R v Mehta

[2009] NSWSC 814

CITATION:	R v MEHTA [2009] NSWSC 814
HEARING DATE(S):	5 August 2009
JUDGMENT DATE :	14 August 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
DECISION:	Prisoner sentenced.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Murder - Two killings for different motives - Whether second killing of child in worst case category
CATEGORY:	Sentence
PARTIES:	REGINA - Crown Sanjay MEHTA - Offender
FILE NUMBER(S):	SC 2009/4093
COUNSEL:	C Maxwell QC - Crown R Webb - Offender
SOLICITORS:	Director of Public Prosecutions - Crown Frontier Law Group - Offender
LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MICHAEL GROVE J

14 August 2009

2009/4093 REGINA v Sanjay MEHTA

SENTENCE

1 HIS HONOUR: Sanjay Mehta, you have been convicted and it is my duty to impose sentence upon you for the two murders which you have committed. You are before this Court after offering pleas of guilty to those charges before a magistrate in the Local Court.

2 You have, as is your entitlement, chosen not to give evidence and the resources available to me for the purpose of findings about how the crimes took place consist only of an agreed statement of facts and the transcript of an interview by police with a former cellmate of yours during which he related statements which you had made to him concerning them. There are obvious absences of detail in my knowledge concerning the actual circumstances of the commission of the offences, however from what is available the following emerges.

3 From a marriage to Kamakshi Mehta you had a son and a daughter. The marriage was terminated by divorce and your wife returned to India from whence you, she and the children had originally come. You acquired Australian citizenship. After your former wife’s return to India the children remained with you in Sydney and as at May 2008 they were aged fourteen and nine years respectively.

4 In about mid 2006 you were introduced to Jyoti Sharma who was also divorced and she had custody of her young daughter Ujala Dinesh. A number of contacts between you and Ms Sharma resulted in her moving to Australia with her daughter in May 2007 in which month a marriage took place. Thereafter Ms Sharma now married to you, applied for permanent Australian residency on behalf of herself and her daughter. It will be convenient, implying no disrespect, to refer to them as has been done in the exhibited material, by their forenames. The family unit which had been formed, including now three children, resided in a home owned by you at Blacktown.

5 Jyoti had a younger sister, Poonam Sharma, who resided at Parramatta with her husband Anthony Venn. The sisters were close and they made daily telephone contact and frequently visited each other.

6 There has been read to the Court a victim impact statement by Ms Sharma describing in moving terms the effect of the killings upon her and the family of the victims. In accordance with the statutory obligation, receipt of the statement is acknowledged. I also record a recognition of those effects as she has stated but I must bear in mind the existence of a limit whereby matters adverse to you, the offender, may only be taken into account if appropriately evidenced and proved to the necessary standard.

7 It is significant to note that the terms of her visa did not permit Jyoti to undertake paid employment or to receive social security benefits. Therefore, although she was educated to a tertiary level, she was financially dependent on you.

8 The marriage did not show promise of success. On 28 January 2008 Jyoti and Ujala returned to Sydney after a short trip to India. Upon arrival they were met by you, your two children, Poonam Sharma and her husband. An argument developed at the airport. Thereafter the group proceeded to the house at Blacktown where Jyoti discovered that you had taken possession of some of her documentation. You refused to return it but you did so after police were called and they attended at the house.

9 Jyoti and Ujala then left and stayed the night at Parramatta with their relatives. The next day Jyoti went to the Jessie Street Domestic Violence Service at Doonside. She reported to them that you had verbally abused her and threatened to kill her and her daughter. Despite advice, she did not report this to police. However, her inability to access social security and the circumstance that Ujala could not be accommodated in a women’s shelter led to them returning to the house at Blacktown on 4 February 2008. Following that return, Jyoti told her sister a number of times that you had, among other statements, threatened to destroy her if she left you. At about 9.30 pm on Saturday 3 May 2008 you delivered Jyoti and Ujala to Parramatta where they again stayed overnight. Whilst she was there she told her sister that you had recently been physically violent to her but she did not elaborate upon this to any degree. She also said that you had been threatening to withdraw your sponsorship which would result in her being forcibly returned to India by the authorities.

10 At about 6 pm on Sunday 4 May you collected Jyoti from Parramatta and returned with her to Blacktown. At about 8 pm Ujala also was brought to Blacktown by her aunt and uncle. At that time you had left the house and Jyoti was there with your two children. She asked her sister and brother-in-law not to stay as you had been complaining about the amount of time that she was spending with them.

11 At about 8 am on the following morning, 5 May, Jyoti spoke to her sister on the telephone. She said that you and she had argued through the night until about 4 am and that subjects of controversy were her visa status and the amount of time that she was spending with her sister.

12 I am satisfied to the necessary standard that after 8 am and before 9 pm on that day, Monday 5 May, Jyoti died as a result of manual strangulation by you. I am also satisfied that, having regard to the content of your reported threats and matters to which I will now turn, that at that time you intended to kill her.

13 Although the pathologist who conducted the autopsy on Jyoti detected a fracture of the hyoid bone, which he could not exclude as having occurred during a fall when you attempted to dispose of the body, that injury was consistent with manual strangulation.

14 In September 2008 whilst in custody, you conversed with a prisoner with whom you were sharing a cell. You claimed that at about 6 pm on the critical day you had a fight, apparently verbal, with Jyoti after which you tried to make up with her by engaging in sexual intercourse, but the fight resumed. I am unable to conclude whether those details are entirely accurate but I am satisfied of the accuracy of these further descriptions which self evidently were not designed to mask your culpability. It is the experience of courts that statements against the interest of the speaker are likely to be true.

15 After the resumption of the “fight”, this description by the cellmate continued:

“And then he hit her, he told me straddled her body and then slapped her across the face with his right hand and grabbed hold of her face with his, her neck with his left hand and began choking her. He said at that time she screamed and the daughter, being his step-daughter then entered the room and he told her to get out. And then he then continued putting force to his wife’s neck and eventually she became limp and froth was, like spittle which turned into froth was coming from her mouth and some blood was coming from her nose. He said he then pushed her, pulled the doona over her, or the bedspread as he referred it to and then he went and, and dealt with the daughter.”

16 I have not overlooked other statements which you are described as having made such as, again in conversation with your cellmate:

“And there was some problems with his phone, he wasn’t allowed to ring his home, so he was up in his cell, not crying but he was upset. And I’d asked him what was wrong and he informed me that his son was being used as a Crown witness against him and that then opened the door for him to start telling more because he was very upset. And I asked him, why was his son a Crown witness? And then he explained to me that his, that his son was at the home when his wife was last seen and the police were alleging that Sanjay had murdered his wife that he, then I asked him straight out, I said, Well you know yourself if you did the crime, you know what the procedures will be. Did you or did you not do it? And he said, Yeah, he said, But I didn’t mean to. But he did admit that he killed his wife. And then within a few days after that the stories got more involved and he started revealing more.”

and

“I said, Well if you’re guilty you’ve gotta ask the courts for, for clemency, for leniency. If you have a reasonable cause as to why you should get leniency. And he said, I know that I’m guilty because of what I done, but I didn’t mean to do it.”

17 I reject these latter statements about not “meaning to do it” as establishing any real possibility that you harboured an intention other than to kill Jyoti. It is an agreed fact that you gave the following version to the cellmate, namely that Jyoti wanted to go back to India and you were concerned that if you divorced you may lose half of your assets and said words to the effect of “I thought I was going to lose everything that I had worked for because that slut wanted to go back to India”.

18 Whilst that statement may be directly relevant to your motive it is an inference which I draw that you appreciated that an attack on Jyoti which was less than fatal would not achieve the asset protection which that statement expressed as having been in contemplation.

19 I turn to the murder of Ujala. At the time you killed her she was aged nine years. I have very little detail, in fact none, as to your precise acts in causing her death but, following one of the descriptions above quoted in which you gave to the cellmate informing him that you had “dealt with the daughter” he said that you continued:

“But he did not go into detail as to what he’d done with the daughter, as I believe that he was more scared admitting about the, the daughter’s death than he was about the wife’s death.”

20 Nevertheless there were remarks attributed to you by the cellmate which reveal your chilling callousness in respect to taking the life of this child. Again I quote from the interview with your former cellmate:

“And then he said then he went out and he, he looked into, words, I forget the exact words, he looked into or something like that into the daughter to see what the daughter was doing, but he didn’t turn around and say I went in and killed her, didn’t say nothing like that. He goes I went and, and looked into the daughter. And then I said, What are you talking’ about? And he said, Well she wasn’t my blood anyway. And that was it, exact words, she wasn’t my blood anyway. And then I took that to mean what he, that he’d turned around and killed her, but I didn’t want to keep on pushing that issue. Because I thought it might scare him off, because he didn’t like talking about the daughter at all, because I believe that he was scared, terrified of what could happen in gaol if he admitted to doing anything to the daughter.”

21 I am satisfied beyond reasonable doubt that Ujala died as a result of some act or acts by you, the precise detail of which the evidence does not enable me to determine. I am satisfied that your motive was to extinguish the possibility of her reporting to anyone what she had seen you do to her mother and that you harboured an intention to prevent such possibility by killing her.

22 Certainly on that Monday and within the span of time which I have mentioned and probably in the evening, you placed the bodies of your two victims in the boot of your car. Obviously, that was done at Blacktown. Diligent investigation by police demonstrated that at 9.11 pm on that evening 5 May your mobile phone records show that you were in the vicinity of Katoomba.

23 After you had placed the bodies of your victims in the boot of your car you had proceeded to the Blue Mountains. You took your own two children on this journey but they were unaware of the dreadful nature of the cargo that you had placed in the car. Upon arrival at the Echo Point area your children alighted from the car and went for a walk. You were familiar with this area as a result of some earlier employment servicing parking meters at that location. In the absence of your children, you cast the bodies of your wife and her young daughter over the cliff face and into the rugged bushland below.

24 It was not until 1 June 2008 that two bushwalkers came across the remains of the deceased. Retrieval of these and subsequent testing confirmed their identities.

25 Jyoti’s sister had become concerned about her inability to make contact on the afternoon of 5 May. At about 10.30pm, by which time you had returned from Katoomba, you answered the telephone and had the gall to ask Poonam Sharma whereabouts she had hidden Jyoti. You claimed that she had been missing since 8pm and when asked whether, if that were the case, you had contacted police, you said that it was not necessary.

26 Dissatisfied with your response Ms Sharma and her husband set off to come to Blacktown and on the way they reported their concerns to police. Police arranged to meet them at your house. Upon arrival it was discovered that none of Jyoti’s clothing appeared to be missing and her handbag and mobile phone were still in the house. As a consequence police instituted missing persons enquiries but of course these were bound to be fruitless.

27 Thereafter you engaged in a series of deceptions. Interviewed by police you claimed that you enjoyed a loving relationship with Jyoti on your part although you had a suspicion about her fidelity. Your claims in these regards were deliberately false. In the span between the commission of the murders by you and the finding of the bodies you maintained the pretence that you were concerned about your supposedly missing wife and stepdaughter. You had pressed your son into corroborating some of the falsehoods which you were advancing particularly in relation to your movements. After the discovery of the bodies, your son confessed that he had sought to mislead the police at your insistence.

28 You are forty three years of age now and have been in custody since your arrest on 1 June 2008.

29 Your criminal history includes a conviction at Blacktown Local Court on 4 August 2002 for assault occasioning actual bodily harm. This is a matter of some significance. The recorded facts leading to that conviction were that, late at night, an argument took place between you and your first wife Kamakshi Mehta. As she came to be seated on a lounge chair, you are described as grabbing her and biting her on the left cheek and then grabbing her with both hands around the neck and yelling out “I kill you”.

30 You have engaged in regular gainful employment although I observe that you, unsuccessfully, sought an employer’s confirmation of an untrue statement by you to police about your whereabouts on Tuesday 6 May. You had in fact returned to the Katoomba area on the morning of that day. It is not disputed that your pleas of guilty were made at the earliest appropriate opportunity, following responsible steps by your legal advisers in obtaining expert opinion concerning possible issues of mental responsibility. The expert opinion did not support your being able to rely on any such issue. Obviously there is what is conventionally called utilitarian value in your plea in the saving to the community of the time and cost of a trial and the saving of witnesses from the ordeal of testifying.

31 Pleas of guilty are also capable of constituting evidence of remorse or contrition. I am not satisfied that this is the case. Apart from the unaccepted statements to your cellmate about an absence of intention there is nothing in the evidence to demonstrate that you regret your crimes let alone harbour remorse or contrition for them. Of course, as Dr Allnutt remarked, the charges and your incarceration were significant stressors and when he saw you you had fears for your safety in gaol, but these are matters of quite different quality from any form of repentance.

32 In your first consultation with Dr Allnutt you expressed to him no feeling of remorse. Neither did you do so on the second occasion. Indeed your self centred outlook was discernible in your complaint to him on the first occasion that you had had limited contact with your children because of the charges and on the second occasion that you were upset because “the police had taken his kids away”.

33 In submissions on your behalf attention was directed to Dr Allnutt’s opinion when he stated:

“At the time that I saw him your client was manifesting symptoms consistent with a mild depressive disorder characterised by a depressed mood with impairments in sleep appetite, energy, concentration, motivation and ambivalence in decision making”.

The doctor’s visit had taken place on 5 October 2008. On his second visit on 17 December 2008 Dr Allnutt in fact asked you why you killed your wife and you said that you didn’t know why but attributed it to depression and frustration which you felt at the time. Such assertions are in stark contrast with your statement to your cellmate which I have already recounted when you said in effect that you wanted to stop her acquiring any of your property in the event of divorce.

34 Dr Allnutt, as quoted, had noted a mild depressive disorder when he saw you on 5 October. He expressed no opinion whether it would have been likely to be present in the previous May. I am not satisfied that your culpability is reduced because you were at the time of killing afflicted by such a disorder.

35 It was submitted that the murder of Jyoti had been carried out in circumstances of extreme domestic acrimony and that your loss of control in such circumstances would contra-indicate that that crime fell into the worst category. The Crown has expressly accepted that, if you had killed Jyoti alone, it would not submit that such a killing would have been so classified.

36 As was recognized by your counsel however, the issue insofar as it concerns murdering the nine year old child Ujala is, as he put it, more problematic. It was submitted that you carried out this second killing in circumstances of some panic and emotional confusion but I was not directed, nor can I identify any evidence, which is demonstrative of such circumstances. As I have already observed I know nothing of the details of how you took the life of this little girl, only that you did so and disposed of her body in a most callous fashion. You killed her after she had seen you in the act of strangling her mother. In whatever way you killed this child, it was pitiless conduct and your culpability for so doing is extreme.

37 For all I know you may have killed the child in a deliberate and cold-blooded manner, although I stress that I am not in a position to find what the precise circumstances were, but likewise I do not find that the evidence shows that you were affected at the time by panic or emotional confusion.

38 It was pointed out that the second killing occurred very close in time after the first. I am of course aware that, if appropriate, sentences can take into account, where more than one offence by a perpetrator occurs within a limited time, they may be treated for sentence assessment as part of a single outbreak of criminality. This is not such a case. Jyoti was killed for what might be called a financial motive and it was an entirely separate subsequently formed motive, namely to silence a possible witness to murder, which inspired you to kill Ujala. I find nothing mitigatory in the circumstance of the closeness in time in which the two murders were committed.

39 I do not ignore counsel’s reference to rehabilitation. I have no information which I can utilize to assess what prospects of your rehabilitation might exist. Dr Allnutt made no reference to this nor is there reference elsewhere in the evidence. Jyoti died from manual strangulation, and although I do not know how Ujala’s death was achieved, in the past, you had attacked your first wife by grasping her about the neck, and those circumstances do not combine to base a confident prediction that nothing of the sort as befell your two wives is likely to happen again.

40 Whilst I recognize your right not to give evidence and that I cannot and do not draw any adverse inference against you because of your election, I cannot draw inferences in your favour in the absence of any material from which to draw such an inference.

41 It is the Crown submission that I should assess the murder of Ujala as falling into the worst category of that crime and that I should therefore impose upon you a sentence of imprisonment for life. The imposition of such a sentence in this State is not accompanied by a power to set a non-parole period or an eligibility date for consideration of possible release to parole.

42 Parliament has legislated that where a level of culpability of a murderer is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met by a life sentence, it is to be imposed. I pay particular attention to the condition introduced by that legislation by the use of the word “only”.

43 These remarks are primarily directed at you, the offender, and I do not regard it as an occasion for a dissertation upon legal technicality but I should record that I am conscious of the discretion vested in me by the same statute to impose a sentence for a specified term despite the language of the legislation just mentioned.

44 In succinct terms the Crown has submitted that you committed two brutal murders. On your own account to your former cellmate you strangled Jyoti and because you became aware that Ujala had seen you do this you proceeded to kill her in order to try and ensure that you would not be caught for the murder which she had seen you commit.

45 I uphold that submission. I find that the murder of Ujala was of such heinousness by reason of the circumstances in which you committed it, which I have canvassed in these remarks, that killing her was a case of murder to be classified within the worst case category of that crime.

46 I find no subjective features which would, in your case, displace the need for a life sentence. You have made no expression of remorse. There is no evidence pointing to favourable prospect of rehabilitation. Your prior conviction conveys nothing in your favour and, to say the least, the facts which led to it are disturbing in the similarity of engagement by you in manual attack by grasping the neck.

47 I am satisfied that your pleas of guilty manifested an appreciation of the inevitability of conviction. As counsel conceded, the Crown case was in many ways an overwhelming one. That this was so has been a consequence of painstaking and competent work by investigating police and it is appropriate to record a commendation of all those whose efforts contributed.

48 In this instance I am unpersuaded that the pleas of guilty, although of utilitarian value, operate to render a maximum sentence inappropriate and I am satisfied that the murder of the innocent child Ujala who stumbled upon you committing the murder of her mother was so serious as not to require reduction of an indeterminate sentence to a specific term of years.

49 The level of your culpability for the killing of Ujala is in my finding so extreme that the community interest in retribution, punishment, deterrence and community protection can only be met by imposition of the maximum sentence. In my conclusions about those matters particularly concerning the lastmentioned element, I have given account to the disturbing aspects of similarity in the way you attacked your first and second wives. Obviously, I do not know and do not find that Ujala was herself killed in that way but the attitude inherent in your remark that the child whom you murdered was not of your blood is a factor to be taken into account in the overall assessment of your future dangerousness.

50 Because of its extreme seriousness, particular attention has been paid in these remarks to the murder of Ujala. The high level of seriousness of your murder of Jyoti should not be overlooked. The description by you to your cellmate of that killing portrayed unrestrained cruelty which you visited upon an apparently defenceless woman.

51 Having regard to the enveloping sentence which I intend to impose for the killing of Ujala, I will not set a non-parole period in respect of the sentence for the killing of Jyoti and an order for cumulation would be otiose.

52 Sanjay Mehta, for the murder of Jyoti Mehta, you are sentenced to imprisonment for thirty years commencing on 1 June 2008.

53 For the murder of Ujala Dinesh you are sentenced to life imprisonment commencing on the same date 1 June 2008.

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