Singh v R [2012] NSWSC 637

Supreme Court New South Wales

Medium Neutral Citation: Singh v R [2012] NSWSC 637 Hearing dates: 24-25 May 2012 Decision date: 07 June 2012 Before: McClellan CJ at CL Decision: Chamanjot Singh for the offence of manslaughter you are convicted and sentenced to a non-parole period of 6 years commencing on 30 December 2009 and expiring on 29 December 2015, that being your earliest parole eligibility release date, with a balance of term of 2 years commencing on 30 December 2015 2016 and expiring on 29 December 2017. Catchwords: CRIMINAL LAW - sentence - manslaughter - provocation. Cases Cited: Goundar v R [2012] NSWCCA 87; R v Alexander, NSWCCA 24 February 1995 (unreported); R v AN [2005] NSWSC 334; R v Frost [2008] NSWSC 220; R v Gabriel [2010] NSWSC 13; R v Green [1999] NSWCCA 97; R v Hamoui [No 4] [2005] NSWSC 279; R v Hoerler [2004] NSWCCA 184; R v Jones & Ors [2007] NSWSC 1333; R v Johnson [2003] NSWCCA 129; R v KMB [2003] NSWSC 862; R v Lynch [2002] NSWSC 1140; R v Panozzo, NSWCCA, 25 March 1993 (unreported); R v Williams [2004] NSWSC 189; R v Williams [2005] NSWCCA 99; and R v Vella NSWCCA 15 December 1995 (unreported). Category: Sentence Parties: Chamanjot Singh (Offender) Crown Representation: Counsel: C Loukas (Offender) P A Leask (Crown) Solicitors: Legal Aid of New South Wales (Offender) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/331210

Sentence 1The offender, Chamanjot Singh, was charged with the murder of his wife, Manpreet Kaur, on 29 December 2009. He pleaded not guilty to murder but guilty to manslaughter, on the grounds of provocation. The Crown did not accept that plea and the matter proceeded to a trial with a jury. The jury acquitted the offender of murder but convicted him of manslaughter. 2The only issue at trial was whether the Crown could prove beyond reasonable doubt that the offender did not act under provocation. Having regard to the circumstances of the death of the deceased, there can be no doubt that the offender killed his wife when he had lost self-control. The only significant issue was whether or not an ordinary person, in the position of the offender, would have formed an intention to kill in the circumstances. The jury was not satisfied that an ordinary person would not respond in the manner alleged. 3The offender gave evidence during his trial. Significant portions of his evidence were not challenged. In many instances, only he and his wife were present. However, his evidence was convincing and I generally accept that the events he relates occurred. 4The offender and the deceased were married in India on 14 September 2008. The offender was 20 years old and the deceased was 27 years old. They had met and formed a relationship while undertaking an English language course. During the course a suggestion was made to them by one of their teachers that they should marry. The marriage would enable one of the couple to enter Australia on a study visa and the other to enter on a dependent spouse visa. The offender and the deceased married shortly after. The decision was made that the deceased would apply to come to Australia on the study visa and the offender would come on the dependent spouse visa to enable him to work to support her financially. 5On 30 January 2009 the deceased moved to Australia and began to study a Diploma in Business Management at Southern Cross University. The offender came to Australia approximately three and a half months later on 12 May 2009. As planned, the offender entered Australia on a spousal visa. 6The offender's relationship with his wife deteriorated from the time of his arrival in Australia. The offender and the deceased began to argue about financial issues only hours he arrived. The offender was accused by his wife of failing to bring the amount of money from India that the deceased had expected him to bring to Australia. On the offender's account, the deceased became upset upon learning that he had only brought $1700 instead of the $2000 that she had requested that he bring. The deceased demanded that the offender call his family in India and arrange for them to send an additional $300 dollars. The offender said that he had obtained the $1700 from his parents and relatives in India who had pooled their life savings in order to enable the offender to travel to Australia. The offender gave evidence that the deceased continued to pressure him to obtain extra money, despite knowing that his family did not have the means to provide him with the funds. 7After his arrival in Sydney the offender obtained employment as a cleaner at Rebel Sport. The couple continued to argue about financial issues. The deceased wished to send money which had been earned by the offender back to her family in India and the applicant felt that they could not afford to send back the amount she requested. The deceased also became upset with the offender when she learned that the offender had spent any part of his income on personal items, rather than saving the funds to send to her family in India. 8The offender gave evidence that the father of the deceased contacted him over the phone after an argument with the deceased. He said that his father-in-law had said "Fuck, who are you to say anything bad to my daughter? We will kick you out from the [country]." When the offender responded by saying that he did not start the fight with the deceased, his father-in-law said "I will kill you if you say anything bad to my daughter. I know some boys in Sydney, I will send to your house and they will teach you a lesson." When the offender again said that he had not said anything to the deceased's his father-in-law said "Listen, this is a warning to you, if you say this again ... it will be your end." 9Pressure was also placed on the relationship by the offender's suspicion that the deceased was cheating on him. The offender's suspicion first arose whilst the couple was still in India. The offender believed that the deceased had lied to him about the identity of a person know as Preet. The offender was aware that the deceased had received phone calls from Preet but she told the offender that Preet was a female friend who lived in India. When the offender questioned the deceased about the identity of Preet on a later occasion she admitted that Preet was a male friend who was residing in Australia. 10Shortly after discovering that Preet was a male friend of the deceased the offender found approximately seven or eight text messages from Preet on the phone of the deceased. The messages indicated that Preet was waiting for the deceased in Australia and wished to commence a relationship with her when she arrived. The offender confronted the deceased. An argument ensued but the couple reconciled after the deceased told the offender that the she would discontinue contact with Preet. 11When the offender arrived in Australia he once again became suspicious that the deceased was being unfaithful. On an occasion when the deceased returned home from class later than expected, the offender questioned her about her whereabouts. The deceased responded to the questioning by threatening the offender that she would kick him out of the house and out of the country if he continued to question her in such a manner. The threat had particular force due to the fact that the offender's immigration status was dependent upon his status as the deceased's husband. 12The offender gave evidence that the couple's sexual relationship deteriorated in response to the matrimonial disharmony. There was also evidence that the tension between the couple resulted in a number of episodes of domestic violence. In August of 2009 the deceased met with her sister, Jaspreet Kaur, in the central business district of Sydney. Jaspreet could see that the deceased had bruising to her left arm and an injury to her face that appeared to be caused by deep scratches. The deceased told her sister that the injuries were caused by the offender who had hit her because he was jealous about phone calls that she had received. 13Sarbjeet Singh, the brother in law of the deceased, gave evidence that two or three months prior to the death of the deceased she had arrived at his house in a distressed state. The deceased had marks on her face and neck. The deceased indicated that the marks were a result of a physical argument with the deceased. 14Manmohan Singh, a former roommate of the offender and the deceased, gave evidence that he had asked the couple to move out following an argument in which the offender had hit the deceased in the back of the head. He recalled seeing marks on her face and a lump on the back of her head. The offender told Singh that the deceased had been lying to him and had bitten him. The offender showed Singh a bite mark to support his story. 15At the time of the killing, the offender resided with the deceased in a divided house at Westmead. The property was owned by Thambiappah Satchithananthan, who resided with his wife in the front section of the house. The rear section of the house had three bedrooms. One was occupied by Sukh Singh, another by Jatinder Singh and his wife Herleena Kaur and the third by the offender and the deceased. The rear section also contained a shared lounge room, kitchen and bathroom. In addition to the divided house, there was also another house located on the front of the block. The house was unoccupied at the time the deceased was killed. 16On 28 December 2009 the offender and the deceased departed for their separate places of employment. The deceased worked at a Subway store in the Sydney CBD. The offender finished work at 11 am and, at the request of the deceased, went to the deceased's workplace to pick her up at 2.15 pm. The offender waited for the deceased outside her work place for two to three hours. During this time the deceased came out of the premises to tell him that she had to continue working. At 5 pm the deceased told the offender to go home without her as she could not leave with him. 17The deceased returned home at approximately 9:30 pm. The offender questioned the deceased about her whereabouts. The deceased said that she had already told him that she was at work. She also said that if the offender continued to question her she would kick him out of the house and out of the country. 18The offender gave evidence that the argument left him extremely upset and concerned about his situation if the deceased followed through with her threats. On the following day, Tuesday 29 December 2009, the offender withdrew $1500 from a joint bank account that he had opened with the deceased. The withdrawal of the funds was motivated by a fear that he would have nowhere to live and no money if the deceased left him. 19The deceased arrived home from work at approximately 9.30 that evening after finishing work at 8 pm. The offender had been home since 5 pm. As soon as the deceased arrived home she confronted the offender about the withdrawal of the funds from the joint bank account. A heated argument ensued. 20Following the argument, the deceased went to speak with Herleena Kaur, another occupant of the house in Herleena's bedroom. The deceased was distressed and crying. She told Herleena that she did not like Beenu (a nickname for the offender), that he always fought with her and that she would be moving in with her sister the following day. 21The deceased rang her sister Jaspreet from Herleena's bedroom and told her that she was coming to live with her the following day. She also told her sister that she no longer wanted to live with the offender, that they had fought the previous day and that he always called his mother and told her about the fighting. 22At 10.02 pm the offender rang Rajan Sadeora, a family friend from India, and told her that the deceased was abusing him. Ms Sadeora was unable to speak with the offender at that time and told him that she would ring back shortly. Approximately 5 minutes later, Ms Sadeora called back and spoke with the offender. He told Ms Sadeora that the deceased was abusing him and his mother. Ms Sadeora asked to speak with the deceased but was told by the offender that the deceased was with her friend in another room and did not wish to talk. Ms Sadeora then told the offender to settle the dispute lovingly, and that every husband and wife have disagreements. 23The offender then went to bed. The deceased came into the room some time afterwards. A short time later, after 10 pm, the deceased was heard screaming in the Punjabi language "Save me, save me" and "I won't do it again". She was also heard to call out "sorry, sorry" and exclaim "ahh". Herleena Kaur and her husband Jatinder Singh went to the door of the bedroom. Jatinder knocked and tried to open the door, but it was locked from the inside. Jatinder called out for the door to be opened. The offender yelled to wait, and said that he would let him in. The owner of the house, Mr Satchinthananthan, came to the door about this time. A short time later, the offender opened the door and stepped forward towards him. He pushed Jatinder back, ran past him and out the front door. 24The deceased was lying on her back. Her throat had been cut. There was a pool of blood on the floor and blood stains on the walls, the television stand and clothes in the room. Underneath the body of the deceased was the portion of a box cutter blade. In a washing basket in the room was a bloodied box cutter. $1450 of the $1500 withdrawn by the offender on that day was also found in the room. 25The only account of events inside the room came from the offender. I accept his evidence. The offender said that he was in bed when the deceased entered the room. She then made a phone call to her sister in Delhi. While she was talking to her sister, her sister's husband, Harish Baluja, took the phone and asked to speak to the offender. The offender told the deceased that he did not want to talk to anyone. The deceased then put the phone on loud speaker. Mr Baluja then began to yell at the offender, saying "Oi sisterfucker, oi motherfucker, why you withdraw money from the account?" The offender responded by saying "This is my money, I deposited into the account". The deceased then shouted into the phone that "He is taking care about his family. He is taking care about his mother" and "he love his mother, he love his father and he is taking more care about his family". 26Mr Baluja then told the offender, "If you want to take care for your mother, have sex with her and have a kid with her and - because it will be good for you". The offender became very upset and said to Mr Baluja "Oi sister fucker, who are you to say wrong thing about my mother". The deceased then slapped the offender and said, "Who are you talking to my family like that?" The offender then said, "He is talking to my mother, like, he abusing to my mother. He's telling me to have sex with her". The deceased then said "Yeah. You and your mother is like that" and started to hit him again. 27The offender then said to the deceased, "Manpreet, you don't love me. I love you. I give you my life but you don't love me." He gave evidence that the deceased then told him that she had never loved him, that she loved only Preet and that she and Preet would make sure that he was kicked out of the country. The offender then became enraged. He gave evidence that held the deceased around the throat while she slapped him. He took hold of a box cutter that was present in the room. He had no recollection of the events that followed. 28In its submissions on sentence, the Crown accepted that the events in the 48 hours leading up to the death of the deceased were, by and large, not in dispute. It was also accepted that the actions of the offender during that period were relevant to his state of mind at the time of the attack upon his wife and that the attack was to be judged against the long history of marital disharmony and domestic violence that characterised their relationship 29It is plain that on the previous day the offender had formed the view that his marriage was likely to come to an end and that he needed to take some steps to protect himself or otherwise he may be without a place to live and, without any money, he would lose his entitlement to remain in Australia. I accept the offender's evidence that the events of the last 48 hours of deceased's life heightened the offender's concerns about his position. Ultimately, being told that his wife had never loved him and was going to leave him, accompanied by the offensive remarks of the deceased's brother-in-law was the trigger for the offender losing his self control. 30The acts by which the offender killed his wife were violent. It could only be described as a ferocious attack. The evidence from the autopsy, which I accept, was that he first strangled her (although that may not have been the cause of her death) and then cut her throat at least eight times with a box cutter. At least two of the cuts were deep and would have led to a fatal loss of blood. 31The crime of manslaughter carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period, which is in part a reflection of the difficulty of sentencing for manslaughter. Those difficulties are significant when the foundation for the verdict is that, although the offender has formed an intention to kill, he or she has done so in response to the provocation of the deceased. 32It has been said previously that there are three significant matters relevant to the objective seriousness of the offence of manslaughter by provocation. Firstly, the degree of provocation offered or alternatively the extent of loss of control is relevant. Secondly, the time between provocation and the loss of self control which, when short, has the tendency of reducing the objective gravity of the offence. Thirdly, the degree of violence or aggression displayed by the offender is relevant and, when excessive, has a tendency of increasing the objective gravity of the offence. 33Although the events which triggered the offender's actions occurred within a short time frame on 29 December, those events were a continuation of the circumstances which occasioned anxiety to the offender the previous day. All of the events of that 48 hour period were imposed upon a background of increasing failure in their relationship over the previous months since the offender had arrived in Australia. The offender ultimately responded by entirely losing his self -control. 34Although I am satisfied that the ultimate acts of provocation were imposed upon a relationship which had been deteriorating over many months, the offender reacted within a relatively short time to the statements made by the deceased and by her brother-in-law, making plain that their relationship was at an end and that the offender's future was, to say the least, bleak. However, when considering the objective seriousness of the offence it is relevant that on the night he killed his wife there was a break in their arguing which may have provided an opportunity for him to reflect on the circumstances. However, as is apparent, he was ultimately overwhelmed by the situation. 35It is apparent that the offender acted with a very great degree of violence toward the deceased making, the offence objectively more serious than it might otherwise have been. He both applied force, strangling her, and used the Stanley knife to cut her throat. 36I am also satisfied that the actions of the deceased were provocative and were sufficient to have occasioned an ordinary person in the offender's position to have lost his self-control. However, there are many other recorded instances of provocation more serious than the present case. The loss of self-control resulted in a brutal killing. The level of violence was of a high order. 37When the three elements are considered, the objective gravity of the offence was very significant. The taking of human life is the most serious crime known to the law. The manner in which the offender killed his wife was brutal and must have occasioned her considerable suffering. 38Dr Olav Nielssen, a psychiatrist, gave evidence. He examined the offender and having regard to the offender's account of the events and his personal circumstances, concluded that at the time of the offence the offender was suffering from a psychiatric condition identified as "adjustment disorder with depressed mood." Dr Nielssen was of the opinion that this was, in part, as a consequence of the offender's belief that his wife was unfaithful to him. The offender had formed this belief well before the events of 29 December. I am satisfied that his concerns and the psychiatric illness which he was suffering from contributed to his losing self-control. 39I am satisfied that the offender was an immature individual who became caught up in a situation which he was unable to effectively handle. He was far from his family and friends in India and had no resources to draw upon for emotional support. When it became apparent that his marriage had failed, he did not have the personal maturity or capacity to remove himself from the situation and avoid the conflict which ultimately took place. 40The offender has no prior criminal history and is entitled to be sentenced on that basis. The offender pleaded guilty to manslaughter at the earliest opportunity and the Crown accepts that he is entitled to the full benefit of that plea. The Crown also accepts that it is relevant, particularly to the issue of general deterrence, that the offender was suffering from a psychiatric condition at the time the offence occurred. The need for general deterrence is thereby diminished. 41The offender is now 24 years old. He was 22 years old at the time of the offence. He comes from poor circumstances in India and will, on release from custody, inevitably be deported back to his original country. The evidence does not enable me to have a view about his prospects of employment or capacity to establish a productive life for himself when he is released. 42Although, as I have indicated, at the time of committing the offence the offender was suffering from a psychiatric illness, Dr Nielssen is now satisfied that his psychiatric well-being has been restored. I am satisfied that he is unlikely to reoffend and has good prospects of rehabilitation. These matters diminish need for personal deterrence. 43During the course of the sentencing hearing a letter which the offender has written expressing his remorse was tendered. I am satisfied that the offender regrets his actions and that his expressions of remorse are genuine. I accept that when he was an immature young person he fell in love and believed that he would spend the rest of his life with the deceased. As events unfolded, his expectation of a continuing and happy relationship was lost and without the necessary personal resources and family support he was vulnerable to the provocation that ultimately caused him to take the life of the deceased. 44Victim impact statements were provided by Jaspreet Kaur and Lakhvinder Baluja, the sisters of the deceased and Baldev Singh, the father of the deceased. Jaspreet Kaur read her statement to the court. I am no doubt that the loss of the deceased has been a great tragedy for her and her sisters and other members of her family. The loss of a family member in circumstances such as the present will always be a source of immense grief to other members of the family. I am satisfied that the deceased was an intelligent, vibrant and diligent person who was an integral part of her family's life. I have considered the victim impact statements in the manner required by the law. 45Sentencing for the crime of manslaughter is made difficult by the many ways in which the crime may be committed. When provocation can be readily identified as the occasion for forming an intention to kill, the task is made even more complex. I have been referred to a number of previous decisions to which I have given careful consideration: Goundar v R [2012] NSWCCA 87; R v Alexander, NSWCCA 24 February 1995 (unreported); R v AN [2005] NSWSC 334; R v Frost [2008] NSWSC 220; R v Gabriel [2010] NSWSC 13; R v Green [1999] NSWCCA 97; R v Hamoui [No 4] [2005] NSWSC 279; R v Hoerler [2004] NSWCCA 184; R v Jones & Ors [2007] NSWSC 1333; R v Johnson [2003] NSWCCA 129; R v KMB [2003] NSWSC 862; R v Lynch [2002] NSWSC 1140; R v Panozzo, NSWCCA, 25 March 1993 (unreported); R v Williams [2004] NSWSC 189; R v Williams [2005] NSWCCA 99; and R v Vella NSWCCA 15 December 1995 (unreported). 46I have also had the benefit of the carefully prepared submissions of counsel, both oral and in writing, which I have found of significant assistance. However, each case is unique and the appropriate sentence will depend upon the circumstances of the particular offence and of the offending. 47In all of the circumstances, I am satisfied that the offender must receive a prison sentence for a significant period. I see no reason for a finding of special circumstances. I shall impose a non-parole period of six years with a balance of term of two years. 48Chamanjot Singh for the offence of manslaughter you are convicted. You are sentenced to a non-parole period of six years commencing on 30 December 2009 and expiring on 29 December 2015, that being your earliest parole eligibility release date, with a balance of term of two years commencing on 30 December 2015 and expiring on 29 December 2017.