The Queen v Sandhu [2016] VSC 516

2 Mr Sandhu was arrested on the day of the attack, was charged with attempted murder and has remained in custody ever since. He has pleaded guilty to the charge.

3 Objectively, the offence is very grave. It must have been a terrifying ordeal for Ms Kharod. But for several factors in mitigation, however, the most important of which are that Mr Sandhu's behaviour was caused by psychotic delusions that his wife was trying to poison him and that he has pleaded guilty despite having a nigh on unlosable defence of mental impairment, the prison sentence I am about to impose for the offence would be in the order of twice as long.

Background and circumstances giving rise to the offence

4 I turn now to the background and circumstances giving rise to the offence. They were detailed in the prosecution opening, which was read to the Court and which I shall summarize now.

5 Sukhwinder Sandhu was born on 19 August 1977 in India. On 26 October 2008, he married Ramandeep Kharod. It was an arranged marriage and they had not met prior to the ceremony.

6 On 26 April 2009, Mr Sandhu and Ms Kharod emigrated from India to Australia. Initially, they stayed in Werribee. Mr Sandhu obtained employment in a car wash and Ms Kharod studied hairdressing. At about this time, Mr Sandhu became angry that Ms Kharod was not employed and would yell and swear at her. After about a year, Mr Sandhu began to slap her face and pull her hair.

7 Mr Sandhu and Ms Kharod had a child, Evelyn, who was three years old in February 2015. On one occasion during the pregnancy, Mr Sandhu was angry and kicked the stomach of Ms Kharod.

8 During her pregnancy, Ms Kharod studied aged care and, when Evelyn was about two months old, obtained employment in that industry. Mr Sandhu was at that time working as a house painter and they shared the care of their child.

9 In September 2014, Mr Sandhu, Ms Kharod and Evelyn moved to a threebedroom house in Tarneit which they shared with two other families - Scott and Sandeep Duckford and their four-month-old daughter Jeslyn, and Siddarth and Falguni Bhatt and their 14-year-old daughter Priyanshi. In total, there were six adults and three children at the property.

10 The relationship between Mr Sandhu and Ms Kharod remained volatile. Mr Sandhu would become upset if Ms Kharod spent small amounts of money. On one occasion, he slapped her face a number of times after she had a telephone conversation with friends in India. On another occasion, he punched her arm while she was driving.

11 In about October 2014, Mr Sandhu took Ms Kharod to the Commonwealth Bank in the Werribee Plaza. Mr Sandhu opened a bank account in his sole name and transferred all but $50 from their joint account to that new account. Ms Kharod estimates that the balance transferred was about $100,000. (There was some doubt about this on the plea. Ms Sleeth, who appeared for Mr Sandhu, indicated that her instructions were that the amount was closer to 100,000 rupees, or about $2,500, as I understood it.) On that same day, Mr Sandhu slapped Ms Kharod to the side of her face as she was holding Evelyn.

12 On 3 November 2014, Mr Sandhu, Ms Kharod and Evelyn attended Dr Beata Rawdanowicz at the Westgate Medical Centre in Hoppers Crossing. Mr Sandhu told the doctor that he did not trust Ms Kharod as she had a lover; and that he wanted a divorce because he could not trust her. He complained of difficulty in their sexual relationship and wanted to check if their daughter was his. They were referred for family counselling.

13 Later in November 2014, Mr Sandhu went to India alone without telling Ms Kharod of his travel plans. He returned on 5 December 2014. During this time, Mr Sandhu's family in India told Ms Kharod that he was not there. This was typical of the relationship between Ms Kharod and her inlaws. She came from a poor family without a dowry, and some family members encouraged Mr Sandhu to leave her. Her motherinlaw came to Australia when she was pregnant and was upset that Ms Kharod had a daughter instead of a son. She later said that both Ms Kharod and Evelyn were doing nothing but sitting at home and eating.

14 While her husband was away, Ms Kharod took steps to have Mr Sandhu's temporary residence visa cancelled. She reversed those steps when Mr Sandhu apologised to both her and her family and promised not to beat her.

15 Between 13 and 29 January 2015, Ms Kharod took Evelyn to India to meet her own family. During this time, Mr Sandhu spoke nicely to her.

16 Upon her return, she obtained employment as a hairdresser in Brisbane, and the family planned to relocate to Queensland. Mr Sandhu told Ms Kharod that he was going to take the car (in which they were going to drive to Brisbane) to the mechanic. He then called Ms Kharod and told her that she was a "bullshit lady" and was giving him tablets that made him dizzy. Ms Kharod says that he was angry with her and not speaking to Evelyn.

17 Priyanshi Bhatt observed that, while Ms Kharod was in India, Mr Sandhu did not leave his bedroom. Sandeep Duckford noticed that Mr Sandhu "acted funny" towards Ms Kharod from 1 February 2015. Falguni Bhatt observed that Mr Sandhu had been causing mental stress to everyone and saying that he was having mental tension.

18 On 31 January 2015, Mr Sandhu told Ms Kharod that he was going to Hungry Jack's. She asked to go with him, but he refused. He stayed away for a couple of days. Falguni Bhatt said that all of the occupants of the Tarneit house went looking for Mr Sandhu until about 1:00 a.m. on 1 February.

19 Later that day, Mr Sandhu attended the Westgate Medical Centre and saw Dr Sunil Bhojwani. He complained of feeling stressed and depressed. He did not complain of experiencing hallucinations or delusional ideas. He was prescribed antidepressant medication. A blister pack of this medication, with one tablet missing, was found in the possession of Mr Sandhu after his arrest.

20 On 2 February 2015, Mr Sandhu returned to the Tarneit house at about 10:30 p.m. He argued with Ms Kharod about his passport. Police attended at the request of Mr Sandhu and he again left the property without saying where he was going.

21 On 4 February 2015, Ms Kharod telephoned Mr Sandhu and arranged for him to come to the Tarneit house to talk. He arrived during dinner. He refused to eat. He did take a tablet. Other residents of the house variously described him as calm, looking like he was taking drugs, with strange looking eyes, not acting funny or talking normally, picking at his fingers and not speaking, and acting strange.

22 After dinner, Mr Sandhu and Ms Kharod spoke about their relationship. Ms Kharod wanted to write down the things about which they agreed. She went to her bedroom to get some paper from a shelf in the wardrobe. Mr Sandhu followed her and closed the door quietly behind them. He then snuck up behind her and grabbed and pulled her ponytail which caused her head to go backwards. He then stabbed her to the left side of the neck several times. Ms Kharod saw blood and screamed. She put her hand to her neck. Mr Sandhu continued to stab her in the neck and hand.

23 The screams were heard by other residents of the Tarneit house. Scott Duckford ran into the bedroom and saw Mr Sandhu with both his hands around his wife's neck. Sandeep Duckford tried to pull Mr Sandhu's arm away and take the knife. Together with Siddarth Bhatt, she got hold of the knife and threw it away. Siddarth Bhatt described Mr Sandhu as looking angry. Sandeep Duckford and Siddarth Bhatt, each holding an arm of Mr Sandhu, took him towards the kitchen. Mr Sandhu said, "She makes me mental, I'm mental." He was trying to pull away to look at Ms Kharod. Siddarth and Falguni Bhatt kept hold of Mr Sandhu so that he could not leave. He attempted to rush for the front door. Scott Duckford brought Ms Kharod into the living room. Lynette Duckford (the mother of Scott), who was visiting the house, put pressure on the wounds with a towel. Scott Duckford rang for an ambulance.

24 Ms Kharod was transported to the Emergency Department of the Royal Melbourne Hospital, and then kept as an inpatient. She had ten stab wounds to the left side of her neck, a laceration to the left parotid and a laceration to the external jugular vein. She also had a laceration to the second web space of her left hand.

25 Mr Sandhu was arrested at the house by Detective Senior Constable Oakley. After being cautioned and given his rights, he was asked why he had done this to his wife. He answered, "Yes, I, I, I tried to kill her." Detective Oakley requested that Dr Angela Sungaila examine Mr Sandhu to see if he was fit to participate in a police interview at the Werribee Police Station. At about 2:00 a.m., Dr Sungaila determined that he was not fit for interview.

26 The bedroom of the Tarneit house had bloodstaining in front of the open wardrobe door. A wooden-handled knife with a bent and bloodstained blade was located beneath an item of white clothing on the floor of the open wardrobe.

27 I turn now to the nature and gravity of the offence and its impact upon Ms Kharod.[1]

28 Attempted murder is, by definition, a very serious offence. It involves behaviour that comes sufficiently close to killing the victim to be classified as an attempt, and that is accompanied by an intention to kill.[2] A measure of its seriousness as viewed by the legislature is that it carries a maximum penalty of 25 years' imprisonment, the second-highest maximum penalty available under Victorian law.[3]

29 As I indicated earlier, this particular instance of the offence is, objectively speaking, very grave. Ms Kharod was attacked, initially from behind, in the safety of her own bedroom by her husband. She was viciously and repeatedly stabbed in the neck, as many as ten times. Her jugular vein was lacerated. She could well have died.

30 Ms Kharod spent five days in hospital initially and has returned for further surgery. In her victim impact statement, Ms Kharod explains that she still suffers stiffness and numbness in her neck and restricted movement in her hand. She has been unable to work as a hairdresser. Her scars are embarrassing. She suffers nightmares and is frightened to go out alone. She also fears for the consequential impact of her debilitation upon her daughter.

Mr Sandhu's culpability and degree of responsibility for the offence

31 I turn now to Mr Sandhu's culpability and degree of responsibility for the offence.[4]

32 As part of the prosecution opening, Ms Taylor QC, who appeared for the Director, also summarized the opinions in the reports of psychiatrists Dr Lester Walton and Dr Nicholas Owens, who, at the instance of the defence and the Director respectively, examined Mr Sandhu after the incident.

33 Dr Walton is confident that Mr Sandhu suffers from paranoid schizophrenia. He is of the view that Mr Sandhu committed the acts of stabbing while in the grips of delusional thoughts (that his wife was trying to kill him by poisoning) and auditory hallucinations (commanding him to engage in the aggression) as a consequence of his schizophrenia. In his view, Mr Sandhu would not have been able to reason with a moderate degree of sense and composure as to the wrongfulness of his actions. Thus, Dr Walton's opinion directly supports the defence of mental impairment.[5]

34 Dr Owens observed that Mr Sandhu gives conflicting accounts of his mental state in the weeks preceding 4 February 2015, particularly as to the reported auditory hallucinations and his beliefs about his wife's faithfulness. He opined that, if Mr Sandhu had been suffering some form of psychotic illness, the impact of anti-psychotic medication (taken while in custody) has been unclear such that he has either made a partial response to medication or his belief that his wife was poisoning him did not arise from psychosis. He also took the view that the presence of a pattern of earlier domestic violence suggests that Mr Sandhu's conduct at the material time was more of an escalation of maladaptive interpersonal behaviour towards his wife rather than an isolated incident arising in some way without a propensity to interpersonal violence. He considered that Mr Sandhu's state of mind at the time of the offence was likely to have been one of intense arousal, anger, paranoid delusions about his wife and possible auditory hallucinations, although he remains unconvinced by the latter. Dr Owens did not give a clear opinion as to the likelihood of Mr Sandhu being able to reason about the wrongfulness of his actions. He acknowledged that it is possible that he was so deluded about his wife poisoning him that he felt unable to act in any other way than by attempting to kill her, but it is also possible, in his view, that he was intensely angry with his wife and his actions were triggered by their meeting that night, in kind with previous incidents suggestive of difficulties inhibiting his aggression to her.

35 Dr Walton also gave viva voce evidence on the plea, whereas Dr Owens did not. Dr Walton considered that the major difference between his view and the view of Dr Owens appeared to be with respect to the presence of auditory hallucinations. But both psychiatrists accept that Mr Sandhu was in a psychotic state at the time of the stabbing, as a result of either schizophrenia (in Dr Walton's view) or a delusional disorder (in Dr Owens' view). And Dr Walton considered that his delusional belief - that his wife was trying to kill him by poisoning - was such that it deprived him of the ability to reason that his conduct was wrong, whereas Dr Owens found himself unable to give a clear opinion on this issue.

36 The parties accepted that the correct approach to the psychiatric evidence on the plea is as follows. While it is impermissible to act on that evidence to the extent that it establishes the defence of mental impairment, for to do so would be inconsistent with the plea of guilty, it is nevertheless permissible to act on that evidence, if accepted, to the extent that it supports the conclusion that Mr Sandhu's behaviour was caused by his disturbed mental state short of the defence of mental impairment. This, in turn, may impact on an assessment of his appreciation of the wrongfulness of his conduct, his ability to make calm and rational choices and his moral culpability, as well as the weight to be accorded to principles such as general deterrence, specific deterrence, denunciation, just punishment and protection of the community.[6]

37 Allowing for the constraints imposed by the plea of guilty, Dr Walton was of the view that Mr Sandhu was "quite seriously ill at the time"; that he had a "very significantly compromised" ability consistently to exercise judgment to make proper decisions and to foresee the consequences of those decisions; and that "he is an inappropriate vehicle for ... general deterrence".

38 I accept the evidence of Dr Walton. The objective evidence of Mr Sandhu's behaviour leading up to and during the attack makes it plain that he was very unwell at that time. In my view, his deluded thoughts - that his wife was trying to kill him by poisoning - did cause him to act as he did; and such thoughts were the product of his schizophrenia. It makes no meaningful difference whether he was also suffering command hallucinations, about which I make no finding. While I must not act on the basis that Mr Sandhu was so unwell that his departure from reality amounted to the defence of mental impairment, I am satisfied that he was so deluded that his moral culpability was reduced, not to nothingness, but to a very low level, just short of the lowest level it could be without amounting to that formal defence.

39 It is for this reason that what is, objectively, a very grave example of a serious crime is much less serious than it might appear at first blush.

40 I turn now to the other factors in mitigation on which Mr Sandhu is entitled to rely.

41 First, there are Mr Sandhu's admissions to police (that he tried to kill his wife) and his plea of guilty to the charge of attempted murder.[7]

42 The plea of guilty is significant in several ways. First, it has avoided what would have been a stressful trial and has spared the witnesses, particularly Ms Kharod, the ordeal of reliving these events and being cross-examined about them.

43 Secondly, it involves an acceptance by Mr Sandhu of legal responsibility for his actions and a willingness to facilitate the course of justice.

44 Thirdly, the plea was entered despite the powerful evidence that satisfies me that the defence of mental impairment was all but certain to be successful. Ms Sleeth, who appeared for Mr Sandhu on the plea, explained that the decision was taken to plead guilty, despite the opinion of Dr Walton, because of uncertainty surrounding her client's custodial position in the event that the defence of mental impairment succeeded. In particular, there was a concern that, if placed on a custodial supervision order, the nominal term of which would be 25 years, Mr Sandhu might not be released into the community on extended leave or, if ultimately placed on a non-custodial supervision order, again, he might not be released into the community.[8] In any event, whatever the reasoning behind the course taken, it is plain that he had a very strong defence of mental impairment, which, in my view, makes the plea of guilty all the more worthy in mitigation.[9]

45 Secondly, I am satisfied that Mr Sandhu has some level of remorse for his offending,[10] albeit I think the fact that he was, and has been, very unwell limits the way in which he feels and expresses remorse. There are five reasons for that conclusion.

46 First, his admissions to police suggest a measure of remorse.

47 Secondly, his plea of guilty, in the face of a strong defence, is also some evidence of remorse.

48 Thirdly, when he first saw Dr Walton in May 2015, about three months after the offence, Mr Sandhu said, "I love my wife; it was very bad what happened," and he expressed great relief that she survived.

49 Fourthly, through counsel on the plea, Mr Sandhu said that he was very sorry for his actions, which apology I accept is genuine.

50 Fifthly, my impression of Mr Sandhu on seeing him in Court is that he is a troubled man who is sorry for what he has done, albeit his capacity to feel remorse is blunted by the fact that he was so unwell at the time of the offence and by the further complication that he remained unwell for a considerable period after his arrest.

Previous good character and lack of prior convictions

51 The third matter in mitigation is that Mr Sandhu has a history of good character and a lack of prior convictions alleged against him.[11] Two references tendered on the plea suggest that Mr Sandhu was a man of good reputation in his community in India.

52 On the other hand, these factors are offset to some extent by the history of violent and abusive behaviour he has shown towards his wife earlier in their marriage. It may be that Mr Sandhu has been suffering the effects of mental illness for some years, and that that illness explains his earlier ill-treatment of his wife, which, if so, would lessen the offsetting effect of such behaviour on previous good character and the absence of prior convictions. However, while I accept that Mr Sandhu has a history of mental illness dating back to his time in India, I am not satisfied that such illness was causative of the earlier instances of domestic violence.

53 The fourth matter in mitigation concerns three aspects of imprisonment that have worked, and will continue to work, particular hardship on Mr Sandhu.[12]

54 First, I am satisfied, by the evidence of Dr Walton, that Mr Sandhu has found, and will continue to find, incarceration more onerous than most other prisoners because of the effects of his schizophrenia.

55 Secondly, the ongoing treatment and rehabilitation of Mr Sandhu, as a sufferer of schizophrenia, is, to quote Dr Walton, "far from ideal in a custodial context". In other words, there is a risk that prison will exacerbate Mr Sandhu's condition, or at least complicate its treatment.

56 Thirdly, I accept that Mr Sandhu's time in custody has been, and will continue to be, particularly lonely and isolative. His English is poor, and it is unlikely that he will come across any Punjabi-speaking prisoners. His only family in this country are his wife and daughter, from whom he is now estranged. He will not have contact with his daughter in the foreseeable future. His only contact with family is via telephone calls with his mother and brother in India.

57 Mr Sandhu is now at the point where his hope for the future is to return to his family farm in India to work and live, at the completion of his non-parole period. On the other hand, given that desire, the fact that he may well be deported upon the completion of his non-parole period or his head sentence[13] cannot be a factor in mitigation.[14]

58 Finally, I am satisfied that Mr Sandhu has very good prospects of rehabilitation.[15] There are several reasons that, in combination, drive me to that conclusion.

59 First, his admissions, plea of guilty and remorse point in that direction.

60 Secondly, despite the evidence of domestic violence in the past, I am satisfied that the absence of prior convictions, at the age of 39, bodes well for Mr Sandhu's future prospects. I think it is unlikely that he will offend in any seriously violent way again.

61 Thirdly, I am satisfied that Mr Sandhu understands the necessity of taking, and will continue to take, anti-psychotic medication for the foreseeable future, and probably for the rest of his life.

62 Finally, it appears that Mr Sandhu has been in work, both in India and Australia, all of his adult life. I accept that he will continue to work upon his release into whichever community he is allowed to return.

63 I turn now to the purposes of sentencing.[16]

64 Given Mr Sandhu's reduced moral culpability on account of the effects of his mental illness at the time of the offence, there is, in my view, necessarily, a corresponding reduction in the need for the sentence to reflect curial denunciation and just punishment.

65 Similarly, general deterrence can be of only minimal weight, as one so ill is not a suitable vehicle to be an example to others.

66 It is also difficult to see how specific deterrence could attract any more than minimal weight, although Mr Sandhu's earlier history of violence (albeit of a much lesser order) against his wife suggests he must understand that any form of violence is impermissible. Mr Sandhu's plea of guilty, remorse, lack of prior convictions and strong prospects of rehabilitation also suggest that specific deterrence should attract less weight than otherwise in any event.

67 On the other hand, there is some need to show caution in protecting the community from one who has demonstrated he can act so violently when unwell. That said, I also accept the evidence that it appears that the anti-psychotic medication that Mr Sandhu is taking (Olanzapine) is likely to control his illness in the future. Further, I also accept that he has some insight into his illness and an understanding of the need to take such medication, probably for the rest of his life.

68 Finally, I accept that rehabilitation is an important sentencing purpose in Mr Sandhu's case. Whichever community to which he returns, whether it be in Victoria, India or elsewhere, will be better served and protected if he does so with his chances of reform maximized. Such chances are more likely to be improved if he is not crushed by an inordinately long prison sentence but rather is returned to the community, in which his mental health can be treated more effectively, at the earliest opportunity consistently with the other purposes of sentencing.

69 I turn now to current sentencing practices for attempted murder.

70 In order to determine such practices, to which I must have regard,[17] I have considered several other sentences imposed by this Court and the Court of Appeal for attempted murder in recent years.[18] I have also had regard to such sentencing statistics that exist for attempted murder, although the most recent ones available are only for the period 2001-02 to 2005-06.[19]

71 While no two cases are ever truly alike, I have not found any case quite like this one. However, what I can say is that, if Mr Sandhu had not been afflicted by serious mental illness at the time of his offence but had just callously tried to kill his wife in a burst of anger, and had he not pleaded guilty, this offence would be sufficiently serious to attract a head sentence in the order of at least 12 to 14 years' imprisonment.

72 But, now, I end where I began. The fact that Mr Sandhu was so mentally disturbed at the time of the offence, and the fact that he pleaded guilty, together with the other mitigating factors, make the appropriate penalty very much less, despite the objective gravity of his behaviour and the terrible harm it has caused.[20]

74 Balancing all factors as best I can, for the attempted murder of Ramandeep Kharod, Mr Sandhu is convicted and sentenced to seven years' imprisonment with a non-parole period of four years.

75 Pursuant to s 18 of the Sentencing Act 1991, I declare that 573 days (including today) be reckoned as served under this sentence.

76 I also declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Sandhu's plea of guilty, I would have imposed a sentence in the order of ten years' imprisonment with a non-parole period of seven years.

77 Ms Taylor also applied for a disposal order and a forensic sample order. Ms Sleeth indicated that her client consented to the making of both orders. In those circumstances, I shall make those orders as well.

[1] See ss 5(2)(c) and (daa)-(db) of the Sentencing Act 1991.

[2] See ss 321M and 321N of the Crimes Act 1958.

[3] See s 321P(1)(a) of the Crimes Act 1958 and s 5(2)(a) of the Sentencing Act 1991.

[4] See ss 5(2)(d) of the Sentencing Act 1991.

[5] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

[6] See, e.g., Lucas v The Queen [2012] VSCA 245 at [20]- [22] (per Redlich JA, Maxwell P agreeing); R v Sebalj [2006] VSCA 106 at [12]- [15] (per Vincent JA) and [18]-[21] (per Maxwell P).

[7] See ss 5(2)(e) and (g) of the Sentencing Act 1991.

[8] See ss 26, 27, 28 and 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

[9] See, e.g., R v De Macedo (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 per Phillips CJ (with whom Beach and Gobo JJ agreed).

[10] See s 5(2)(g) of the Sentencing Act 1991.

[11] See s 5(2)(f) of the Sentencing Act 1991.

[12] See s 5(2)(g) of the Sentencing Act 1991.

[13] Which, in some circumstances, can be a factor in mitigation - as to which, see, e.g., Schneider v The Queen [2016] VSCA 76 at [16]- [26] (per Priest JA, with whom Coghlan and Kyrou JJA agreed), and the authorities to which his Honour referred.

[14] As I understood her, Ms Sleeth conceded that this was so.

[15] See s 5(2)(g) of the Sentencing Act 1991.

[16] See s 5(1) of the Sentencing Act 1991.

[17] See s 5(2)(b) of the Sentencing Act 1991.

[18] One source by which I was particularly assisted was the survey of cases undertaken by Beale J in R v Rapovski [2015] VSC 359 at [38]- [41]. Counsel also referred to Soteriou v The Queen [2013] VSCA 328; DPP v Saltmarsh [2013] VSCA 290; and Ho v The Queen [2012] VSCA 26.

[19] Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends for attempted murder in the higher courts of Victoria, 2001-02 to 2005-06, No 21, January 2007.

[20] An illustration of the powerful mitigating effect on sentence that can be had by evidence of serious psychosis operating on a person's thoughts and actions at the time of offending is to be found in R v Sebalj [2006] VSCA 106, where, on appeal, Maxwell P and Vincent JA imposed a sentence of 12 years' imprisonment, with a non-parole period of nine years, on a count of murder. That murder conviction was sustained following a trial at which the defence of mental impairment was not left only because, the trial judge ruled, Mr Sebalj's psychosis at the time of the killing was drug-induced rather than the product of schizophrenia. Had Mr Sebalj's offence not been precipitated by psychosis, given current sentencing practices, it would be reasonable to have expected a much heavier sentence - perhaps one closer to 20 years' imprisonment.