymic mood disorder".

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[4] R v Gemmill [2004] VSC 30, [57] (Osborn J).

[5] Section 5(1) of the Sentencing Act requires these purposes to be considered individually, or if relevant, in combination.