DPP v Dookheea & Anor [2014] VSC 611 (4 December 2014)

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

KRITSINGH DOOKHEEA KAMNA RAMJUTTON

JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	15-16, 19-23 and 26-27 May 2014 and 11 August 2014
DATE OF SENTENCE:	4 December 2014
CASE MAY BE CITED AS:	DPP v Dookheea & Anor
MEDIUM NEUTRAL CITATION:	[2014] VSC 611

CRIMINAL LAW – Sentence – Mauritanian nationals – Husband and co-accused spouse – Murder by manual strangulation following violent assault – Husband convicted of Murder post-trial – Co-accused Ramjutton plead guilty pre-trial to Manslaughter – Prior good character – Good prospects of rehabilitation – Low risk of re-offending – Imprisonment onerous for both offenders.

MURDER – Degree of planning – Plan irrational – Aim to intimidate, not necessarily kill, victim - Plan borne out of desperation at parlous financial circumstances – Lies told post-offending not aggravating feature – Lies relevant to remorse – Guilty plea to manslaughter.

MANSLAUGHTER – Co-accused aided and abetted unlawful and dangerous act – Guilty plea shortly prior to trial in light of strong Crown case given little weight.

For the Crown	Ms M Williams QC	Office of Public Prosecutions

For Mr Dookheea	Mr M Dempsey	Victoria Legal Aid

For Ms Ramjutton	Mr S Bayles with Mr M McGrath	Matthew White & Associates

1 Kritsingh Dookheea and Kamna Ramjutton. You are a married couple who moved from Mauritius to Australia together in 2007 in order for Ms Ramjutton to study. Each of you has been found guilty of a serious crime arising from the death of Mr Faisal Zazai at your home in May 2013.

2 On the evening of Thursday 9 May 2013, at approximately 10.30pm, you both assaulted, and Mr Dookheea murdered, Mr Zazai at your home at 19 Felicity Drive, Tarneit. Mr Zazai owned Pizza store businesses in which you worked or had previously worked. He came to your home to collect the takings from one of his businesses that was managed by Ms Ramjutton. However, most of the takings were no longer available to be collected, as you had gambled them away at Crown Casino earlier that day.

3 Mr Zazai’s murder was preceded by a violent physical altercation which began in the kitchen of the house and finished with a struggle on its front lawn. Mr Zazai was attempting to flee. You, Mr Dookheea, placed your hands around Mr Zazai’s neck and squeezed until he stopped resisting. You both then dragged Mr Zazai’s body back inside the house and deposited it unceremoniously in the spare room, just before the police arrived.

4 When questioned by police, you each gave more than one account of what had happened. Initially, both of you said that Mr Zazai had come to the house believing Ms Ramjutton to be there alone and had attempted to sexually assault her. Ms Ramjutton had called for help and Mr Dookheea had intervened to assist her. You said that a fight had ensued, that Mr Zazai had suddenly gone limp on the front lawn and that you had taken him back into the house to prevent him from escaping.

5 However, in subsequent police interviews, you admitted that this was untrue. You, Mr Dookheea, admitted that you had some kind of plan to assault and rob Mr Zazai. You told police that you went to K-mart to buy duct tape in case you had to tie him up. You thought that if worse came to worst, you would hit Mr Zazai on the head. You contemplated that if he died, you would have to get rid of his corpse.

6 You also complained about your financial circumstances, which you blamed on a failed franchise arrangement with the Zazai family. You said that when you heard Mr Zazai was coming to Felicity Drive, you decided to teach him a lesson. You said that you wanted to stand up to Mr Zazai for once.

7 You, Ms Ramjutton, told the police that you did not want Mr Zazai to come to the house, but he insisted on coming. You and Mr Dookheea then started thinking about the fact that Mr Zazai was coming and you bought the duct tape in case you needed to tie his hands. You said that you were not thinking of murdering him, just scaring him off. When asked what you were going to do, you said that Mr Dookheea thought Mr Zazai had money in his car and you could take that money and put him back in his car. When asked why on earth they would do something like that, you responded simply: ‘Because we’re really in a mess ... Like [our] financial situation was a mess.’

8 The background to the events on the night of 9 May 2013 is complex. You both had a long association with Mr Zazai as employees of the ‘Pizza Fellas’ chain. Mr Dookheea, having arrived in Australia from Mauritius in November 2006, first found employment with Pizza Fellas in July 2007. Ms Ramjutton took up a position as a kitchen hand shortly after that. In July 2012, Mr Dookheea acquired a Pizza Fellas franchise and began to run a pizza shop on his own account, but within six months that business had failed, leaving you both seriously in debt.

9 Mr Dookheea did not work again after the demise of the franchise. Your financial situation worsened and you, Mr Dookheea, took to gambling regularly at Crown Casino in a vain attempt to win money to pay off the debts.

10 By May 2013, you were unable to pay the rent on your house, you had significant credit card debts and you owed a colleague $7,000. The world was closing in on you. You faced eviction from your home.

11 There must have been some anxious discussion between the two of you about what would happen when Mr Zazai came to the house to collect the takings that you had gambled away. It is unclear exactly what you decided to do. What is clear is that you, Mr Dookheea, drove to the Werribee Plaza and purchased duct tape. You then drove back to Tarneit and parked the car around the corner, apparently in order to advance the deception that you were not home when Mr Zazai called to pick up the business takings.

12 The events leading to Mr Zazai’s death were, therefore, to some extent, planned by you. There was an element of planning as to how you would deal with Mr Zazai when he came to the house, and when that plan was put into place, it resulted in the death of Mr Zazai. The plan conceived by you involved extracting money from Mr Zazai or persuading him to expunge the debt owing to him. To that extent, there was a plan, and it was a plan that involved money.

13 Counsel for Mr Dookheea argued eloquently during the course of the trial and again at the plea hearing that whatever plan existed, it was not a very good plan and it was certainly not a rational plan. The offending occurred in the context of real grievances and stress about your parlous financial position and, while your conduct had features of planning, it was not necessarily planning for the death of Mr Zazai. He argued that, seen in this light, your offending was a function of human frailty, reflecting your desperation and lack of wherewithal to get yourselves out of the position that you found yourselves in. There was no coherent motivation for the offending conduct. Mr Dookheea told the police: ‘It’s a mess’, and it was, indeed, a mess.

14 I accept this submission. This was not a calculated killing driven purely by greed. Although your dire financial position prompted the offending, I do not believe that you were simply intent on robbing or standing over Mr Zazai to resolve your financial difficulties. If that were your motive, the way in which you went about it is utterly perplexing, as it was doomed to fail. In my view, your offending was the product of desperate and confused thinking by persons behaving irrationally and out of character.

15 The Crown submitted that the lies told by you after the crime are an aggravating feature of the crime, as the lies blackened the character of the victim and sought to blame him for his unfortunate death. I have not been able to find any authority for the proposition that lies told to the police after the commission of a crime constitute an aggravating feature of the crime. In my view, the lies that you both told form part of the general narrative of events on the night in question. They reveal your attitude to your offending, at least at that time, and are relevant to the question of remorse.

16 The crime of murder is extremely serious, as is the crime of aiding and abetting an unlawful and dangerous act that results in the death of a person. The court has a duty to uphold the sanctity of human life. There must never be any doubt about the commitment of the community, and the court through which it speaks, to defend the importance of human life with the imposition of substantial penalties.[1]

17 By your crimes, you have caused the death of a young man who had much to live for and was a much loved and valued member of a large and close-knit family. At the time of his death Mr Zazai was only 31 years of age. He had come to Australia with his family as a child to escape danger and lawlessness in Afghanistan. He prospered in Melbourne. He completed his schooling, studied to become a pilot and helped to build what was by all accounts a successful business that supported many family members. He was about to become engaged. He has been deprived of the opportunity to make his life and to experience the joy and satisfaction of marrying and raising a family.

18 There are other victims of your crime. The victim impact statements of Mr Zazai’s mother and father, Fazila and Hazim, his sister, Nazira, and his brothers, Khalid, Hamed and Mirwais, were read and tendered on the plea. The loss of Mr Zazai has caused great pain and anguish to his loved ones. Many lives have been irreparably damaged by your conduct.

20 You have been convicted of the most serious offence known to our legal system, namely, the murder of another human being. The maximum sentence for that crime is life imprisonment.

21 You are 36 years old, soon to turn 37. You were born in the Republic of Mauritius into a modest but loving family, the youngest of three children. Your father worked as a civil servant and your mother a full-time mother and carer. You and your family are Hindu, and you actively observe religious practice.

22 Your family valued education and your education was supported and encouraged. You did very well at high school and obtained a place at the University of Mauritius, studying for a Bachelor Science, majoring in physics. You became a secondary school teacher and taught in a number of schools before transferring to your old school, Royal College Port Louis, in 2004. You formally resigned from this position in August 2008 when you decided to move to Australia indefinitely.

23 Your reason for moving to Australia was that you had met your wife, Ms Ramjutton, in 2004, and she left Mauritius in 2006 to study in Perth. You were married in August 2007 and moved together to Melbourne, where Ms Ramjutton was then pursuing further studies.

24 Given your level of education and professional qualifications, your life in Melbourne on a spousal visa was not easy. You were only allowed to work 20 hours per week. You found that employers were only willing to offer you cash-in-hand work, and that work was generally menial. One of the reasons for your taking on the franchise of the Pizza Fellas store was no doubt to improve your circumstances by removing yourself from the black economy, where you were poorly paid and vulnerable to exploitation. You felt that you were getting nowhere and your health was suffering as a result of the long hours that you were required to work.

25 It is clear from your background that, before you committed the offence in this case, you were a person of good character. At 35, you had never offended in any way and you had no history of violence or of resolving issues with violence or threats. The destructive and unlawful behaviour that you engaged in on the night of Mr Zazai’s murder was out of character.

26 You have chosen to work while on remand and have otherwise spent the time in prison very quietly: praying, meditating and reading religious texts. You have attended information technology and maths classes, where you have assisted with teaching. You have also completed behaviour management programs, including in communication skills and conflict management. This is all to your credit.

27 I am satisfied, based on your previous good character and the way in which you have conducted yourself since, that your offending was out of character and that it is most unlikely that you will re-offend upon the completion of your sentence. I take your previous good record and your worthy work history into account in sentencing you, as well as what I consider to be your good prospects of rehabilitation.

28 Although you did not admit to being morally culpable or legally responsible for murder (as opposed to manslaughter), I am also satisfied that you are now remorseful for what occurred. In your police interview, after admitting to strangling Mr Zazai, you volunteered to give his family such other information as they needed in order to fully understand the circumstances of his death. That is also to your credit.

29 However, you were not initially remorseful and chose to lie to police about what had happened on the night.

30 Moreover, I am disinclined to give you much benefit for your plea of guilty to manslaughter. Although I accept the sincerity of your plea and that it shows, to some extent, a willingness to facilitate justice, I give it little weight.

31 Your imprisonment to date has been difficult for you and it will continue to be very difficult. You are very isolated in prison, because you do not fit the profile of a typical offender and because you are a foreigner and have no external support. You are allowed one telephone conversation with Ms Ramjutton per week and you are occasionally able to ‘skype’ your family in Mauritius. I accept that this isolation makes your time in prison particularly difficult to bear.

32 In determining your sentence, it is important that I take into account the principal purposes of sentencing in a case such as this. The sentence must be sufficient to properly express the condemnation by the Court, and the community, of your crime, and to emphasise the value of human life, which is the most important value in our society. In addition, it is necessary that the sentence be of sufficient severity to constitute a deterrent to others. Specific deterrence plays a lesser role for the reasons I have given.

33 You stand convicted of murder. Taking the foregoing considerations into account, I sentence you to 19 years’ imprisonment. I fix a minimum nonparole period of 15 years.

34 Pursuant to s 18(4) of the Sentencing Act 1991, I declare that 574 days be reckoned as served under this sentence, and I shall cause that declaration to be noted in the records of the Court.

35 You have pleaded guilty to the manslaughter of Faisal Zazai on the basis that you aided and abetted an unlawful and dangerous act by Mr Dookheea. The maximum penalty for this offence is 20 years’ imprisonment.

37 A report by the clinical and forensic psychologist Carla Lechner tendered on your plea describes your personal history.

38 You are one of two children, born in a small village Mauritius. Your mother was a nurse and your father a teacher. You completed the equivalent of Year 12. You were very close to your grandmother, who was like a second mother, and you were very shocked when she died of throat cancer when you were 13 or 14 years old. From being a lively child, you became a quiet person and you never really recovered from that loss.

39 You told Ms Lechner that you had an inferiority complex growing up because, at the start of high school, you started putting on weight and thought that you were not good enough. You met your husband, Mr Dookheea, when you were 16 years old and you got married when you were only 19 years old.

40 After leaving school, you came to Australia to study psychology in Perth. You were homesick and returned home a year later. Upon your return, you and Mr Dookheea got married, and you decided to move to Australia together in 2007. You moved to Melbourne and enrolled in a Diploma of Community Welfare. In 2011, you commenced a Diploma of Business, which you did not finish, you say, on account of your work commitments.

41 When Mr Dookheea took on the Pizza Fellas franchise in mid-2012, you found life especially difficult, as it meant that the two of you were working in different shops and not seeing much of one another. In addition, as you do not drive, you were totally reliant on Mr Dookheea to take you to work and to pick you up. You had no friends and little spare time. Your mood declined, and your level of homesickness increased.

42 You reported to Ms Lechner that in 2013, Mr Dookheea had stopped working and was sitting at home when not going to the casino to gamble. You did not approve of this, but felt you could not say anything because you thought it would not make any difference. You told Ms Lechner that had you stood up to Mr Dookheea, you probably would not have ended up where you are.

43 According to Ms Lechner, you acknowledged to her your role in the offences and you made no attempt to shirk responsibility or to minimise the seriousness of your actions. You told Ms Lechner that you are ashamed of what happened that day and that you feel so guilty that you cannot sleep at night. You told her that your actions made no sense to you and that if you could erase that day, you would. You said that you simply followed Mr Dookheea’s lead in the events and you lied to the police in order to protect him. You listened to your husband, rather than to your moral voice.

44 Ms Lechner commented that you appeared to have an overly dependent relationship with your husband. According to Ms Lechner, your behaviour and attitudes are consistent with features of a dependent personality disorder (DSM5). She also reported that you evinced a range of symptoms of major depression (DSM5).

45 Your counsel did not rely upon Verdins principles in the plea. However, he submitted that you fell to be sentenced towards the lower end of the range of sentences for the offence of manslaughter because you did not perform the physical acts causing death and, although you aided and abetted through acts of preparation and participated in an assault, this was done without any intention to kill or cause really serious injury. You were not the driving force behind the unfolding events that led to Mr Zazai’s death and your role can best be described as acquiescence in events initiated by your husband.

46 In my view, these are not matters that greatly reduce your culpability for the crime for which you stand convicted of aiding and abetting the unlawful and dangerous act perpetrated by Mr Dookheea. Your crime is extremely serious having regard to your participation in the violent assault on Mr Zazai, and the fact that you were involved in planning some kind of serious assault on him.

47 It was submitted on your behalf that your plea of guilty had a significant utilitarian benefit and facilitated the course of justice, and that it reflected an acknowledgment and acceptance of responsibility for the commission of the offence and its consequences. It was also submitted that your plea of guilty, when viewed in combination with the sentiments expressed to Ms Lechner, was an expression of remorse.

48 I accept that you now feel remorse for your actions. However, you did not initially present as remorseful. After the events in question, you felt free to lie to the police about Mr Zazai attempting to sexually assault you. In the police interview conducted on 10 July 2013, you were asked how you felt about what had happened. You said that it was unfair. When asked to whom it was unfair, you answered, ‘To me, to my husband’. When asked whether you would still feel responsible for Mr Zazai’s death if neither you nor Mr Dookheea had been charged with murdering him, you said, ‘No’. You said you really didn’t know who would be responsible.

49 While I am reluctant to hold you strictly to account for a description of your feelings given in the stressful context of a police interview, those words clearly betray a lack of remorse for your actions. Furthermore, I note that your plea of guilty to manslaughter was not made until just before the trial and in the setting of a very strong case against you.

50 I take into account that you were previously a person of good character in that you had never been violent before the night in question, you were a hard worker and a trusted employee who apparently shouldered responsibility in the workplace. I also consider it likely that you have learned a very important lesson from these tragic events. You now know that you must speak up and do what is right, rather than allow yourself to be carried along by the actions of others. I therefore find that you have good prospects of rehabilitation and that you are unlikely to re-offend.

51 I also take into account that prison is likely to be harsher for you than for many other people because you are isolated from your husband and from your family in Mauritius. You have few if any remaining friends in Australia and you are unlikely to receive visits or support from anyone during your sentence.

52 Whatever insights you now have into your behaviour, you remain responsible for having done a terrible thing. You assisted in taking the life in brutal fashion of a young man who had much to live for and a significant contribution to make to the community. You have caused untold grief to his family. Punishment, general deterrence and denunciation must play an important role in your sentence. For the reasons I have already given, however, specific deterrence plays a lesser role. Rehabilitation and protection of the community can be achieved without a long period of confinement.

53 You stand convicted of manslaughter. Taking the foregoing considerations into account, I sentence you to a term of imprisonment of eight years and six months. I fix a minimum nonparole period of six years.

54 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that but for your plea of guilty to manslaughter, I would have sentenced you to a term of imprisonment of ten years, with a non-parole period of seven years and six months.

Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that 512 days be reckoned as served under this sentence, and I shall cause that declaration to be noted in the records of the Court.

Supreme Court of Victoria

DPP v Dookheea & Anor [2014] VSC 611 (4 December 2014)