R v Walia [2022] VSC 12

2 Your offending may briefly be described. It is fully described in the Crown opening, Exhibit A, and I need only set out the essential facts.

3 You were born in India and came to this country in November 2014. At the relevant time you were working as a courier driver.

4 In September 2019, you were living with Parmjit Singh (for convenience, 'Parmjit') in a four bedroom house in Fisher Street, Maidstone. He was aged 25 years, and was employed as a mechanic at a mobile mechanical and engineering company in Dandenong, having moved to Australia in July 2014. Other occupants of the house were Karanbir Singh ('Karanbir') and Ashish Sharma. You have known Karanbir, your cousin, since childhood. Your respective families are close and lived in the same village in India. Karanbir moved to Australia in 2014 on a Bridging Visa. All four of you were renting.

5 In the late afternoon of 6 September 2019, you picked up another male, Harmanpreet Singh ('Harmanpreet'), from accommodation he was vacating, intending that he move into the Fisher Street house. You and Harmanpreet arrived at Fisher Street at about 6.40 pm. Harmanpreet went into Parmjit's bedroom to introduce himself, whilst you went to your bedroom. You then went to Parmjit's bedroom and told him that Harmanpreet was going to share the room with him. Parmjit apparently was not happy with that arrangement. You and he argued and then started to fight.

6 As you and Parmjit threw punches at each other in the hallway, Harmanpreet and Karanbir - who had heard the altercation and come out of his bedroom - tried to stop you fighting by standing between you and Parmjit. All four of you were standing in a small area between the front door and the doorway to the kitchen.

7 Parmjit told you that Harmanpreet should share with Karanbir. You and Parmjit appeared to calm down and stopped arguing. As you walked into the kitchen, however, having turned your back to Parmjit, he lunged at you and punched you in the back of the neck. You exited the kitchen and lunged at him, so that he was backed up against the wall between the front door and the kitchen wall. The two of you continued to argue.

8 You then took a knife in your right hand, and swinging it in an overhand grip at shoulder height, you stabbed Parmjit three times in the chest and neck. He took a few steps towards the kitchen doorway, before collapsing to the floor, bleeding from the chest, neck and mouth.

9 Karanbir told you that an ambulance should be called. You told Karanbir not to mention your name, and to say that it was an accident and that the victim had injured himself. At 6.48 pm, Karanbir telephoned '000'. He then gave his mobile phone to Harmanpreet because he speaks with a stammer and wanted to make sure that the ambulance arrived quickly. Harmanpreet told the 000 operator that Parmjit had accidentally stabbed himself in the neck with a knife while cutting vegetables.

10 As instructed by the emergency operator, Harmanpreet and Karanbir assisted the mortally wounded Parmjit while you stood in the hallway.

11 You then took the knife with which you had stabbed Parmjit into the bathroom and put it into the bath, where you washed it before returning it to the kitchen. You then told Karanbir to clean the knife. He took this to mean that you wanted him to get rid of it. Believing that police would look for the knife, however, Karanbir did not do what you asked. Instead, he picked up the knife using a pair of black coloured underpants and placed it beside Parmjit on the floor.

12 Whilst Harmanpreet and Karanbir were assisting your victim, you told them not to tell the police what had really happened.

13 At approximately 6.59 pm, ambulance paramedics attended the scene. They moved Parmjit into a nearby bedroom with the assistance of Karanbir and Harmanpreet.

15 Paramedics observed that Parmjit had three chest wounds and that his clothes were soaked in blood. They administered CPR for 20 minutes with the assistance of police, but were unable to resuscitate him. He died at the scene at 7.25 pm.

16 Police separated you, Harmanpreet and Karanbir, and took the three of you outside. You falsely told Detective Senior Constable Gareth Mullins that you had arrived home and found the victim wounded on the kitchen floor. You repeated your false version of events in an elaborate statement made to police with the aid of an interpreter at 3.10 am the next morning.

17 You were arrested at 5.08 am on 7 September 2019. During your arrest, which was recorded, you told police that the victim had fought with you.

19 Police commenced an interview with you at 5.27 am, and suspended it at 5.30 am.

20 Harmanpreet was arrested at 5.40 am. He was interviewed at 11.54 am and subsequently released. At 2.30 pm, he made a second statement.

21 Police recommenced their interview with you at 4.27 pm, you being assisted by an interpreter. The interview was again suspended at 4.40 pm.

22 The interview recommenced at 5.00 pm. You gave 'no comment' answers when allegations were put to you. Specifically, when it was put to you that your written statement at 3.10 am was false, you said 'no comments'. When asked whether you wished to explain what had happened, you said 'No'. The interview was once more suspended at 5.31 pm.

23 Having been cautioned, at 6.53 pm you were examined with the assistance of an interpreter at Melbourne West Police Station by a forensic medical officer, Dr Michael Barrett, of the Victorian Institute of Forensic Medicine. The purpose of the examination was to determine whether you had suffered any injuries. You were found to have no injuries to either of your hands or the back of your neck. The only injury noted was a scratch abrasion to your right nostril. Photographs were taken of your face, the back of your head and your hands. You told Dr Barrett that you had been involved in an argument with your housemate, who had pushed his hands against your face and struck you to the back of the head. You said you had stabbed your housemate with a knife.

24 The interview recommenced at 7.17 pm. It concluded at 7.19 pm and you were charged.

25 On 7 September 2019 at 10.30 am, Dr Victoria Francis conducted a post mortem on the victim's body at the Victorian Institute of Forensic Medicine. Dr Francis found that the victim had suffered the following injuries which caused his death:

• a stab wound measuring 20 millimetres by 10 millimetres to the central lower neck extending through the sternum and soft tissue and perforating the brachiocephalic artery;

• a stab wound measuring 19 millimetres by 10 millimetres to the right hand side of the chest transecting the fourth rib and extending into the right middle lung lobe, causing haemorrhaging and a 200 mL right haemothorax;

• a stab wound measuring 10 millimetres by 5 millimetres to the left hand side of the chest extending through the pectoralis major muscle focally to the 4th rib costal cartilage;

26 Dr Francis' opinion was that the degree of force required to inflict the neck and right chest injuries was severe.

27 As I have said, you have pleaded guilty to one count of manslaughter, that plea first being entered on 21 October 2021. The prosecution accepts - as do I - that it is an early plea, demonstrating remorse and having utilitarian benefit. Furthermore, given that it is entered during the current COVID-19 pandemic, I consider it is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects, and should attract a more pronounced amelioration of sentence than a plea entered at another time.[2] Your plea has facilitated the course of justice, by obviating the need for a trial (with the associated cost and inconvenience), and, as I have said, indicates in my view a significant degree of remorse. I intend to ameliorate appreciably the sentence I would otherwise have passed in light of your guilty plea. In my opinion, those in your position who plead guilty - particularly those who do so during the course of the pandemic - must know that they will receive a palpable discount for so doing. It is a notorious fact that, as a result of limited contact visits, restricted educational and therapeutic programs and other matters, imprisonment generally is more burdensome during the pandemic than at other times. Moreover, those of us who work daily within it cannot ignore that the system of justice in this State is straining to cope under the weight of the pandemic. Pleas of guilty go some way towards alleviating that strain and, in my view, must attract credit in sentencing to those who enter them in times of COVID-19.

28 I also take into account the likelihood that you will be deported to India upon the completion of any sentence I impose. You had made a life for yourself in this country which you will not be capable of resuming, and will serve your sentence in the certain knowledge that your life here will be lost. No doubt you will serve your sentence anxious about your future. Deportation will for you have punishing consequences additional to the sentence I impose.

29 So far as your personal circumstances are concerned, you were born in Mirjan, a village in the Punjab region of India and had a normal upbringing, completing Year 12. You moved to Melbourne in 2014 to pursue educational and work opportunities. Upon arriving in Melbourne, you enrolled in English studies. You then studied business management for six months before going on to do a Certificate III and Certificate IV in Commercial Cookery at the PAX Institute of Education for two years. As a result of alleged sexual interference by a teacher you withdrew from that course. You worked as a kitchen hand at a restaurant in Melbourne for two weeks, and then worked in construction work and as a concreter for two years. At the time you committed the present offence you had been employed as a courier driver for approximately two and a half years.

30 You married in India in 2018, but that marriage ended as a result of your wife's reaction to you being charged. Contact with your parents in India has been maintained via 'Zoom' whilst you have been in custody. I take into account that you will, however, serve your sentence with little or nothing in the way of physical family presence or support.

31 In the course of your counsel's plea on your behalf, I received references from Gurwinder Singh and Jandeep Singh, both of whom spoke highly of you. They confirm my view that until the incident that led to Parmjit Singh's death you were a man of good character. That view is also confirmed by the absence of any criminal convictions in your history.

32 I have also taken note of the various certificates tendered on your behalf. It is unnecessary to recount their contents. They paint a picture, however, of a young man doing his best to better himself within the restricted means available to him.

33 A psychologist, Ms Gina Cidoni, assessed you via video-conference in November and December last year, in the course of which she administered as best she was able a number of well-recognised psychological tests. Pandemic restrictions prevented her completing full testing of your intellect, but Ms Cidoni expressed the view that cognitive testing raised concerns about your low intellectual abilities. Ms Cidoni provided two reports. In her opinion, you attracted the diagnoses of Major Depressive Disorder ('MDD') and Post-Traumatic Stress Disorder ('PTSD') with anxiety. Ms Cidoni thought that your sexual assault by a teacher had a significant impact upon you, and that the actions of the deceased resulted in retraumatisation. Against that background, in her report dated 7 December 2021, Ms Cidoni ultimately expressed the following opinions:

65. [The sexual assault] would have the effect of impairing his ability to exercise appropriate judgement and to think clearly, and it would have made him disinhibited. This process would have reduced his moral culpability as a result.

66. His current psychological presentation is very concerning. His remorse and sense of helplessness and hopelessness are palpable. He is resigned to spending a long time in prison and he can't see anything beyond it. His conditions would have certainly intensified after the crime and his time in prison is weighing more heavily upon him.

67. He is at low risk of committing further violent offending as indicated in the violence risk assessment. He has no signs of psychopathy or other risk factors like substance abuse, or prior offending.

68. Mr Walia requires targeted psychotherapeutic treatment to address his experiences and symptoms of PTSD and MDD. He was not he not [sic] receiving mental health support and his coping was poor in custody and he is at risk of further deterioration.

The prosecution did not seek to challenge Ms Cidoni's findings of MDD and PTSD. I accept that you are coping poorly in custody and are at risk of further deterioration, and will mitigate the punishment to be imposed upon you as a result.[3]

34 So far as the objective gravity of your offending is concerned, as I raised with your counsel, I have real difficulty in accepting Ms Cidoni's opinion that your offending was the result of 'retraumatisation'. My very strong impression is that your emotions had been aroused by your involvement in a heated argument with a good friend, and that you suffered a fleeting but intense burst of anger when he struck you from behind without warning at a time when you had been led to believe that hostilities between the two of you had ceased. I consider that you probably suffered a temporary loss of self-control and struck out with the knife whilst extremely angry, stabbing the deceased three times in quick succession when in that state. Your offending was not premeditated or cold-blooded. Rather, it was a sudden and aberrant response to an unusual situation. I note that, I having raised these matters with your counsel in the course of the plea, he chose not to call Ms Cidoni to give evidence on oath. Self-evidently, by its acceptance of a plea to manslaughter (you having originally been charged with murder), the prosecution accepts that you did not intend to kill your victim or cause him really serious bodily injury. Instead, the prosecution case is that a reasonable person doing what you did would have realised that it exposed your victim to an appreciable risk of serious injury.

35 Any loss of life is serious. The life lost can never be restored. In assessing the objective gravity of your crime, however, one cannot ignore the deceased's action in attacking you from behind, provoking your extreme response. Of course, what the deceased did cannot provide any justification for your actions, which cannot be condoned. You should have responded to the deceased's attack upon you from behind in a measured and civilised way, and not succumbed to your anger. That said, I consider that your offence falls a deal short of being in the worst category. Neither can it to be said to fall into the least category of seriousness. Beyond that, it is not a very productive exercise to try and give it any further classification.[4] As I have said, yours was an extraordinary response to the situation that confronted you, unlikely ever to be repeated. I very much doubt that you will reoffend upon your release.

36 I regard you as being a relatively young man at the time of the killing - you were born on 3 August 1993 and are now aged 28 years - and as being capable of reclamation. In reaching this conclusion I have had regard to your previous good character, and what I regard to be excellent prospects of rehabilitation. Your response immediately after the commission of your crime, in which you provided a false version of events and encouraged others to do likewise, does you little credit. I am satisfied, however, that you now have insight into your actions, and are truly remorseful for what you have done. As to that, I see no reason to doubt the sincerity of your letter of apology, read aloud by your counsel to the Court and for the benefit of your victim's family.

37 Although I do not ignore it entirely, I regard the need for specific deterrence to be of minimal importance in your case. In my opinion, as I have said, it is highly unlikely that you will ever re-offend. I would have held that opinion even without the benefit of Ms Cidoni's testing, but her opinion about your risk of recidivism confirms my own. For much the same reason, I regard the need for the community to be protected from you as of little or no importance.

38 Apart from considerations of your rehabilitation, specific deterrence and community protection, the sentence I impose must justly punish you and mark the Court's denunciation of your conduct. General deterrence must also play a part. Human life is precious and must be protected. Those who are minded to risk or bring about its extinction unlawfully through dangerous conduct such as yours must know that stern punishment awaits them if death results.

39 I received victim impact statements from your victim's father, Harjinder Singh, mother, Balwinder Kaur, and brother, Dalwinder Singh, the admissible and accurate parts of which I have taken into account. They spoke eloquently of the profound sadness and sense of loss that your crime has caused them. I suspect that no sentence imposed by the Court will alleviate their suffering, although I hope that they are able to derive some small measure of comfort from your apology to them.

40 Balancing, as best I am able, all relevant factors, I sentence you for the crime of manslaughter to eight years and six months' imprisonment, upon which I will fix a non-parole period of five years and six months.

41 With respect to the non-parole period, I observe that, as things presently stand, the likelihood is that, should you be granted parole, you will go into immigration detention until completion of your sentence. Of course, I am unable to predict with any certainty whether that kind of arrangement will still subsist in a few years hence. I should not, however, refuse you the possible amelioration of sentence, and incentive for reform, offered by the parole system, simply because the current system would see you complete any period of parole in immigration detention.

42 Section 6AAA of the Sentencing Act 1991 requires me, if I impose a less severe sentence than I would otherwise have imposed because of your guilty plea, to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Given that any sentence I pass must represent my instinctive synthesis of all relevant factors, and given that I cannot look at mitigating features in isolation, s 6AAA requires me to indulge in a somewhat artificial (although legislatively mandated) exercise in order to apply it. Doing the best I can, I state that, but for your pleas of guilty, I would have imposed a sentence of 12 years' imprisonment, with a non-parole period of 10 years.

43 Pursuant to s 18(1) of the Sentencing Act 1991 it is declared that the period of 871 days not including this day be reckoned as a period of imprisonment already served under this sentence.

44 I will also make the disposal order sought by the prosecution.

I certify that this and the 10 preceding pages are a true copy of the reasons for Sentence of Justice Priest of the Supreme Court of Victoria delivered on 24 January 2022.

[1] For the purposes of the Sentencing Act 1991, manslaughter is also a category 2 offence. Section 5(2H) thus provides that the prisoner must be sentenced to a term of imprisonment unless one of the exceptions in the subsection is engaged.

[2] Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344, 356-7 [39] (Priest, Kaye and T Forrest JJA).

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (proposition 6) (Maxwell P, Buchanan and Vincent JJA).

[4] See DPP v Ristevski [2019] VSCA 287, [63]-[68].