Patel v R

[2019] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Patel v R [2019] NSWCCA 170
Hearing dates:	24 June 2019
Date of orders:	26 August 2019
Decision date:	26 August 2019
Before:	Simpson AJA at [1] Harrison J at [2] N Adams J at [63]
Decision:	(1)   Grant leave to appeal. (2)   Dismiss the appeal.
Catchwords:	CRIME – sentence appeal – where applicant convicted of manslaughter on the basis of excessive self-defence – where applicant sentenced to imprisonment for 9 years and 4 months with a non-parole period of 7 years – whether sentencing judge erred in assessment of the gravity of the offence – whether sentencing judge erred in finding that the offence was aggravated because it occurred in the victim’s home – whether sentencing judge erred in finding the applicant had an intention to kill – whether sentencing judge erred in finding that general deterrence was relevant to sentencing – whether sentencing judge erred by assuming that applicant must be sentenced to imprisonment – whether sentencing judge erred by failing to take into account delay as a mitigating factor – whether applicant should be resentenced
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 5, 21A(2)(eb)
Cases Cited:	Jonson v R [2016] NSWCCA 286 Mulato v R [2006] NSWCCA 282 Patel v R [2017] NSWCCA 121 R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) R v McDonald [2019] NSWSC 858 R v Patel (No 3) [2018] NSWSC 952 R v Todd [1982] 2 NSWLR 517
Category:	Principal judgment
Parties:	Manisha Patel (Applicant) Crown (Respondent)
Representation:	Counsel: T Game SC with T Quilter (Applicant) H Baker SC with H Roberts (Respondent)   Solicitors: Musgrave Legal (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2013/247888
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law - Criminal Citation: [2018] NSWSC 952 Date of Decision: 22 June 2018 Before: Lonergan J File Number(s): 2013/247888

Judgment

1. SIMPSON AJA: I have had the advantage of reading in draft the judgment of Harrison J, with which I agree. Like Harrison J, I would have imposed a lengthier sentence than that imposed by Lonergan J, and, accordingly, while leave to appeal against sentence should be granted, the appeal should be dismissed.

2. HARRISON J: Manisha Patel was found guilty of manslaughter on 9 March 2018 based upon a finding of excessive self-defence. On 22 June 2018, Ms Patel was sentenced by Lonergan J to imprisonment for 9 years and 4 months with a non-parole period of 7 years (see R v Patel (No 3) [2018] NSWSC 952). After a discount of 15 percent for an earlier offer to plead guilty to manslaughter, her Honour’s starting point was imprisonment for 11 years. Ms Patel seeks leave to appeal against the severity of her sentence based upon a series of discrete grounds of appeal. A complaint upon the basis that the sentence was manifestly excessive was ultimately not pursued in this Court.

3. The remaining grounds of appeal are as follows:

Ground 1: Her Honour failed to take into account a number of material facts when assessing the truth of Ms Patel’s version, leading to the findings of fact her Honour made, relevant to her assessment of the gravity of the offending.

Ground 2: Her Honour erred in finding that the offence was actually aggravated because it occurred in the victim’s home.

Ground 3: Her Honour erred in finding that Ms Patel had an intention to kill.

Ground 4: Her Honour erred in relation to her assessment of the seriousness of the offence.

Ground 5: Her Honour failed to consider the relevance of general deterrence in the context of this individual case.

Ground 6: Her Honour acted on a wrong principle by wrongly assuming that the “starting point” in manslaughter cases is that the offender “must be sentenced to imprisonment”.

Ground 7: Her Honour erred by failing to take into account delay (almost 5 years between arrest and sentence; more than 3 years between offering to plead guilty and sentence) as a mitigating factor.

Procedural background

4. Ms Patel killed Purvi Joshi on 30 July 2013. She was charged with Ms Joshi’s murder on 15 August 2013. Ms Patel was committed for trial on 9 December 2014 and arraigned in the Supreme Court on 6 February 2015. By letter to the Director of Public Prosecutions dated 5 March 2015, Ms Patel offered to plead guilty to manslaughter upon the basis of excessive self-defence. That offer was rejected on 12 March 2015.

5. Ms Patel was tried for murder before Wilson J and a jury. The jury returned a verdict of guilty to murder on 1 July 2015. Ms Patel was sentenced on 21 September 2015 to a non-parole period of 18 years imprisonment with a balance of term of 6 years.

6. On 2 June 2017, this Court allowed Ms Patel’s appeal against her conviction: see Patel v R [2017] NSWCCA 121. Her conviction was quashed and a new trial was ordered. Ms Patel was tried before Lonergan J and a jury commencing on 7 February 2018 and the jury returned a verdict of guilty of manslaughter on 9 March 2018. The only form of manslaughter left to the jury was excessive self-defence. Ms Patel’s current sentence was imposed almost 5 years after her arrest.

Factual summary

7. Her Honour reviewed the facts in the course of her remarks on sentence as follows:

“[13] Ms Joshi was born in Gujarat, India on 16 December 1984 and was 28 years old at the time of her death. The offender was born in Gujarat State, India on 8 December 1982 and was 30 years old at the time of Ms Joshi’s death. Niraj Dave was born in Gujarat, on 7 July 1979 and was 34 years old at the time of Ms Joshi’s death.

[14] The offender married in India and moved to Australia in 2008 to live with her husband, Mr Patel. They separated in 2010 and she remained in Australia. In August or September 2011, she met Niraj Dave through an Indian matrimonial website called Shaadi.com, which was a website used by Indian nationals seeking prospective marriage partners. At that time, Mr Dave was living in Australia working for SNP Security at Sydney Airport. He was married, but separated from his wife, Ektar Acharya, who lived in India.

[15] In about September or October 2011, a sexual relationship began between the offender and Mr Dave. In November 2011, Mr Dave moved into the offender’s unit at Bryant St, Rockdale, shared her bedroom and paid half the rent.

[16] The sexual contact between the offender and Mr Dave lessened in 2012, however they still shared a bedroom at the flat in Rockdale, shared expenses and meals, and remained close.

[17] The offender occasionally contacted men through Shaadi.com to look for a husband during 2012 and 2013.

[18] In July to September 2012, the offender travelled to India to spend time with her family. Around this time, Mr Dave was introduced over the internet to Ms Joshi, who was living in India. Ms Joshi had been previously unhappily married and had separated. After that contact, Mr Dave’s parents met Ms Joshi’s parents in India with a view to determining whether a marriage between them would be suitable. Online and telephone contact between Mr Dave and Ms Joshi continued.

[19] Mr Dave did not share with the offender his developing relationship with Ms Joshi. He told the offender that he was speaking with his ex-wife Ekta and that he was considering reuniting with her. Her, being his ex-wife Ekta.

[20] In January 2013, both the offender and Mr Dave travelled to India on the same flight. Whilst they were in India, they had no contact with each other either by phone or by text.

[21] Unbeknownst to the offender, Mr Dave actually spent a proportion of his time in India in January 2013 getting to know Ms Joshi. In that time, Ms Joshi and Mr Dave decided they would marry. During the flight back to Sydney, they stopped over in Dubai where the offender and Mr Dave drank alcohol, shared a hotel room and had sexual intercourse.

[22] On return to Sydney, the offender and Mr Dave resumed living together at the unit in Bryant St, Rockdale. They had also both returned to study at the CCNA course, which was a computer network engineering course, so that they could obtain work in that industry.

[23] In early March 2013, the offender discovered that she was pregnant and told Mr Dave. There was a decision made to terminate the pregnancy. The termination took place on 20 March 2013. Mr Dave attended both the GP appointment at which the pregnancy was confirmed as well as driving the offender to the premises in Surry Hills for the termination. The offender was very distressed by the termination. A couple of days prior to the termination, Mr Dave told the offender about Ms Joshi and his plans to marry Ms Joshi.

[24] On 20 May 2013, Mr Dave moved into Unit 9 of 167 Bestic St, Kyeemagh. The offender assisted him in securing this property by providing a wage slip and signing the lease as co-tenant. She also stayed there from time to time. There was no plan for the offender to live at the unit with Mr Dave, however she developed a gynaecological cyst and infection which required surgical removal in June 2013 and following her discharge from hospital, she stayed at the unit with Mr Dave to recuperate.

[25] In October 2012, the offender and Mr Dave had jointly purchased a black Peugeot convertible. Some time before Ms Joshi’s arrival, it was agreed that Mr Dave would purchase the offender’s share in that car. On 3 July 2013, the offender purchased a Toyota Yaris for her to travel from Parramatta to Sydney Airport where she had recently obtained employment at SNP Security, the same place Mr Dave worked.

Arrival of Ms Joshi

[26] Ms Joshi told Mr Dave that she wanted to be in Sydney for his birthday on 7 July and would be arriving on 5 July. On the day of Ms Joshi’s arrival, the offender left the unit at Bestic Street, and moved into 37/3 Campbell Street, Parramatta where she shared a bedroom with Ms Bhatt. A male person by the name of Vinai Tiwari lived in the other bedroom.

[27] Ms Joshi arrived that evening and commenced living at the Bestic Street unit with Mr Dave. She also began studying English at CQ University in Kent Street, Sydney.

[28] Mr Dave did not tell Ms Joshi that he had had a sexual relationship with the offender, or that he had shared accommodation with her for 18 months.

[29] The offender did not see Mr Dave again until 24 July 2013, although there was some telephone contact.

[30] The offender first met Ms Joshi on 24 July 2013.

[31] On 25 July, the offender and Ms Bhatt, Mr Dave and Ms Joshi all went shopping in Westfield at Parramatta. Mr Dave paid for a cream overcoat for the offender. The offender and Ms Bhatt stayed at the Bestic Street unit that night.

[32] The offender, Ms Bhatt, Mr Dave and Ms Joshi spent time together on Saturday 27 July at Flemington Markets. The offender and Ms Bhatt slept the night at the Bestic Street unit. Mr Dave put together a bed that had been purchased for the guest room, and Ms Bhatt and the offender shared that bed.

[33] At about 10pm this night, Mr Dave went to work. It was the defence case that the offender got out of bed and went to sleep in the lounge room on the sofa and left her handbag which contained various items including her phone and passport near the sofa and that early the next morning, the offender was woken by Ms Joshi (while Mr Dave was still at work and Ms Bhatt was asleep). She was holding the offender’s phone and saying things to her about the purchase of the coat when they were shopping, and asking “What’s going on between you and Niraj?” The defence case was that Ms Joshi said, “Tell me everything or I will not give you your passport”.

[34] The offender claims to have then tried to placate Ms Joshi, insisting that there was nothing between her and Mr Dave, but disclosing that “something happened” in Dubai and that she had become pregnant and had had a termination of the pregnancy. The defence case was that this then led to Ms Joshi telling the offender to bring the papers from the clinic where the termination occurred, otherwise she would not return the passport.

[35] It was also the defence case that Ms Joshi made a plan for her to come to the unit on her way to work when Mr Dave would still be at work on night shift and told her not to tell anyone about their discussions. None of this was disclosed to Mr Dave.

[36] I pause here to observe that I have considerable reservations in accepting the offender’s version of events. I accept the Crown’s submission that the offender was a proven and inveterate liar. The offender lied many, many times to authorities and others. These lies included the construction of an elaborate hoax on 1 August 2013 when the offender deliberately stabbed herself and claimed that she had been attacked by masked men. I will return to the issue of the offender’s credibility later in these remarks.

[37] The offender and Ms Bhatt returned to the unit at Campbell Street, Parramatta and spent Monday 29 July there.

[38] Ms Joshi went to university and then spent the evening of 29 July having dinner with Mr Dave. She spoke to her parents for a short period that night. Mr Dave left at 10.20pm to go to work. Ms Joshi’s parents recollected hearing him in the background during their telephone conversation with their daughter, saying he was soon to leave for work.

[39] The offender left her apartment building in Parramatta in her car at about 2.38am. She was due at work at the airport at 4am. At 3.19am, she stopped at a 7-Eleven service station on West Botany Street and refuelled her vehicle, and bought a coffee. At 3.24am, she left the service station, turning left into Bestic Street and drove in an easterly direction. These timings and events are corroborated by CCTV images and film.

[40] At 3.32am, CCTV from a neighbouring house shows a person moving towards 167 Bestic Street on the southern footpath of Bestic Street from the direction of General Holmes Drive. That person turned right into 167 Bestic Street and went out of view. That person was the offender.

[41] The offender went to Unit 9 of 167 Bestic Street. The manner in which she gained access to that unit I am unable to determine due to the absence of any reliable evidence on that issue.

[42] The reason why she went to the unit at that time is unknown, again due to the absence of any reliable evidence on that issue.

[43] The offender knew that Niraj Dave would be at work.

[44] Whilst the offender was inside the unit, there was an altercation between the offender and Ms Joshi.

[45] The reason for the altercation, how it began, who instigated it, and what was involved and in what order certain injuries were inflicted upon Ms Joshi are issues I am unable to resolve due to the absence of reliable evidence.

[46] During the altercation, a knife was held by Ms Joshi in such a way and deployed in such a manner that the offender believed that Ms Joshi was threatening her and that in order to defend herself, she needed to take physical action.

[47] During the altercation, there was a struggle over the knife and Ms Joshi sustained cuts to her hands and fingers.

[48] At some point in the struggle, the offender disarmed Ms Joshi of the knife, but despite this, the offender continued to believe she needed to respond to a perceived threat from Ms Joshi such that she smothered and strangled Ms Joshi to death.

[49] The offender stabbed the victim in the abdomen twice. One wound was 15mm deep and the other 100mm. There was minimal bleeding and no bruising which the forensic pathologist Dr Bailey suggested meant that there was reduced blood circulation at the time of the stabbing. Other than that, I am unable to determine at what stage of the altercation either stabbing occurred.”

8. Ms Patel did not give evidence at her second trial. However, by agreement, the transcript of her evidence from the earlier trial was tendered and read to the jury.

Ground 1

9. Ms Patel asserts that her Honour failed to take account of all material facts. She contended that her Honour should have made findings more favourable to her, and should have accepted Ms Patel’s account of what led to the incident in the unit. These more favourable findings were identified as follows:

1. Ms Joshi took Ms Patel’s passport two days before the incident.

2. Ms Joshi refused to return it until Ms Patel provided evidence of the termination of her pregnancy with Mr Dave’s child.

3. Ms Joshi arranged for Ms Patel to attend the unit for that purpose.

4. Ms Patel attended the unit on her way to work.

5. Ms Joshi let Ms Patel into the unit.

6. Ms Patel provided evidence of the termination but did not receive her passport.

7. An argument occurred and Ms Patel took back the paper evidencing her termination and started looking for her passport in the unit.

10. Her Honour ultimately found that Ms Joshi armed herself with a knife and “unexpectedly threatened” Ms Patel, causing her to fear for her life. A struggle occurred which led to Ms Patel killing Ms Joshi in an act of excessive self-defence.

11. These facts that Ms Patel submitted would have been more favourable to her are to be contrasted with the corresponding findings her Honour actually made, which were as follows:

1. Ms Patel was due to start work at Sydney airport on 30 July 2013 at 4.00am.

2. Ms Patel attended Ms Joshi’s unit at Kyeemagh at around 3.32am.

3. The reason that Ms Patel went there at that time is unknown.

4. The manner in which Ms Patel gained access to the unit is also unknown.

5. An altercation occurred inside the unit.

6. A knife was introduced or deployed by Ms Joshi during the struggle.

7. Ms Joshi “unexpectedly threatened” Ms Patel with a knife.

8. Ms Patel felt that her life was in danger and that she needed to take physical action.

9. During the altercation, there was a struggle over the knife, which led to cuts on Ms Joshi’s hands and fingers.

10. At some point, Ms Patel disarmed Ms Joshi.

11. Following this, Ms Patel still believed that she needed to respond to a perceived threat from Ms Joshi such that she smothered and strangled her causing death.

12. Ms Patel stabbed Ms Joshi twice in the abdomen but this was not the cause of death.

13. Ms Patel thought that Ms Joshi was probably dead but did not check or try to resuscitate her or call for help.

14. Ms Patel left the premises at 4.14am.

15. Her Honour that the reason for the altercation, including how it began, who instigated it and what it involved, as well as the order in which Ms Joshi’s injuries were inflicted, were all unknown.

12. Ms Patel contended that an acceptance of her alternative version of the facts would have meant that her overall level of criminality would likely have been assessed as being lower than the assessment made on the facts as found by her Honour.

13. The burden of Ms Patel’s contention is that she went to the unit for a legitimate purpose to retrieve her passport. That single but allegedly significant proposition is comprehensively examined in Ms Patel’s detailed written submissions in support of this ground. These submissions outline a comparison of competing inferences in what is described as a more nuanced approach than that taken by her Honour, and one which Ms Patel argues her Honour should have adopted. An ultimate conclusion that Ms Patel attended the unit for an innocent purpose is said to inform the result that her level of criminality must have been lower than that found by her Honour.

14. I do not think that that can be correct. The point at which Ms Patel’s conduct relevantly became criminal was when she exceeded what a reasonable person would have done in her position in response to the perceived threat. Self-evidently, a finding of excessive self-defence assumes the jury’s acceptance of the fact that Ms Patel perceived a need to take steps to act in response. It proceeds upon the basis that Ms Patel perceived that Ms Joshi was the assailant and that the relevant threat was created by her. Whatever reasons Ms Patel may have had for going to the unit, including even the hypothetical possibility that she went there with the intention of committing a crime, are either irrelevant, or become merged in the fact of the jury’s obvious acceptance that Ms Joshi was the author of the situation to which it found Ms Patel was entitled to respond. Her criminality is to be measured by her actions performed in the course of committing the offence and the extent to which she exceeded what a reasonable person in her position would have done in the same circumstances. It is not in my view to be assessed by a “nuanced” examination of the reasons why Ms Patel and Ms Joshi came to be at the premises on the morning in question. Whatever intentions or motives Ms Patel might have had for going to Ms Joshi’s unit in the first place must necessarily have been overtaken by the jury’s acceptance of the fact that Ms Patel acted in self-defence. Ms Patel’s approach invites acceptance of the practically unrealistic and unworkable proposition that the seriousness of the offence of manslaughter by reason of excessive self-defence should incorporate a permissible consideration of anterior conduct that formed no actual part of the crime of manslaughter committed in that way. Certainly on the facts of this case, the reasons for Ms Patel being present at Ms Joshi’s home are not relevant to the assessment of the objective gravity of her offending.

12. In the present case there is no operative difference between her Honour’s findings and those for which Ms Patel alternatively contends. Her Honour was unable to determine why Ms Patel went to the unit or how she gained access to it. There is no relevant difference between that and Ms Patel’s evidence that she attended by pre-arrangement in order to provide confirmation that she had had a termination. It is clear on either account that Ms Joshi unexpectedly produced a knife. That fact is on either version unrelated to why Ms Patel went there in the first place or how she gained access to the unit, how or why the altercation commenced when it did or who may have started it. It is common to both versions that the argument that appears to have occurred between them erupted with respect to events that had nothing to do with why Ms Patel was there or how she gained entry.

13. Finally, and in any event, it was entirely open to her Honour to decline to accept Ms Patel’s account other than to the extent that it was necessary to do so consistently with the jury’s verdict. The version of events most favourable to Ms Patel, for which she contends in the present circumstances, depends entirely upon her Honour’s acceptance of her and the account that she gave. As the Crown has in my view correctly pointed out, none of the individual matters for which Ms Patel contends was unequivocally and objectively capable of supporting an inference about what occurred. The several pieces of evidence were no more than a collection of possible facts from which more than one inference could be drawn. Her Honour was entitled to reject the version provided by Ms Patel upon the basis that she was not prepared to accept any aspect of her account unless it must have been one accepted by the jury. Where there were competing possibilities, her Honour did not reach any conclusion beyond reasonable doubt.

14. Her Honour’s approach was entirely in accordance with principle. She was not obliged to make findings in accordance with Ms Patel’s contentions about matters upon which there was no evidence or merely equivocal evidence. Her Honour formed the view that Ms Patel was unreliable and there was no other evidence of why she attended the unit on the day in question.

Ground 2

18. Her Honour said this at [102] of her remarks on sentence:

“The offence was committed in the home of the victim. That was submitted by the Crown to be an additional aggravating factor. The defence submitted that in the circumstances of self-defence, where the aggressor was the victim Ms Joshi, I should not make such a finding. Given the finding that I have made about the lack of credibility of the offender, and so the absence of reliable evidence about the circumstances in which the offender came to be inside the premises, I do not accept at face value the defence submission. The jury’s verdict is consistent with a conclusion that excessive force in self-defence comprising the crime of manslaughter was used by the offender in the victim’s home. In those circumstances, I conclude that is an aggravating factor.”

19. In the present case, the offence of manslaughter was committed in Ms Joshi’s home when Ms Patel responded in self-defence with excessive force to a perceived threat: see s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. Ms Patel argued that an analysis of the purpose of the section is a useful starting point for the determination of whether or not this fact “actually aggravates the offence in question”, in the sense discussed by Bathurst CJ in Jonson v R [2016] NSWCCA 286 at [52]. According to the Chief Justice at [41], its purpose is to recognise “that a home is a place which should be safe and secure for persons who reside, or who are otherwise present, at such a place”. Ms Patel argued that it is therefore unlikely that the provision would have the effect of “actually aggravating” an offence in circumstances where an occupant of the home creates the perceived threat to which the offender thereafter responds by way of self-defence. Ms Patel submitted that the mere fact that the offence happened in Ms Joshi’s home, as opposed to any other location, did not make a meaningful difference to her criminality. In other words, it was not a factor that actually aggravated the offence.

20. In my view, the risk to the safety and security of Ms Joshi’s home was created by her own actions. It is a little difficult as a matter of principle to see how a crime assessed by reference to the reasonable person’s response to the perceived threat created by those actions can be reliably or even fairly characterised by the fortuitous circumstance that it took place in Ms Joshi’s home. Perhaps more fundamentally, as I have adverted to in dealing with the previous ground of appeal, it is somewhat difficult to ascribe gradations of seriousness or moral culpability to an unlawful killing that is established by proof not of some criminal intent or guilty mind but by reference to a failure to conform to an objective standard. The fact that Ms Patel’s crime took place in Ms Joshi’s home does not in these circumstances seem to me to be an aggravating factor.

21. I would allow this ground of appeal.

Ground 3

22. The verdict or the jury was that Ms Patel had either an intention to kill Ms Joshi or an intention to cause her grievous bodily harm. It will be recalled that her Honour was unable to resolve “[t]he reason for the altercation, how it began, who instigated it, and what was involved and in what order certain injuries were inflicted upon Ms Joshi”: at [45]. Notwithstanding that uncertainty, her Honour concluded beyond reasonable doubt that Ms Patel intended to kill Ms Joshi as distinct from acting with some lesser intention. Her Honour did so first upon the basis that Ms Patel’s conduct involved the deliberate and sustained or repeated infliction of “severe” neck compression combined with smothering and secondly a failure to resuscitate her or seek assistance.

23. With respect to the first basis, Ms Patel submitted as follows:

“63. In relation to the neck compression, her Honour was limited in what could be made of this because of the limits of her other factual findings. That is, consistent with the jury’s findings, it was open to her Honour to find that the force used by [Ms Patel] was excessive. However, her Honour was unable to identify the degree to which such conduct departed from a proportional response in circumstances where her Honour was unable to make findings about the preceding conduct. This issue is further dealt with under Ground 4 below in considering whether or not her Honour could find the neck compression was ‘manifestly’ excessive.”

24. With respect to the second, Ms Patel contended that her failure either to resuscitate Ms Joshi or to call for assistance were consistent with either state of mind.

25. Each of these challenges to her Honour’s finding is based upon what Ms Patel contends is the paucity of evidence available to her. The available findings were correspondingly limited to a finding that Ms Joshi “introduced or deployed” a knife and that Ms Patel feared for her life. She contended that these facts, and in light of the matters that her Honour could not find, meant that there was no sufficient basis for a finding adverse to Ms Patel that she formed an intention to kill.

26. Her Honour said this at [52] of her remarks on sentence:

“I find to the requisite standard, and consistently with the jury’s verdict, that there was a physical struggle over the knife, that Ms Joshi had the knife in her hand or hands and deployed it in such a way that the offender felt threatened and a physical struggle occurred. It is uncontentious that Ms Joshi died from suffocation and neck compression and that neither of the stab wounds was a cause of Ms Joshi’s death. The offender believed her conduct was necessary to defend herself. The offender thought Ms Joshi was probably dead, but did not check, she did not try to resuscitate her and did not call 000 for help.”

27. The post-mortem findings were also dealt with by her Honour at [67] - [75] of her remarks. The direct cause of death was the combined effect of compression of the neck and smothering. Petechial haemorrhaging present around the eyes and in the soft tissue of the lower half of the face and scalp were indicative of significant compression of the neck. There were multiple areas of bruising within the neck muscles as well as a fracture of the left side of the hyoid bone located under the jaw.

28. Her Honour referred to some of Dr Bailey’s evidence as follows:

“[72] Dr Bailey described the mechanism of death by neck compression as follows:

So in cases of neck compression, the mechanism of death is usually from vascular compression, so like I said, the trachea is actually very hard to compress. It's usually, depending on the mechanism, the last thing that you're able to compress when applying force to the neck, and long before you get to that pressure, you're going to compress the veins which we've discussed previously on a low pressure vessel and can collapse quite easily, then the arteries which need an extra couple of kilos of pressure on top of that to collapse them.

In most cases, the pressure is not adequate enough to completely occlude even the arteries which is why you get the petechial haemorrhages, so if you had enough pressure on the neck to collapse the windpipe, you would have already collapsed arteries and veins which means no blood in, no blood out, so the neck pressure in the head would stay the same and you wouldn't get petechial haemorrhages. The petechial haemorrhages tells me that there has been blood coming in but not the same amount of blood going out so the veins are compressed. The arteries might be in some degree compressed but not completely. Blood goes in, blood doesn't come out, the blood builds up in the head, the small vessels pop and create those tiny haemorrhages. That's the physics behind where petechial haemorrhages are thought to come from.

There is then a question:

So in terms of Purvi Joshi's death, and having now given evidence about the injuries to the muscles and the structure of the neck, as well as highlighting the petechial haemorrhaging, are you able to attribute whether it's one or other or a combination of the prevention of breathing or the blocking of the vessels which was the contributor to her death?

A: So I have evidence of neck compression, I have evidence of the blood pressure in the head building up which tells me that there's been vascular compression. That alone if prolonged can be fatal. It is the most common cause of death in cases of neck compression whether it's manual strangulation, ligature strangulation or hanging. I don't have any evidence that there was collapse or crush of the windpipe or the larynx. There was a fracture of the hyoid bone.

…

Q: And the various haemorrhages, small haemorrhages that you found on the muscles of the neck suggest to you that there were different applications of pressure to those areas?

A: There were. Yeah, there were a number of bruises basically inside the muscles on both sides of the larynx and behind the larynx. So there could have been one broad pressure that compressed the larynx and pressed it into the back of the neck to cause them or it's possibly multiple pressures at multiple times on both sides of the neck.

[73] Dr Bailey said this regarding the fracture of the hyoid bone:

Q: In terms of the injury to Ms Joshi's neck, are you able to say what degree of force or pressure needed to be applied to fracture her hyoid bone?

A: Again it's very difficult to say. The hyoid bone is, it's a bit like a wishbone so it doesn't necessarily require a great deal of force. It may have required more force in this case just because there was a cartilaginous portion, and the cartilage is flexible so you'd require more force to fracture the cartilage. The injury itself doesn't isn't fatal, it's not that significant in isolation, however, it does speak to a degree of neck compression. Your hyoid bone is tucked right up under your jaw. People don't trip and break their hyoid bones. It's very rare to see hyoid bone injury outside of the setting of neck compression whether it be ligature strangulation, manual strangulation or hanging.

[74] Dr Bailey gave this evidence in regard to the stab wounds:

‘Two stab wounds of the abdomen, one displaying a small amount of associated haemorrhage, however, the degree of blood loss was not significant and these injuries are likely to be peri mortem in origin.’

Q: When you say they are likely to be peri mortem in origin.

A: Peri, around, mortem, death, so around the time of death. Death is not necessarily a finite point in time. All of your body systems shut down in a sequence, so it is very difficult to sort of say at what point is somebody technically dead or alive. It's usually in relatively quick succession though. The amount of haemorrhage that is associated with this wound does not look like somebody who had significant blood pressure at the time the injury was inflicted. It does go through some pretty major vascular structures and some large organs that I would expect to bleed significantly if there was blood pressure at the time, so there was either very low blood pressure or there was waning blood pressure, so there was either no heartbeat or a small heartbeat or just a very weak heartbeat.”

29. Ms Patel’s version of the struggle was that she placed “one hand over Ms Joshi’s face and neck to stop her from swearing” and that she used her other hand to hold down Ms Joshi’s arm as she was still holding the knife. Ms Patel intermittently removed her hand from Ms Joshi’s face but she continued to swear when she did so. Ms Patel took the knife from Ms Joshi’s hand, inferentially after she ceased to resist, and stabbed her just before or just after she died.

30. In my view, her Honour’s conclusion that Ms Patel acted with an intention to kill is unexceptionable. The evidence of Dr Bailey, about the significant aspects of which there was no relevant dispute, was itself sufficient to explain the apparent circumstances of the physical acts causing death from which it was entirely open to her Honour to find that Ms Patel acted with an intention to cause death. That is so even accepting Ms Patel’s contention that her inactivity, in terms of resuscitation or summoning an ambulance, was entirely neutral.

Ground 4

31. This ground is necessarily related to Ground 3.

32. Her Honour found that this particular instance of manslaughter was a “serious offence of its kind”: at [100]. Ms Patel submitted that a conclusion that the smothering was manifestly excessive was not reasonably open to her Honour (see Mulato v R [2006] NSWCCA 282 at [37] and [46]) either on the findings that were made or particularly having regard to the findings that were not made. Ms Patel submitted that such a conclusion necessarily requires an assessment of the smothering in context, for example, as in response to something, and that it cannot be described as manifestly excessive simply because it caused death.

33. However, both the nature and extent of the injuries to Ms Joshi were in evidence. It was open to her Honour to conclude that the level and degree of violence perpetrated upon Ms Joshi by Ms Patel continued past the point required to disable her for the purposes of her self-defence. They are matters going to the seriousness of the offence. Her Honour found that Ms Patel smothered and strangled Ms Joshi to death after she had been disarmed. She found that Ms Patel intended to kill Ms Joshi. As the Crown has described, the killing was an act of close physical violence in which Ms Patel either applied sustained force to Ms Joshi’s neck or repeatedly applied force of some severity, occluding her airways by covering her nose and mouth, past the point where it was necessary to defend herself. Ms Patel also stabbed Ms Joshi when she was either close to death or at the point of death.

34. It was in these circumstances clearly open to her Honour to regard the extent to which Ms Patel exceeded what a reasonable person in her position would have done as constituting a serious offence of its kind.

Ground 5

35. This ground of appeal asserts that general deterrence could not or should not have had any role to play having regard to the particular circumstances of this case. More widely construed, Ms Patel appears to contend that general deterrence has no work to do in cases of manslaughter by means of excessive self-defence.

36. At [108] of her remarks on sentence, her Honour said this:

“However, consideration of general deterrence and the issues of retribution, denunciation and punishment are important ones given that the unlawful killing of another human requires such considerations to be borne in mind. As Adamson J said in R v Abdallah [2015] NSWSC 531 at [65]:

‘[65] …Each of us is part of a whole community. When any one of us is wrongfully killed, all of us are harmed, although the loss is felt principally by those closest to the deceased. Wrongful killing is not only a fundamental breach of the peace but also a breach of the social contract of the highest order. Institutionalised justice, which has replaced private retribution, must recognise this harm and endeavour to redress it by imposing an appropriate sentence’.”

37. In R v McDonald [2019] NSWSC 858 at [20], I recently commented as follows:

“Nor in my opinion does general deterrence loom large in the events with which I am required to deal. Even though a powerful argument can be mounted, that crimes of passion or spontaneous loss of self-control, such as here occurred, do not sit comfortably with the idea that a person might be convinced to think twice before acting if they quietly and rationally contemplated or appreciated the possible consequences of their actions, the law nevertheless insists that general deterrence continues to have a role to play. Without diverting from authoritative judicial exhortations to that effect, I am only prepared to conclude that I should sentence Mr McDonald in a way that takes account of the need for general deterrence to a limited extent. It seems to me to be an extremely remote prospect that anything will be achieved, in terms of informing or educating the wider community upon the perils of crime, by a close examination or dissection of a sentence that I impose upon this offender in the particular but spontaneous circumstances of this case.” [Emphasis added]

38. In the present case, her Honour did no more than indicate, consistently with authority, that she proposed to take account of the need for general deterrence in sentencing Ms Patel. Her Honour did not qualify or quantify the extent to which she did so, and Ms Patel’s criticism of her Honour, in the context of this ground of appeal, cannot therefore articulate a complaint in anything other than general terms. However, allowing for the possibly obvious conclusion, that general deterrence sits somewhat awkwardly with notions of excessive self-defence, given the similarities with spontaneous crimes of passion involving retribution or provocation or unexpected loss of control, her Honour was nonetheless perfectly entitled, and indeed bound, to consider general deterrence in this case. The fact that her Honour did not further elaborate upon how general deterrence should operate in this particular instance of manslaughter, beyond what she said at [108], does not mean that she fell into error. General deterrence remained an important consideration, along with retribution, denunciation and punishment. The fact that her Honour dealt compendiously with these four different concepts rather suggests that she gave general deterrence less, rather than more, weight than if it had been addressed separately.

Ground 6

39. Her Honour’s remarks on sentence include the following at [77]:

“The fundamental touchstone for sentencing in manslaughter cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which she must be sentenced to imprisonment…”

40. Ms Patel contends that this statement, taking up what was said by Gleeson CJ in R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep), indicates that her Honour has fallen into error. The full quote from Blacklidge is as follows:

“It has long been recognised that the circumstances that may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case.”

41. Her Honour then said this at [80]:

“As stated by Justice Adamson of this Court in R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79:

‘[44] The starting point for sentencing in such cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he or she must be sentenced to imprisonment. Principles of punishment, retribution and deterrence play their part. Particular regard must be had to the features referred to above relevant to the seriousness of the offence as well as any mitigating circumstances’.”

42. Ms Patel submitted that it is wrong in principle to say that the “starting point” for a person convicted of manslaughter is that he or she must be sentenced to imprisonment. That submission is undoubtedly correct. Put another way, not every case of manslaughter automatically attracts the imposition of a term of imprisonment.

43. Ms Patel complains that her Honour failed properly to have regard to the terms of s 5 of the Crimes (Sentencing Procedure) Act by adopting and misapplying the words of Adamson J referred to earlier. The thrust of that submission is that her Honour unnecessarily constrained or restricted the exercise of her sentencing discretion by failing to consider the full range of available sentencing options.

44. In my view, Ms Patel’s contention places undue and inappropriate emphasis upon Adamson J’s words in the context of the case then before her. In the present case, her Honour the sentencing judge was doing no more and no less than articulating what seems to be entirely uncontroversial: that Ms Patel was going to be sentenced to a term of imprisonment. Indeed, in this Court Ms Patel does not suggest otherwise. If Ms Patel’s submission is to have any practical force or effect, it must go as far as to demonstrate that her Honour erroneously fettered her discretion by putting other appropriate and potentially available sentencing considerations out of consideration. It is clear in the particular circumstances of this case that she did not do so.

Ground 7

45. Her Honour was referred during the sentencing proceedings to R v Todd [1982] 2 NSWLR 517 at 519-520 and the well-known reference by Street CJ in that case to a person convicted of a crime and awaiting sentence being “left in a state of uncertain suspense”. Her Honour in the present case dealt with submissions about in her remarks on sentence as follows:

“[109] The offender offered to plead guilty to manslaughter a little over 4 weeks after her arraignment in early 2015 and this offer was rejected by the Crown. That offered plea was not conditional upon an undefined statement of facts. The Crown submitted that the offender is entitled to an appropriate discount in the range of 10-15%. The defence submitted that 15% was the appropriate discount. I accept that 15% is the appropriate discount.

[110] An additional submission was made by the defence regarding delay. The argument posed was that “through no fault of her own” the offender remained unsentenced after nearly five years in custody, was tried twice, successfully appealed against her initial conviction, and has been subjected to the vagaries of the legal system “more than most”.

[111] In support of a submission that a “high degree of leniency” ought to be extended to the offender, R v Todd [1982] 2 NSWLR 517 was cited. In that case, Street CJ at 519-520 made some comments regarding the case which involved delay in sentencing due to interstate sentences being served for crimes committed across borders very close in time, and the failure by the sentencing judge in that case to take these issues into account on the question of totality. The extract quoted from Street CJ at 519-520 is dealing with considerations salient to that particular scenario that do not in any way translate to the circumstances here.

[112] The offender will have account taken of time served. There is no principled reason to extend any particular degree of leniency, simply because the offender is being sentenced five years after her crime.”

46. Ms Patel submitted that it was an error for her Honour to have dismissed the relevance of delay. She was 30 years old when she was arrested. Her future was still unknown in December 2017 when she turned 35. Ms Patel contended that more than three years passed between her first indication of a willingness to plead guilty to manslaughter and the date of her sentence. She maintained that this was a substantial period of time to be held on remand in a state of suspense.

47. Her Honour took account of Ms Patel’s offer to plead guilty at a relatively early stage and factored a discount of 15 percent into her sentencing calculations. In my opinion, Ms Patel’s offer was a tacit recognition by her of the likely best outcome for her at her trial. In the events that occurred, the wisdom of her offer was effectively vindicated by the jury. In that setting it seems to me to be uncontroversial that her Honour did not consider that some specified or notional further discount off her sentence should be applied. Ms Patel was not in a state of uncertain suspense so much as in one of optimistic anticipation. A person in Ms Patel’s particular circumstances awaiting trial and sentence would in my view have been more obviously confronted with the practical inevitability of being sentenced to a custodial penalty than a state of uncertainty during that time.

48. Her Honour fell into no error in the approach that she took to questions of delay.

Resentence

49. Ms Patel read an affidavit sworn by her on 18 June 2019 to be taken into account in the event that she was to be re-sentenced.

50. Ms Patel is currently designated as a Category 2(6.2) inmate, which entitles her to live and work outside the gaol complex, although still limited to earning gaol wages. It would seem that Ms Patel’s anticipation is that she will be successful in seeking classification as a Category 1 inmate when she has served more of her sentence, with a corresponding ability to earn up to $25 per hour.

51. Ms Patel’s major difficulties have been with access to her family, who live in India, and cultural and religious isolation, including difficulties with maintaining her vegetarian diet. These issues were more acute during the five years when she was in maximum security and have now effectively receded.

52. Ms Patel is an educated woman with no criminal history and a person of otherwise good character. She has in my view good prospects of rehabilitation and there is no call for any element of specific deterrence. General deterrence remains a matter which I have to take into account, although, as earlier adverted to, the need for it is not substantial having regard to the nature of the particular crime of manslaughter in this case. Nevertheless, punishment, retribution and denunciation remain matters that have to be taken into account.

53. The circumstances of the offending undoubtedly have some curious aspects. It is not possible to be certain about the reasons why the events in question occurred. It is clear that Ms Patel is to be sentenced upon the basis that she killed Ms Joshi by an excessive use of force in defending herself from a knife attack. By definition, Ms Patel’s conduct departed from what was a reasonable response to the circumstances as she perceived them.

54. Ms Patel herself described what occurred. The evidence that she gave at her first trial was read aloud to the jury at her second trial. A summary of the fatal confrontation between the two women includes Ms Patel’s version of what occurred.

55. Ms Patel was in Ms Joshi’s bedroom looking for her passport. She said was about to leave but saw Ms Joshi enter the bedroom holding a knife. Ms Joshi told Ms Patel to give her the papers (confirming Ms Patel’s termination) and leave the apartment. Ms Patel said that she pretended to reach for the papers inside her pocket but instead pulled her car keys out and threw them at Ms Joshi, hitting her on the shoulder. Using both her hands, Ms Patel then grabbed Ms Joshi’s right wrist.

56. A struggle then ensued between the two. Ms Patel was pushed by Ms Joshi. Ms Patel twisted Ms Joshi’s hand and removed the knife. Ms Patel gained control of the knife and held it in her left hand. She stepped back. In her examination-in-chief, Ms Patel said that she then stepped back against the wall. In cross-examination, she said that she was pushed against the wall. Either way, Ms Joshi then moved towards Ms Patel and attempted to take the knife from her left hand. Ms Patel passed the knife from her left hand behind her back to her right hand. Ms Joshi then grabbed Ms Patel’s right hand and wrist, attempting to get the knife. She pushed Ms Patel again, putting one of her hands on Ms Patel’s neck and with her other hand tried to get the knife. Ms Joshi then put both her hands around Ms Patel’s neck and started to squeeze. Ms Patel said that she then “poked” Ms Joshi in the stomach. This was an attempt, according to Ms Patel, to scare her. She denied the “poke” was an attempt to stab Ms Joshi. Nevertheless, according to Ms Patel, this “poke” caused the knife to enter Ms Joshi’s stomach. Ms Patel let go of the knife and moved away. Ms Joshi took control of the knife and moved towards Ms Patel to attack her. Ms Patel restrained her by grabbing her wrist.

57. The two then fell on the bed, with Ms Patel on top of Ms Joshi. To stop her screaming and abusing her, Ms Patel put her hand over Ms Joshi’s mouth. She kept her hand there for two minutes. The two women, struggling over the knife, then slid onto the floor. Ms Joshi hit the floor first, Ms Patel on top. Ms Patel kept her hand over Ms Joshi’s mouth and then placed it around her neck. Ms Patel commenced squeezing Ms Joshi’s neck, who then began to pull Ms Patel’s hair, slapping her ear and threatening to kill Ms Patel. The knife was still in Ms Joshi’s hand. Ms Joshi “clawed” at Ms Patel’s face. Ms Patel bit one of her fingers. Ms Patel then grabbed the knife from Ms Joshi’s hand and stabbed her once in the stomach. Ms Patel described it as a “big stab”. Ms Joshi stopped struggling. The entire incident lasted approximately 15 minutes according to Ms Patel.

58. It is apparent that Ms Patel was able to overpower Ms Joshi and to disarm her. However, consistently with the jury’s verdict, it is also clear that Ms Patel engaged in a deliberate and sustained response that resulted in the infliction of severe neck injuries and the ultimate suffocation of Ms Joshi as she was lying on the bedroom floor. At a point when Ms Joshi must have been unresponsive, Ms Patel stabbed her in the abdomen causing injuries to her liver, duodenum and vena cava. Taking all of these matters into account, it is apparent that the offence is an objectively serious example of offences of this kind.

59. Ms Patel has demonstrated no remorse for her actions. I am satisfied that she is not entitled to any benefit in this regard.

60. In accordance with my view concerning the lack of significance of the fact that Ms Joshi was killed in her own home, I do not consider that it aggravates the offence. Ms Joshi was in one sense responsible for choosing the location for what occurred. Ms Patel is not to be punished more severely for that.

61. Finally, I consider that a discount of 15 percent for Ms Patel’s offer to plead guilty is appropriate.

62. However, having regard to all of these matters, in particular my view of the objective seriousness of this offence, the sentence that I would impose is a non-parole period of 8 years and 4 months with a balance of term of 2 years and 9 months. In accordance with this Court’s practice in such circumstances, I would therefore propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

63. N ADAMS J: I too have had the advantage of reading in draft the judgment of Harrison J. I agree with his Honour’s orders for the reasons provided by his Honour. In re-sentencing the applicant, in the exercise of my independent sentencing discretion, I too would have imposed a more severe sentence than that imposed on the applicant by Lonergan J. For the reasons I have provided in RO v R [2019] NSWCCA 183 at [119] – [120], I do not consider it necessary to specify that higher sentence in circumstances where that higher sentence is not to be imposed.

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Decision last updated: 26 August 2019