R v Tikaram

1. [1]

   HIS HONOUR: Mr Tikaram stands to be sentenced for the manslaughter of his father Ajay Tikaram at Pemulwuy on 23 December 2014. He was originally charged with murder. Subsequent medical opinion demonstrated that Mr Tikaram was a person whose actions at the time of the commission of the act causing death fell within s 23A (1) of the Crimes Act 1900. That sub-section provides as follows:

2. [2]

   The Crown ultimately accepted Mr Tikaram’s plea of guilty to manslaughter having regard to his mental condition in the following particular circumstances of this case.

Background facts

1. [3]

   Mr Tikaram was born in 1978. At the time of the events that give rise to these proceedings, he resided with his parents at their house in Driftway Drive, Pemulwuy, a suburb of Sydney. On the evening of 23 December 2014, Mr Tikaram and his father, who had both been drinking, became involved in an argument. The deceased either attempted or threatened to telephone the police. Mr Tikaram repeatedly struck the deceased rendering him unconscious. He later died in hospital.

2. [4]

   The direct cause of death was blunt force trauma to the head and neck. A large purple contusion was present on the deceased’s forehead and anterior scalp together with several abrasions and lacerations. The deceased’s nose was broken and there were contusions around his eyes. Four parallel linear abrasions were present on his right cheek and a cluster of dot-like and linear abrasions were present on the right side of his neck. The deceased also had a patterned bruise on his right cheek with a curved and slightly scalloped appearance. He had a bruise on his left shoulder associated with patterned abrasions with a ridged appearance and a roughly rectangular bruise on his right shoulder. Neuropathological examination confirmed a large basal subarachnoid haemorrhage consistent with trauma. The deceased had a blood alcohol content of 0.151g/100ml.

3. [5]

   When Mr Tikaram’s mother arrived home from shopping at about 10.45pm she found Mr Tikaram to be agitated. He told her to “call the cops”. She saw her husband on the floor in the kitchen, which was covered in blood. He was unconscious and barely breathing. Mr Tikaram said to her, “I was trying to cook and we got into an argument”. She observed Mr Tikaram walk over to the deceased and push his chest. She formed the view that he was not attempting to resuscitate the deceased but was instead attempting to harm him further.

4. [6]

   Shortly before 11pm Mr Tikaram called the emergency operator. He is recorded as having said “I’ve been abused for too long. I took it out. That’s it. I smashed this guy, you’d better get here quick ’cause I’ll kill him”.

5. [7]

   Mr Tikaram participated in an electronically recorded interview with the police the following morning. He told the police that he had bashed his father “senseless”. An argument had developed while Mr Tikaram was preparing dinner. His father was taunting and baiting him. This had been the pattern between them for many years. There was also a history of physical altercations between the two men for a considerable period. Mr Tikaram said that as the deceased became older this pattern “just increased and increased”. He admitted that he continued to strike the deceased uncontrollably even after he appeared to be unconscious. Mr Tikaram said “I’ve been going through a lot of domestic violence for 30 years”.

6. [8]

   In this last respect it is clear that there had been a history of violence within the family. Mrs Tikaram told the police that in 2006 there had been an incident in which her son and her husband became involved in a fight. The deceased struck Mr Tikaram with a metal club-lock. He sustained a traumatic brain injury as a result. The deceased was charged over this incident but the matter did not proceed. Medical records indicate that Mr Tikaram attended hospitals over the years that followed seeking pain killing medication.

Committal proceedings

1. [9]

   Mr Tikaram was originally charged with murder. However, following representations, his offer to plead guilty to manslaughter was accepted in full discharge of the indictment upon the basis of substantial impairment. Mr Tikaram was committed for sentence on 17 August 2016 on a charge of manslaughter. He has been in custody since the date of his arrest on 23 December 2014.

Medical evidence

1. [10]

   Dr Eagle is a consultant forensic psychiatrist. She re-examined Mr Tikaram on 2 September 2015. She reported upon her findings on 1 October 2015. Dr Eagle diagnosed Mr Tikaram to be suffering from a chronic psychotic illness, namely schizophrenia. This was characterised by relapses of psychosis evidenced by auditory hallucinations, delusions of reference, persecutory delusions and thought disorder. His active symptoms of psychosis appeared to be in remission following treatment whilst in custody with anti-psychotic medication.

2. [11]

   Dr Eagle’s opinions concerning Mr Tikaram’s state of mind at the time of the commission of the offence were as follows:

3. [12]

   Dr Eagle’s opinions were not challenged.

4. [13]

   Professor Greenberg is also a forensic psychiatrist. He reported on Mr Tikaram to the Director of Public Prosecutions on 21 January 2016. His conclusions are relevantly as follows:

5. [14]

   Professor Greenberg’s opinions were also not challenged.

6. [15]

   Dr Furst is a clinical forensic psychiatrist who most recently examined and reported upon Mr Tikaram on 21 November 2016. He offered the following relevant conclusions and opinions:

7. [16]

   As will be apparent, Dr Furst has particularised a detailed and specific treatment plan for Mr Tikaram when he returns to the community upon his release. It is unnecessary to reproduce the details of that plan. It is, however, important to observe that the establishment of such a plan and the need to monitor Mr Tikaram’s compliance with it are matters that persuasively and uncontroversially inform a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Consideration

1. [17]

   The maximum penalty for manslaughter is 25 years imprisonment. Since the offence of manslaughter covers such a wide variety of circumstances with differing penal consequences, determining an appropriate sentence for manslaughter is “notoriously difficult”: R v Green [1999] NSWCCA 97 at [24]. In R v Blacklidge (unrep, 12 December 1995, NSWCCA), Gleeson CJ said this:

2. [18]

   In the present case, Mr Tikaram was suffering from an abnormality of mind. That does not negate his criminal responsibility even though it diminishes it. It is also well established that an offender’s mental condition can have the effect of reducing his or her moral culpability and that matters such as general deterrence, retribution and denunciation have less weight. Sentencing an offender who suffers from a mental disorder commonly calls for a “sensitive discretionary decision”: R v Engert (1995) 84 A Crim R 67 at 68.

3. [19]

   In the present case, Mr Tikaram has the considerable benefit of the continuing support of his mother and his extended family. Mrs Tikaram gave evidence before me, from which it was clear that her son’s disabilities have long affected both her and her son. Indeed, Mrs Tikaram was at one time herself the victim of an assault at the hands of her son. This was however as long ago as 2009 and Mrs Tikaram remains dedicated to her son’s rehabilitation notwithstanding all that has happened. She foresees that he will come to live with her in her apartment when he is finally released from custody.

4. [20]

   The present offence is, in my opinion, at the low end of objective seriousness for offences of its type. The uncontested role played by Mr Tikaram’s severe psychotic illness in the tragic events that occurred makes this an inevitable conclusion. As always, I emphasise that this assessment of objective seriousness does not mean that the death of the deceased at the hands of Mr Tikaram is not a serious criminal act. The unlawful taking of another human life is always serious. However, the allocation of an opinion about the objective seriousness of this, or any, offence should not be misunderstood. It is no more and no less than a comparative assessment of this particular offence having regard to other hypothetical offences of its kind.

5. [21]

   In the present case, Mr Tikaram was suffering from a mental condition which has been described already in detail. His mental illness was a significant, if not the predominant, factor contributing to the commission of this offence. It is an important factor to be accommodated in any proper understanding of Mr Tikaram’s propensity for aggression. Mr Tikaram was, both by agreement and by reference to the objective facts, significantly mentally impaired at the time of the commission of this offence.

6. [22]

   Mr Tikaram did not give evidence before me. He did not therefore express remorse or contrition for any of his actions. He did express remorse to Dr Furst. Having regard to the detailed expert psychiatric analysis of his condition, however, I do not regard Mr Tikaram’s failure to give evidence before me to be a matter of any particular relevance or importance. The medical evidence suggests that Mr Tikaram lacks insight at a number of different levels. It would in my view be both pedantic and unrealistic in those circumstances to treat the absence of expressions of remorse by Mr Tikaram for the death of his father as either a helpful or meaningful contributor to the sentencing exercise.

7. [23]

   It is difficult to assess the prospects of Mr Tikaram reoffending. That is because his historical and current risk factors are directly related to his mental condition and importantly to the control of that condition by physical community support and adherence to the recommended therapeutic and pharmacological regimen. Mr Tikaram’s risk of potential future dangerousness is a social and criminological circumstance that necessarily must yield at some point to his right to return to the community. Dr Furst was of the opinion that Mr Tikaram had a moderate risk of reoffending having regard to his prior criminal history, substance abuse, brain injury, major mental illness and low levels of insight. I am also mindful of the substantial likelihood that Mr Tikaram will receive appropriate long term family and community support and of the fact that his history of previous offending appears to a large extent to have been related to his untreated mental conditions. There is also considerable evidence to suggest that Mr Tikaram’s active symptoms of psychosis appear to be in remission following treatment whilst in custody with anti-psychotic medication.

8. [24]

   Mr Tikaram pleaded guilty at the earliest relevant opportunity. That is because the plea to manslaughter followed successful representations to the Crown having regard to his mental condition at the time of the offence, which necessitated detailed examination and assessment. Any delays associated with the offer or acceptance of the plea do not diminish the appropriateness of a 25 percent discount for its having been offered at the earliest available opportunity in this case.

9. [25]

   As I have also already indicated, this is a case in which I consider there are special circumstances to justify a variation of the statutory ratio of parole and non-parole periods. It is inevitable that Mr Tikaram will require and should receive continuing close and sympathetic community supervision coincidentally with his recommended medical management. I foresee a critical role for the NSW State Parole Authority in Mr Tikaram’s rehabilitation and reintegration.

Crimes (High Risk Offenders) Act 2000

1. [26]

   Mr Tikaram is, by reason of the offence for which he is to be sentenced, a person who has committed a “serious violence offence” for the purposes of the Crimes (High Risk Offenders) Act 2000. That Act establishes a regime by which such offenders may become the subject of extended supervision orders or continuing detention orders before the expiration of their sentence. I am required by s 25C(1) of the Act to warn Mr Tikaram of the existence of the Act and its application to him.

2. [27]

   For reasons that I trust will be obvious, however, I would anticipate and hope that Mr Tikaram’s circumstances would not and will not attract the operation or implementation of any of the provisions of that Act. Mr Tikaram is in need of medical treatment rather than extended detention. Indeed, having regard to the opinions of Dr Furst, Mr Tikaram’s continued or extended incarceration is likely to be inimical to his long term recovery and rehabilitation. Moreover, the sentence I intend to impose has been structured to ensure that he remains under the supervision of the NSW State Parole Authority for several years.

Sentence

1. [28]

   Jay Tikaram, for the offence of the manslaughter of Ajay Tikaram you are convicted. I sentence you to imprisonment for 6 years commencing on 23 December 2014 expiring on 22 December 2020 with a non-parole period of 3 years expiring on 22 December 2017. The first date upon which you will become eligible for release on parole is 23 December 2017.