R v Narayan - [2011] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v NARAYAN
[2011] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice David)
1 July 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Mrs Narayan was charged with murder and found guilty by jury of the manslaughter of Mr Narayan on the basis of provocation – the Trial Judge sentenced the respondent on the basis she had killed Mr Narayan acting under ‘extreme provocation’ – the Trial Judge sentenced the respondent to six years’ imprisonment, fixed a non-parole period of three years and suspended the sentence upon the respondent entering into a bond – the Director of Public Prosecutions (DPP) appealed against sentence – whether the sentence imposed by the Trial Judge was manifestly inadequate – whether the trial Judge erred in the application of s 32(5)(ba) and s 32A of the Criminal Law (Sentencing) Act 1988 (SA) in fixing the non-parole period – whether the Trial Judge erred in suspending the sentence.
Held (Doyle CJ, Nyland J and David J concurring): the DPP’s characterisation of the offending conduct was not accurate – the head sentence and the non-parole period were within an appropriate range – the Trial Judge’s decision to suspend the sentence reflected an assessment of the circumstances, which it was open to the Trial Judge to make – no error of principle was identified.
Permission to appeal refused.
Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba), s 32A, s 32A(1), s 32A(2)(b), s 32A(3), s 32A(3)(c) and s 38(1), referred to.
R v A, AD [2011] SASCFC 5, discussed.
R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Barnett (2009) 198 A Crim R 25, considered.

R v NARAYAN
[2011] SASCFC 61
Court of Criminal Appeal: Doyle CJ, Nyland and David JJ

DOYLE CJ: The Director of Public Prosecutions (DPP) has applied for permission to appeal against a sentence imposed on Mrs Narayan by a Judge of this Court.
Mrs Narayan was charged with the murder of her husband. After a trial, a jury found her not guilty of murder but guilty of manslaughter. The Judge sentenced Mrs Narayan on the basis that she had killed her husband acting under “extreme provocation”. The Judge sentenced her to imprisonment for six years; fixed a non-parole period of three years, and suspended the sentence upon Mrs Narayan entering into a bond. Conditions of the bond were that she be of good behaviour for three years; be under the supervision of a Community Corrections Officer for a period of two years, and undergo treatment if directed to do so by the Community Corrections Officer.
Mr Kimber SC, counsel for the DPP, submits that the sentence is manifestly inadequate. He submits also that the Judge erred in the application of s 32(5)(ba) and s 32A of the Criminal Law…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Narayan

Details

AGLC: R v Narayan [2011] SASCFC 61
Case: [2011] SASCFC 61
Decision Date: 1 July 2011

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against the sentence imposed by the Trial Judge on Mrs Narayan, who had been found guilty by a jury of the manslaughter of Mr Narayan on the basis of provocation. The Trial Judge had sentenced Mrs Narayan to six years' imprisonment, fixed a non-parole period of three years, and suspended the sentence upon her entering into a bond, having found that she had acted under 'extreme provocation'. The DPP contended that the sentence was manifestly inadequate and that the Trial Judge had erred in the application of sections 32(5)(ba) and 32A of the Criminal Law (Sentencing) Act 1988 (SA) in fixing the non-parole period and in suspending the sentence.

The central legal issues before the appellate court were whether the sentence imposed was manifestly inadequate, whether the Trial Judge had correctly applied the relevant legislative provisions concerning the mandatory minimum non-parole period, and whether the decision to suspend the sentence was legally sound. The DPP argued that the Trial Judge's assessment of the offending conduct and the subsequent sentencing, particularly the suspension of the sentence, did not adequately reflect the seriousness of the offence or the community's interest in punishment and deterrence.

The appellate court, comprising Doyle CJ, Nyland J, and David J, found that the DPP's characterisation of the offending conduct was not accurate. They held that the head sentence and the non-parole period were within an appropriate range. Regarding the suspension of the sentence, the court affirmed that the Trial Judge's decision was a permissible assessment of the circumstances, noting that the power to suspend a sentence is a broad discretion. The court acknowledged that while the seriousness of the offence and general deterrence might point towards imprisonment, Mrs Narayan's personal circumstances, genuine contrition, and good prospects of rehabilitation supported a suspended sentence. Ultimately, the court concluded that no error of principle had been identified in the Trial Judge's sentencing decision.

Orders

Orders of the court

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Background

Background to the litigation

Mr Kimber SC, counsel for the DPP, submits that the sentence is manifestly inadequate. He submits also that the Judge erred in the application of s 32(5)(ba) and s 32A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) to the circumstances of the case. These provisions provide for a mandatory minimum non-parole period (the mandatory period).Facts Mrs Narayan married Mr Narayan in Fiji in 1986. It was an arranged marriage. I assume it was arranged between the respective families. Mrs Narayan was then 22 years of age. Mr and Mrs Narayan migrated to Australia in August 1986. Mrs Narayan’s parents were practising Hindus, and were strict in their beliefs. The Hindu faith, and cultural traditions associated with it, are an important part of the background to this case. What follows is an abbreviated summary of the circumstances. It suffices for the purposes of the appeal. As best I can tell, none of the following matters are disputed. About three months after the marriage Mr Narayan began to inflict physical violence on Mrs Narayan. He also subjected her to frequent criticism. Mrs Narayan believed that a wife should submit to her husband, and should devote herself to him, to the marriage and to the family. Accordingly, Mrs Narayan accepted Mr Narayan’s behaviour. Indeed, she thought that she deserved mistreatment, because in some way she had failed to behave as she should have. By and large she suffered in silence. It was thought demeaning of a husband or of the family for a wife, with her cultural background, to raise disagreements or tensions in the broader family. However, over time Mrs Narayan did confide to some degree in some friends that she made. This pattern of behaviour continued over many years. The physical mistreatment diminished over time. In the last few years before his death, Mr Narayan behaved violently less often. The result of this was that Mrs Narayan suffered a severe loss of self esteem and of self confidence. She was deeply unhappy. Some support for her evidence came from two of her children who gave evidence, and from a family friend who gave evidence. About 5 December 2008, Mrs Narayan came to suspect Mr Narayan of having had an affair with Ms K, and to suspect that Mr Narayan was continuing to support Ms K financially. She made enquiries at a bank about his Visa card. She consulted a psychic. She confronted Mr Narayan. Mr Narayan denied the affair, but in a manner that was dismissive of Mrs Narayan’s concerns. She became increasingly anxious. On 6 December she made some further enquiries. Mr Narayan admitted having had an affair with Ms K before he married Mrs Narayan. This shocked Mrs Narayan. Mrs Narayan was deeply distressed by all this. She believed she should keep the family unit together, and be obedient to her husband. But her belief in him was shaken by his admission of an earlier affair, and by her suspicion that the affair was continuing. She was pre-occupied with her situation during that day. About 4.00 am on 7 December, she awoke and spoke to Mr Narayan about Ms K. He did not admit having an affair with her, but gave Mrs Narayan the password to his email account. Mrs Narayan then read emails that confirmed to her that Mr Narayan was having an affair with Ms K and that he intended to leave Mrs Narayan.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In his written submissions, Mr Kimber argues that the non-parole period is “more consistent with the fixing of a non-parole period using past principles rather than a proper application of s 32A”. That is not a relevant comparison. He also argues that such a non-parole period would not have been appropriate before s 32A was enacted. I disagree. But again I am not persuaded that that is a relevant point.Decision to suspend At para [26], I summarised the matters referred to by the Judge as supporting a decision to suspend the sentence. I agree that they were all relevant factors, with the exception that I consider that the needs of Mrs Narayan’s immediate family were not entitled to any significant weight. In criticising the Judge’s submission, Mr Kimber relied upon the characterisation of the offending conduct that I outlined earlier in these reasons. For the reasons that I gave there, I do not agree that this is an adequate characterisation of the circumstances of the offending. The power to suspend a sentence of imprisonment is conferred by s 38(1) of the Act. The Court may suspend a sentence of imprisonment if it considers that “good reasons exist for doing so”. This is a broad discretion, and there is not much that one can usefully say about it in the abstract. In a number of decisions Judges have accepted that suspension may be appropriate in the case of an offender who faces imprisonment for the first time, if that person is likely to benefit from an exercise of the discretion. Mrs Narayan meets those criteria. The power to suspend has been described in other cases as appropriate when an offender should be given a chance to avoid imprisonment by leading a law abiding life. Normally this will be an offender who has not previously been imprisoned. I agree with the Judge that the circumstances identified by him provided substantial support for a decision to suspend the sentence. But a sentencing court must bear in mind the community interest in marking its disapproval of conduct by a sentence of imprisonment, and the community’s interest in preventing crime by deterring others from offending. The seriousness of the offence is of particular relevance in this context. For reasons that are obvious, the more serious the offence the less likely a court is to conclude that there is good reason to suspend a sentence of imprisonment. At the risk of over-simplifying things, it might be said that the community interest in punishment, prevention and deterrence called for a sentence of imprisonment, and the Judge imposed one. Mrs Narayan’s personal circumstances, her genuine contrition and her very good prospects of rehabilitation, supported a suspended sentence. The seriousness of the offence, and the consideration of general deterrence, tended to point the other way. The decision facing the Judge in this case was a very difficult one. The very detailed sentencing reasons indicate the care that the Judge took. The question of suspending the sentence is one on which minds will differ. That is hardly surprising, when the case is a difficult one.

Ratio Decidendi

Legal Principle Established

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