R v Lechmana [2010] NSWSC 849 (9 July 2010)

Last Updated: 4 August 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Lechmana [2010] NSWSC 849
This decision has been amended. Please see the end of the judgment for a list of the amendments.

JURISDICTION:


FILE NUMBER(S):
2008/19511

HEARING DATE(S):
30th November ; 1,2,3,4, 7, 8, 9, 10, 14, 15 December 2009; 12th February, 9th April and 11th June 2010

JUDGMENT DATE:
9 July 2010

PARTIES:
Regina - Crown
Nanthagopal Lechmana - Offender

JUDGMENT OF:
Latham J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
M Cunneen SC - Regina
G. Scragg - Offender


SOLICITORS:
S Kavanagh - Solicitor for Public Prosectutions
Jeffreys & Associates - Offender



CATCHWORDS:
CRIMINAL LAW - sentence - relevant factors - nature and circumstances of offender - depressive illness - nature and circumstances of offence - whether intention to kill

LEGISLATION CITED:
Crime (Sentencing Procedure) Act 1999 (NSW)

CATEGORY:
Sentence

CASES CITED:


TEXTS CITED:


DECISION:
Convicted of the murder of Pharzana Nathagopal. Sentenced to a non parole period of 17 years and 3 months to date from 25 February 2008, expiring 24 May 2025, with a balance of term of 5 years and 9 months, expiring 24 February 2031. Eligible for release on 25 May 2025



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

LATHAM J

9 JULY 2010

2008/19511 R v NANTHAGOPAL LECHMANA

SENTENCE

1 HER HONOUR : The offender was found guilty after trial of the murder of his wife, Pharzana, on 25 February 2008. It was never in dispute that he had caused her death by strangulation. The only partial defence at trial was that of substantial impairment, which the jury rejected, in the sense that the offender’s depression was not considered so substantial that it warranted the reduction of the verdict from murder to manslaughter.

2 The verdict was, in my opinion, completely understandable, given the nature of the relationship between the offender and his wife, the deterioration of that relationship in the months leading up to her death, including a previous assault upon her by the offender, the couple’s efforts towards salvaging the marriage and the victim’s final decision to separate from the offender, which the offender could not accept. The offender’s violence towards his wife on the night she died was not the act of a man so deep in the grip of a depression that he was unable to control himself. It was the act of a man who could see that his wife no longer loved him, that she was beyond his authority as her husband, that she had determined to separate from him, taking their child with her, and there was nothing he could do to prevent it.

3 I am satisfied beyond reasonable doubt that the offender assaulted his wife on the night of 25 February 2008 with the intention of killing her. The reasons for that finding are set out below. I am not persuaded that the offence was premeditated. The circumstances surrounding the commission of the offence suggest that the offender’s frustration and anger, arising out of the prospect of losing his wife and child and his sense of alienation from his wife’s family and community, found spontaneous expression in the violence meted out to his wife that culminated in her death.

4 The evidence at trial established that the offender and the victim met in 1997 whilst the offender was on holiday in Australia. They married in 2002, when the offender migrated from Malaysia to Australia. On the day of the offence, the offender and the victim had been married for approximately six years and had a daughter, Reya Nanthagopal, who was born on 21 November 2003 and was therefore five years old.

5 It appears that the relationship was initially happy but deteriorated after the birth of their daughter. It is clear the offender found moving from Malaysia difficult and struggled to adapt to a new life in Australia. He also found it difficult maintaining consistent employment in Australia, although he had no difficulty securing employment. The offender changed jobs a number of times, partly due to a perception on his part that his skills were undervalued and partly due to difficulties he encountered in his interactions with work colleagues. The offender’s mother reported (Exhibit E) that he frequently felt uncomfortable in the workplace because of his perception that he was unpopular with his co-workers. He also struggled with his wife’s sense of independence, particularly her friendships with other men, and became convinced that she was having an affair with her work colleague, Mr Antony Vitiello.

6 On 29 October 2007, some four months before the offence, the victim raised the prospect of a separation, as a result of which the offender placed both hands around her throat and attempted to choke her. On this occasion he stopped, but then approached the victim with a knife and an orange and said words to the following effect: “How would you feel if I put this knife into your stomach. Do you want me to do that?” The victim later told Mr Vitiello about this event, prompting him to advise the victim to report it to police. She did not take that course. In fact, she encouraged the offender to attend counselling with her at Relationships Australia and she expressed her concerns about his mental health to the offender’s mother.

7 Contrary to the offender’s belief, the evidence at trial from Mr Vitiello and the victim’s family members was that the victim had a close and affectionate relationship with Mr Vitiello, but it did not extend to a sexual one. The offender was told as much by Mr Vitiello himself and by a receptionist at the victim’s workplace when the offender delivered flowers to his wife on Valentine’s Day, 14 February 2008. However, he remained unshaken in his belief that his wife was being unfaithful to him.

8 It is difficult to determine whether the offender's mistaken view of his wife's fidelity was a product of his depression or whether it was simply an expression of a possessive nature. The difficulty arises because of the offender's post-conviction accounts of his wife's behaviour towards him in the marriage that have been provided to a number of professionals responsible for the preparation of reports for the purposes of sentence. In particular, the offender told the Probation and Parole officer (report dated 11 May 2010) that :-

his wife had always been ‘obsessive and controlling’ and that these tendencies had increased during her pregnancy. He stated that she had always been ‘hotheaded and temperamental’ and that any changes in their relationship had been as a result of the fact that ‘she changed, not me.’ He claimed that in 2006, the changes in his wife became more pronounced and she was cold and distant with him and it was at this time that he started to suspect that she may have been having an affair with a co-worker. [The offender] further claimed that in January 2008 his wife had admitted to having an affair and that on the night of the offences she had informed him that the affair had progressed to being a physical relationship.

9 The offender told Mr Diment on 7 June 2010 (Exhibit 2) that about two weeks before his wife's death, she had started hitting their child more often and that the victim was "sometimes provocative to me, ... a hot tempered person, ... she had friendships with other men, ... one from a previous relationship and then with a guy at work."

10 In the course of a letter addressed to the Court, dated 21 April 2010, the offender apologises to those who have been "affected by this accident." The offender states that he "made many sacrifices for [his wife], had never cheated on [her] and hoped for the same from her”. The offender states that his wife "drifted from the boundaries of marriage", ridiculed him, and "subjected him to vulgar remarks". These stressors and his mental illness rendered him "a victim to his underlying vulnerabilities". Notwithstanding these statements, the offender claimed that he was "not trying to find excuse for my actions but just explaining my situation." (Exhibit 1)

11 These statements are not just against the weight of the evidence at trial, they completely contradict the observations made by family members and friends of the nature of the relationship and, more importantly, of the victim’s general disposition. In particular, the fact that the victim enlisted the help of the offender’s mother in late 2007 to attempt to persuade the offender to resume his medication at the prescribed dose, is completely at odds with a wife who no longer cared for her husband or was not interested in his welfare.

12 These false assertions on the offender's part cannot be regarded as a product of his mental illness, in view of the fact that, according to a report of Dr Nielssen’s dated 26 February 2010, the offender was not “especially depressed [and] was receiving adequate treatment for depression.” It appears the offender has improved markedly under a more structured treatment regime since he was taken into custody on 25 February 2008. There was an initial cessation of medication because the offender was hoarding tablets in preparation for an alleged suicide attempt, but his compliance since the resumption of medication has allowed him to undertake occupational and educational courses in the prison system to good effect.

13 In my view, the offender’s conscious and deliberate misrepresentation of his marriage since his conviction demonstrates a willingness to go to considerable lengths to avoid responsibility for his offence. It does not augur well for his prospects of rehabilitation. More importantly, it tends to undermine the proposition that his depression was at the root of his violent outburst towards his wife. If that were so, one would expect an improvement in his mental health to lead to an acceptance on his part that his view of the marriage and of his wife’s behaviour was the product of a distortion in his thinking, brought about by his illness. Yet, that is far from the case.

14 The offender’s conduct immediately after the commission of the offence does not alter my assessment in this regard. The fact that the offender drove his car to Vaucluse, where he consumed a large quantity of whisky and sleeping tablets, and made a telephone call to his mother, expressing his intention to take his own life, is equally consistent with a realisation that he was facing arrest and imprisonment, and bringing dishonour upon members of his own family. The offender was sufficiently composed to telephone the victim’s mother, immediately after his wife’s death, to inform her that Pharzana was dead and that they should collect Reya who was alone at the unit.

15 For these reasons, I incline to the view that the offender’s depression had some, albeit limited, bearing on the commission of the offence, in that it exacerbated the traits of a pre-existing rigid and possessive personality. It cannot be doubted that the offender suffered from depression and that there was a history of depressive illness in his family, but in many respects the offender was the author of his own misfortune, in that he was reluctant to obtain treatment, did not follow up on appointments and did not consistently take prescribed medication. There is an absence of reliable evidence supporting a diagnosis of Attention Deficit Hyperactivity Disorder. The offender’s depression was not so serious or pervasive that it diminishes his moral culpability for murder to a significant extent.

16 The duration and severity of the assault upon the victim was the subject of considerable evidence at trial and in submissions on sentence. Photographs of the bedroom, where the victim was discovered by her parents, depicted various clumps of black hair and blood stains on the floor. The cause of death was compression of the neck due to manual strangulation (including a fracture to both of the greater horns of the voicebox). There was also evidence of bruising to the right side of the jaw, minor injuries over the left angle of the jaw region, blunt trauma of the head with bruising externally and under the scalp, a fracture of the nasal bone and bruising to the back and limbs.

17 The evidence Dr Langlois (who conducted the post-mortem examination) was that the fracture of the superior horns of the thyroid cartilage indicated a substantial or significant compression of the neck at about 5 kg of pressure, described as a moderate degree of force. Such pressure would stop the blood circulating to the brain, rendering the victim unconscious after the lapse of between 15 and 30 seconds. After approximately four minutes, the victim would have died. Dr Langlois concluded that the injuries he observed to the victim, together with photographs of the scene, indicated the existence of a struggle, including the infliction of blows. Further, the injuries that were observed to the left and right side of the neck, in the form of fingernail abrasions, suggested that the victim had attempted to relieve the pressure upon her neck by pulling at the offender’s hands before lapsing into unconsciousness. The injuries around the mouth, jaw and throat were also consistent with a struggle.

18 Mr Scragg submitted on behalf of the offender that these injuries were consistent with an impulsive attack of a short duration by the offender. In the absence of any evidence from the offender, who now claims not to have any recollection of the assault, the Court is left to draw inferences from the nature of the victim’s injuries, the physical evidence represented by the photographs, and the evidence of Ms Satala, a neighbour, who heard three or four loud bangs and a murmuring noise at about the time of the assault. The weight and height of the victim (50 kgs and 159 cms) must also be factored into that exercise.

19 I have concluded that the offender commenced his assault upon the victim in the bedroom by striking her to the face, causing the fracture to the nose and bleeding, thus resulting in the dispersion of blood drops around the room. Either before, during or after striking her, he pulled her by the hair to prevent her escape. After striking her, the offender applied consistent pressure to the victim’s neck, whilst she fought to remove his hands. The position of the victim, clothed, on top of the bed when her parents arrived is consistent with strangulation occurring after the offender had pinned her there. I reject the proposition, advanced during Mr Scragg’s address, that the offender and the victim were engaged in sexual activity, that they argued and that the argument and/or the compression of the victim’s neck resulted in the victim somehow falling to the floor, thus sustaining the injuries to the nose and the other abrasions noted by Dr Langlois. That scenario does not take account of the number of loud bangs heard by the neighbour, nor is it consistent with the tufts of the victim’s hair lying about the room.

20 However long the offender maintained pressure on the victim’s neck, it was obvious to him that she was in mortal danger if he did not loosen his grip, yet he persisted. He understood the consequences of his conduct, because he had previously attempted to choke her and he had, in effect, threatened to kill her. The victim was of very slight build. All of these factors support the conclusion that the offender assaulted the victim on 25 February 2008 with the intention of killing her.

21 The Crown submitted that the offence was committed in the presence of a child pursuant to section 21A(2)(ea) of the Crime (Sentencing Procedure) Act 1999 (NSW) but there was no evidence to suggest that Reya was in the room at the time the offender committed the offence or that she was aware of what had taken place. Accordingly, I reject that submission.

22 For all of the above reasons, I assess the objective gravity of the offence as falling marginally below the mid range. It follows that the standard non parole period does not apply but it remains relevant to the sentence to be imposed. In any event, I would decline to apply it in circumstances where the offender is of prior good character and where the offence was committed in the context of his depressive illness.

23 I turn to the offender’s subjective circumstances.

24 The offender was born in Malaysia and lived there until he was 31 years old, when he married the victim and migrated to Australia. The offender was raised by his biological parents until he was approximately four years old when his parents separated. His mother subsequently entered a different relationship which was polygamous in nature and the offender was then raised in a blended family unit of which he was the second eldest child.

25 It was apparently a difficult environment with tension between his mother and his stepfather’s first wife. His stepfather was an alcoholic who subjected him to daily physical violence until he was 16 years old.

26 The offender’s stepfather died when he was 20 years old, but the offender is close to his mother, who has relocated to Australia to support him through these proceedings, and maintains contact with his father. The offender is also close to his half siblings.

27 The offender completed his schooling at the age of 18 years, obtaining the equivalent of the Higher School Certificate. He then went to the Federal Institute of Technology in Malaysia where he attained a Diploma in Electrical Engineering in 1993. In 2000 he was awarded a Bachelor of Science Degree for Electronic and Electrical Engineering from Robert Gordon University of Scotland in Malaysia. The offender has completed further study and qualifications since moving to Australia and whilst in custody.

28 A large number of references were tendered which provide evidence of the offender’s background, personality and work history. Many of the references speak of the offence being completely out of character.

29 These subjective factors suggest that the offender’s prospects of rehabilitation are sound. The complete absence of remorse, however, is a matter of some concern. I have already noted the contents of the Pre-Sentence report, the tenor of which is reinforced by the offender’s letter to the Court.

30 I decline to find special circumstances, notwithstanding that this is the offender’s first time in prison and that he requires treatment for his depression. The treatment currently being provided is, by all accounts, more than adequate and the offender has responded well to date. Any further consideration of his depressive illness for the purposes of determining the length of his supervision in the community would represent double counting of this factor.

31 Ultimately, the Court cannot lose sight of the fact that the life of a loving mother, daughter, sister, and friend to many has been snatched away. The victim’s family members spoke of the victim’s generous and gentle nature, and of their intense grief. A very young child has been deprived of her mother at the hands of her father. The long term effects upon her are incalculable. These matters do not of course justify any increase upon the sentence that is otherwise warranted according to law. However, they serve as a reminder of the value of a human life and of the loss to the community at large.

32 Taking all of these matters into account, I propose sentencing the offender as follows:-

Nanthagopal Lechmana, you are convicted of the murder of Pharzana Nathagopal. You are sentenced to a non parole period of 17 years and 3 months to date from 25 February 2008, expiring 24 May 2025, with a balance of term of 5 years and 9 months, expiring 24 February 2031. You are eligible for release on 25 May 2025.

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AMENDMENTS:


03/08/2010 - Amendment to coversheet only - Paragraph(s) Nil - coversheet only altered


LAST UPDATED:
3 August 2010