R v Raju

[2007] NSWSC 1418

CITATION:	R v RAJU [2007] NSWSC 1418
HEARING DATE(S):	24/10/07, 25/10/07, 26/10/07, 29/10/07, 30/10/07, 31/10/07, 1/11/07, 2/11/07, 5/11/07, 6/11/07, 7/11/07, 8/11/07, 12/11/07, 13/11/07, 14/11/07, 6/12/07
JUDGMENT DATE :	14 December 2007
JUDGMENT OF:	Bell J at 1
DECISION:	Sentenced to a non-parole period of 16 years to date from 17 November 2004. The first date on which offender is eligible for consideration of release on parole is 16 November 2020. The balance of the term of the sentence is five years. The sentence will expire on 16 November 2025
CATCHWORDS:	SENTENCE - murder - domestic killing - intent to kill
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Previtera (1997) 94 A Crim R 76
PARTIES:	Regina Kaniappa RAJU (Offender)
FILE NUMBER(S):	SC 2005/0000236501
COUNSEL:	M Grogan (Crown) J Watts (Offender)
SOLICITORS:	S Kavanagh SE O'Connor

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

BELL J

Friday 14 December 2007

2005/0000236501 R v Kaniappa RAJU

Paragraphs [43] - [50] are the subject of a non-publication order

JUDGMENT

1 BELL J: On 14 November 2007 the offender was found guilty of the murder of his de facto wife, Aruna Verma by the verdict of a jury. I entered a conviction upon that verdict.

2 The manner by which the deceased was killed is not known and her body has not been found. The Crown case at trial was substantially dependent on circumstantial evidence. It is my task to sentence the offender upon facts that I find established by the evidence given at the trial and that are consistent with the verdict of the jury. Any factor aggravating the offence must be established beyond reasonable doubt, while factors mitigating the offence need only be established upon the balance of probabilities.

3 The offender is a Fijian Indian, as was the deceased. Their relationship commenced when they were living in Fiji. Subsequently they came to Australia and settled in a house in Port Kembla. They had four daughters who at the time of these events were aged between three and eight years. The relationship between the offender and the deceased was a troubled one, but each was very much attached to the children.

4 The offender had business interests in the Solomon Islands and from time to time he travelled there in connection with business. While in the Solomon Islands the offender formed a relationship with a woman named Mary Vousa by whom he had a son, who was an infant at the time of these events. Mary Vousa moved to Australia in order to be with the offender. She took up residence with their son in Queensland. Between January and April 2002 the offender was living with Mary Vousa in Queensland and the deceased was living in Port Kembla with their four daughters.

5 The deceased formed an attachment to a man named Chinna, a cousin of the offender. The offender was jealous of the deceased’s attachment to Chinna and this was a source of friction between them.

6 In late April 2002 the offender travelled to Fiji on business. He returned to Sydney on 4 May. He telephoned the Port Kembla home from the airport and learned that the deceased was not at home. Chinna was being detained in the Villawood Detention Centre and the offender believed that the deceased was likely to have visited him there. He drove to Villawood and found the deceased at the Detention Centre. They travelled home together and during the course of the trip he assaulted her.

7 In the early evening the deceased and the offender went to the Church, which was located across the road from their home. The deceased’s mobile telephone rang while she was inside the Church and she got up and left. The offender followed her outside and there was a physical confrontation during which took her telephone. The deceased called out for help and members of the congregation came to her assistance and the offender walked off. The police were called and attended at the family home a little later that evening.

8 The offender was not at home when the police arrived. The deceased had noticeable bruising under her right eye. She told the police that as they were driving home on Heathcote road the offender started to rave and that he had wanted her to confess to him about having another boyfriend. He had given her backhander, which connected with the right side of her face and he and forced her head down into his lap. After they got home he said he wanted her to go with him to the beach so they could talk. She wanted to get away from him and so she had gone to the Church. She gave an account of the assault in the Church car park.

9 The offender returned late that night. The deceased walked to the police station, arriving around 11.00pm. She had left home in a hurry, wearing socks as her only footwear. She told the police that the offender had come back and that she had got scared and run outside. She was concerned about the children. The police accompanied her back to the home and found that the offender, the children and their nanny, Georgina, were gone.

10 Sergeant Kierse spoke with the offender by telephone in the early hours of the following morning. The offender was rambling and saying words to the effect, “she is crazy, she needs to confess all of her sins to you”.

11 The offender drove the children to Mary Vousa’s home in Brisbane.

12 Over the next two days there was telephone contact between the deceased and the offender. Early on the morning of 7 May the offender returned the children to the Port Kembla home. An interim apprehended violence order had been obtained by the police for the protection of the deceased and the offender did not remain at the Port Kembla home. He returned to Mary Vousa’s place in Brisbane.

13 On 6 May the deceased made contact with Kitty Waddell, the AVO Support Officer working at the Wollongong Women’s Centre. She explained her circumstances and expressed concern about losing the children. Ms Waddell made arrangements for her to obtain legal advice. She was also seen by Freda Botica, a counsellor at the Centre. Ms Botica said that the deceased was on edge and in a pretty distraught state. They discussed alternative accommodation, but the deceased refused assistance. The deceased attended a further interview with Ms Botica during which she expressed concern about her children being taken away from her. She was also worried that the authorities had come to learn that she was working in breach of the conditions of her visa. She feared that she would end up in a refugee camp. She appeared very fragile and upset.

14 The deceased took the four children and went to stay with her sister, Anjini, on the Central Coast. There was much telephone contact between the deceased and the offender over the next few days. On Sunday 12 May the offender returned to New South Wales and collected the deceased and the children and they all returned to the Port Kembla home.

15 The relationship between the offender and the deceased continued to be troubled.

16 On Monday 13 May, the day after their return the deceased attended at the Women’s Centre early in the morning. She told Ms Stylianou that she was afraid of her husband and they discussed alternative accommodation. Ms Stylianou made inquiries with a number of refuges in the Wollongong area, but was not able to find any accommodation for the deceased at that time. The deceased gave Ms Stylianou her passport and the children’s passports, asking that Ms Stylianou keep them in a safe place because she feared that her husband was going to take the girls. The deceased returned to the Centre the following day, spending most of the day there.

17 On 15 May the deceased and the offender attended the Port Kembla Local Court in connection with the application for the apprehended violence order. Senior Constable Brown, the Domestic Violence Liaison Officer at Port Kembla, spoke with the two of them at the Court complex. The offender told Constable Brown that he was returning to Queensland and that there was no need to proceed with the application. The deceased said that she wanted to drop the application. Constable Brown noted that she sat with her head down and her hands clenched.

18 The offender had obtained some casual employment. He was at work on 30 and 31 May. On one of those days Jennifer Grover, who was working with the Australian Red Cross, had a telephone discussion with the deceased. Ms Grover explained the Red Cross Asylum Seekers Scheme to her saying that she would qualify for assistance. Ms Grover arranged to meet the deceased at the offices of the Red Cross in Sydney at 12.30pm on 3 June.

19 On Friday 31 May the deceased telephoned Ms Stylianou and told her that she needed to collect the children’s passports. She arranged to collect them from Ms Stylianou on Monday 3 June.

20 The deceased telephoned her Anjini on 31 May and they arranged that Anjini would meet her and the children and accompany them to the Red Cross. The deceased told Anjini that there was “a light at the end of the tunnel for her”. In a subsequent call, Anjini and the deceased arranged to meet at the country trains platform at Central Station at 11.00 or 11.30am on Monday 2 June after the deceased had picked up the passports from Ms Stylianou in Wollongong.

21 On the morning of Sunday 2 June the offender got hold of the deceased’s mobile phone and accessed the recently dialled numbers stored in it. At 8.12am he dialled the number of a refuge and at 8.13am he dialled the number of the Red Cross. There was some confrontation between the deceased and the offender that morning after 8.13am and before the offender left the home to take the children to Sunday school. Georgina heard the deceased call out. A neighbour heard yelling come from the direction of the Raju family home.

22 The deceased telephoned Anjini after the offender had gone. She told Anjini that he had taken the children to Sunday school. She said that he had learned that she was going to the Red Cross on Monday and he had figured out that the Red Cross was offering her assistance. She said that he had threatened that, “you will take my kids to Red Cross over my dead body” (T 637.58). The telephone call ended at 9.19am. No person has seen or heard from the deceased since that time.

23 The offender took the three older children to the Salvation Army Sunday school in Birelli Street Wollongong on the morning of 2 June. He left the house sometime after 8.30am. The trip would have taken something of the order of 10 to 15 minutes. The children were there on time for the class, which began at 9.00am. The offender returned to collect them at around 10.00am. He told the children that he had been to church while they were at Sunday school. In evidence he said that he had gone for a drive and sat listening to music in the car before returning to collect the children.

24 The offender and the children returned home. On the way he stopped at a public telephone and called Mary Vousa. When he and the children entered the house the deceased was not there. Her clothes, her watch, her jewellery and handbag were where she had left them. Her mobile telephone and her wallet were the only things that were missing. The offender left the eldest girl in charge of the younger two, telling her that he was going to go and look for their mother. He returned after a time. By this time Georgina and the youngest child had come back from church. The offender drove them all to McDonalds to get some lunch. After they returned he again went out by himself, again saying that he was going to look for the deceased. He made a further telephone call to Mary Vousa.

25 The offender’s evidence was that he had driven around Port Kembla looking for his wife on each occasion. Georgina had told him that the deceased had taken her mobile phone. The jury rejected the offender’s evidence. One telling circumstance is that during the time he claimed to be looking for the deceased he did not once attempt to ring her on her mobile telephone.

26 The offender told Georgina to pack the children’s clothes. Around 2.40pm on the afternoon of 2 June he drove the children and Georgina to Mary Vousa’s home in Brisbane. He gave his eldest daughter the deceased’s jewellery.

27 On arrival in Queensland the offender made immediate arrangements to travel to the Solomon Islands, purchasing a one-way ticket. Anjini telephoned him on the afternoon of 3 June looking for the deceased who had failed to meet her at Central station. The offender told Anjini that the deceased had a new job and that he would get her to telephone her. This was a patent lie. The offender left Australia the following day leaving the children in Mary Vousa’s care.

28 The evidence that the deceased died on 2 June 2002 was overwhelming. The police carried out extensive inquiries with government agencies, health care providers and financial institutions. Inquiries were made concerning passenger movements in and out of Australia. There has been no trace of the deceased since her telephone call to Anjini on the morning of 2 June.

29 Gerby Kalavasiri gave evidence by video link from the Solomon Islands. He was working in July 2002 in the office attached to the Hot Bread Shop in Honiara. The offender, who knew Mr Kalasaviri’s employer, called to the office on occasions and made telephone calls to Australia. The second time this occurred the offender complained to Mr Kalavasiri that he had not been able to speak to his children. He thought that they must have told their Aunt that they had spoken with him on the telephone the previous day and she had disconnected the phone. Mr Kalavasiri asked him what had happened. The offender told him that his wife had an affair with his nephew. He told Mr Kalavasiri that he had taken his children to the church and left them there and returned home and within 30 minutes that, “Aruna is missing in action”. Mr Kalavasiri queried him saying, “what, what do you mean you killed her?” to which the offender said, “yes”. He said that the body had been buried somewhere in mountains near Wollongong.

30 Consistently with the jury’s verdict, I find that after dropping the children at Sunday school, the offender returned to the family home and killed the deceased. At the time of doing the act causing death it was his intention to kill her. The realisation that she was preparing to leave home and take the children from him had angered him and led to the confrontation but he did not give into his anger by a violent response at the time. He knew that Georgina would be taking the youngest child to church that morning and that the deceased would be in the home alone. He killed the deceased because he did not intend to allow her to take his children from him and in circumstances in which he felt betrayed by her relationship with Chinna. The offender disposed of the deceased’s body either by himself or with the assistance of others in the course of the morning or early afternoon of 2 June.

31 The Court received victim impact statements prepared by Anjini Rhodes and by the offender’s three eldest daughters. Anjini Rhodes read her statement at the sentence hearing. Her husband, Lance, read the statements of the children.

32 Anjini and Lance Rhodes have assumed responsibility for raising the four girls since collecting them from Mary Vousa, shortly after the death of the deceased. At the time of these events they had been married for five years and had plans of having a family. Overnight they became parents to the four girls and as the result have abandoned the idea of having children of their own. They are a most impressive couple.

33 Anjini, who was very close to Aruna, spoke movingly of how she had to put her own grief to one side in order to comfort her dead sister’s children. The distress for Anjini has been made more palpable by the fact that Aruna’s body has never been found and there has been no funeral.

34 The girls write of how much they miss their mother and think about her.

35 The Court extends its sympathy to Anjini and to Sami Wati, Aruna Verma’s mother and to the children. This crime has had a devasting impact on the children who have lost both their parents because of it.

36 I approach the reception of the victim impact statements consistently with the principles explained by Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76.

37 The maximum sentence for the offence of murder is imprisonment for life. It was not submitted, and I do not find, that this offence calls for the imposition of the maximum sentence.

38 The offender has a criminal record in this State and overseas. On 24 January 2002 he appeared before the Port Kembla Local Court charged with assaulting the deceased. He was released on a bond to be of good behaviour for 18 months, conditioned that he not intimidate, threaten, or assault Aruna Verma. The offence constituted a breach of the bond.

39 The offender has a record of convictions in the Solomon Islands for offences that post-date this offence involving the making of a false report to the police and intimidation. He has convictions in Fiji dating back to 1978, when he was convicted before the Court at Lautoka of burglary and larceny, for which he was sentenced to six months imprisonment. He was convicted at the Lautoka Court in September 1980 of assault occasioning actual bodily harm for which offence he was sentenced to a suspended term of imprisonment. In 1981 he was convicted of four counts of larceny for which he was sentenced to terms of imprisonment, which were suspended.

40 A report prepared by Ms Robilliard, a psychologist, was tendered at the sentence hearing. It contains details concerning the offender’s background, to which I will briefly refer. He is aged 47 years. He grew up in a village community in Fiji surrounded by an extensive extended family network. He is married to Mary Poulson and she and their four-year-old son are living in Honiara. The offender had a relationship with a woman named Rebecca between 1989 and 1992 and there are two children of this union.

41 The offender first met the deceased in 1991 in Fiji. Their relationship commenced in 1993. Their first daughter was born in 1994 and the youngest was born in 1998.

42 The offender reports no medical or psychiatric history. He has experienced symptoms of depression following his conviction. He does not have a history of addiction to drugs or alcohol. Psychological testing places him on the boundary between below and average on a standard measure of intelligence.

43 [paragraph 43 is the subject of a non-publication order].

44 [paragraph 44 is the subject of a non-publication order].

45 [paragraph 45 is the subject of a non-publication order].

46 [paragraph 46 is the subject of a non-publication order].

47 [paragraph 47 is the subject of a non-publication order].

48 [paragraph 48 is the subject of a non-publication order].

49 [paragraph 49 is the subject of a non-publication order].

50 [paragraph 50 is the subject of a non-publication order].

51 The offender was extradited to New South Wales from the Solomon Islands. He has been in custody in this jurisdiction in relation to this offence since 9 February 2005. Prior to that he was in custody in the Solomon Islands from 17 November 2004 pending extradition. The sentence will date from the latter date.

52 None of the aggravating factors to which s 21A of the Sentencing Procedure Act 1999 applies save (as I have noted) as I have noted that he was subject to a bond at the time of the offence.

53 Given the length of the non-parole period which must be imposed having regard to the seriousness of this offence there is limited utility in assessing the offender’s likelihood of re-offending and his prospects of rehabilitation. In my opinion he is unlikely to re-offend by the commission of an offence of violence. Taking into account his age I consider that his prospects of rehabilitation are satisfactory.

54 I do not consider that there are special circumstances that justify a departure from the statutory proportion between the non-parole period and the overall sentence.

55 Kaniappa Raju for the murder of Aruna Verma I sentence you to a non-parole period of 16 years to date from 17 November 2004. The first date on which you will be eligible for consideration of release on parole is 16 November 2020. The balance of the term of the sentence is five years. The sentence will expire on 16 November 2025.

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