Akash v R
[2017] NZCA 122
•11 April 2017 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA512/2016 [2017] NZCA 122 |
| BETWEEN | AKASH |
| AND | THE QUEEN |
| Hearing: | 8 March 2017 |
Court: | Winkelmann, Woodhouse and Collins JJ |
Counsel: | M S Gibson for Appellant |
Judgment: | 11 April 2017 at 2.30 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
The appellant, Mr Akash, pleaded guilty to one charge of murder. He was sentenced by Palmer J to life imprisonment with a minimum period of imprisonment of 17 years.[1] He appeals against sentence on the basis that the Judge failed to take into account his guilty plea and remorse when addressing the issue of whether imposition of the 17-year minimum would be manifestly unjust.
The Crown facts
[1]R v Akash [2016] NZHC 2348 at [27].
At the time of the offending Mr Akash was 24 years old. For about the previous 12 months he had been in a relationship with the victim, Ms Gurpreet Kaur, who was 22 years old. They were both students although Mr Akash was working lengthy hours in part‑time jobs to fund his studies. The two had kept their relationship secret from their families.
On the day of the offending Mr Akash collected Ms Kaur from the Manurewa train station. She had been dropped off there by her mother who thought Ms Kaur was going to study. Mr Akash and Ms Kaur drove south. Medical evidence suggests that Ms Kaur was some seven to 10 weeks pregnant. She had yet to tell her parents of this. Mr Akash believed that he was the father of the child.
At about 9 am Mr Akash bought methamphetamine in Meremere and continued south. He used the methamphetamine shortly before the murder. His account is that Ms Kaur told him she wanted to break off the relationship and that the baby she was carrying was not his. Mr Akash reacted violently. Using a knife that he kept in the car he cut and stabbed Ms Kaur 29 times, in her scalp, face, neck, chest and abdomen. A cut to her neck injured her jugular. There were also cuts on her right hand and left forearm consistent with her defending herself. There were 23 stab wounds to the body, four or five of which were to the abdomen. There was at least one deep wound and three lesser wounds to the abdomen. There were also many other blows to Ms Kaur’s upper torso.
At the end of the attack Ms Kaur was dead. Mr Akash disposed of her body in the scrub on the roadside of Hampton Downs Road, south of Meremere. He then threw her bag out of the window of his car as he travelled north. At Otahuhu he bought new clothes and placed his bloodied clothes in a plastic bag, although he left his old top in the changing room of the clothes shop. Later that day Mr Akash left the remaining old clothes under the house of an associate in Manurewa.
On the evening of Saturday 9 April 2016 Mr Akash confessed to his brother and said he was going to kill himself. At the urging of their father, the brother called the police to report this. The police interviewed Mr Akash twice on Sunday 10 April. In both interviews Mr Akash maintained that he was not involved in the killing of Ms Kaur but at some point indicated he knew where her body was. At the conclusion of the second interview the police made a plea to Mr Akash to help Ms Kaur’s family by leading them to the body. Mr Akash agreed to do so and that night led the police to where he had placed Ms Kaur’s body.
The next day there was a third interview. Again Mr Akash denied having killed Ms Kaur.
Based on the information obtained from the interviews police were able to find the clothing left or discarded by Mr Akash. They also located extensive blood staining in Mr Akash’s car and found Ms Kaur’s handbag where he had discarded it.
Mr Akash was charged with murder on 11 April 2016. On 17 August 2016 he pleaded guilty. He had no previous criminal history.
Sentencing
Palmer J considered whether Mr Akash’s offending was of such a nature that s 104 of the Sentencing Act 2002 should apply — s 104 provides in substance that for the most serious cases of murder the minimum period must be at least 17 years unless that would be manifestly unjust.[2] One of the categories of cases to which that section applies is where the murder was committed with a “high level of brutality, cruelty, depravity or callousness”.[3]
[2]At [18].
[3]Sentencing Act 2002, s 104(1)(e).
The Judge directed himself that any murder is brutal, cruel, depraved and callous and accordingly he was required to compare different cases to ensure that any sentence he imposed was fair.[4] The Judge discussed cases that had been referred to him by the Crown and by the defence. He said that compared to cases where less than a 17-year period of imprisonment had been imposed, Mr Akash’s offending was aggravated by the fact that Ms Kaur was in her first trimester of pregnancy.[5] Although he accepted that did not make her particularly vulnerable in terms of s 104(1)(g) of the Sentencing Act, he accepted her pregnancy would have contributed to her feeling psychologically vulnerable.[6] Moreover, he observed that Mr Akash knew she was pregnant and “stabbed her most deeply and most often in the abdomen”.[7] He continued:[8]
Not only did you murder Gurpreet Kaur and deprive her family of her existence, but you deprived her and her family of the potential of another life. That is the key factor that raises your culpability above the other, relatively less serious, cases.
[4]R v Akash, above n 1, at [19].
[5]At [21].
[6]At [21].
[7]At [21].
[8]At [21].
We interpolate at this point to record that the Crown concedes on appeal that the Judge’s characterisation of the offending is inaccurate in this respect — only four blows were struck to the abdomen whereas the most commonly struck area was the upper torso.
Palmer J discussed whether there were mitigating factors in the case compared to others as follows:[9]
[9]At [23].
(a)He acknowledged Mr Akash’s lack of previous criminal history and that he had no known history of violence although he observed that Mr Akash had admitted to regular use of methamphetamine, which was also a feature of his offending.
(b)He referred to a medical condition noted in the pre-sentence report, but did not regard that as a mitigating factor. That mitigating factor is not now raised on appeal.
(c)He recorded Mr Akash’s counsel’s submission that Mr Akash had acted out of upset at being told the baby was not his. The Judge did not accept that anything Ms Kaur did justified Mr Akash’s actions.
(d)Mr Akash expressed remorse, assessed by the pre‑sentence report writer as genuine. The Judge also received a letter written by Mr Akash expressing remorse. Although he took that into account the Judge said:[10]
But I also note that the terms of your letter blame your anger, not yourself. You blame your “anger” which “led” you to commit such a horrific crime and which “took” your freedom, your love and your life away from you. You need to further reflect on, and own, your responsibility for your actions.
(e)The Judge took into account the guilty plea which spared the Kaur family a trial. But said:[11]
I note that it comes after your efforts to cover up the murder, and to deny that you committed it in three Police interviews until confronted with overwhelming evidence and you pleaded guilty four months after arrest.
(f)Finally, the Judge recorded that cultural factors could not mitigate the commission of murder under New Zealand law.
[10]At [23(d)].
[11]At [23(e)].
The Judge said that after considering all of those factors he was satisfied a minimum period of imprisonment of 17 years was justified — it was not a manifestly unjust sentence.[12]
Legal principles: s 104 of the Sentencing Act
[12]At [24]–[25].
The principles and methodology to be applied under s 104 of the Sentencing Act are settled and well summarised in R v Harrison as follows:[13]
[41] The methodology for sentencing in murder cases where one or more s 104 aggravating factors are present involves a two-step process. The first step is for the Court to consider the degree of culpability of the instant case in relation to that involved in standard cases. In so doing the Court would take into account in the normal way all pertinent aggravating factors including those set out in s 104, together with any mitigating factors. If the first step produces a minimum period of imprisonment of 17 years or more, the minimum term must reflect that assessment.
[42] Where the first step indicates a lesser minimum term being justified, the Court goes on to the second step and considers whether imposing a minimum term of 17 years’ imprisonment would be manifestly unjust. If so, the minimum term must be reassessed to what the Court considers to be justified. This is not, however, a mandate to reduce a 17-year minimum term whenever the Court considers it appropriate to do. The manner in which step two operates was discussed by this Court in Malik v R:[14]
A lesser minimum period would be warranted where the judge decides as a matter of overall impression that the case falls outside the legislative policy that certain murders are sufficiently serious to warrant at least that minimum period. The full range of sentencing criteria in ss 7 to 9 of the Sentencing Act may inform that overall impression, but because the legislative policy in s 104 must be respected, powerful mitigating factors may be needed to displace the 17 year presumption. A guilty plea is not always entitled to significant weight, and the discount required for the plea may be less than it would have been but for s 104, which requires something more than the fact that a particular discount would have been given had the presumption not applied.
[13]R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602.
[14] Malik v R [2015] NZCA 597 at [32] (footnotes omitted).
If the offending falls within s 104, a guilty plea may nevertheless require a sentence of less than 17 years. This Court observed in R v Williams:[15]
[66] However, the specified minimum period may not be departed from lightly, as the Court is bound to give effect to the legislative policy of ensuring a 17-year minimum for the most serious murder cases. The reasons must withstand scrutiny. Marginal differences in personal circumstances or degrees of participation by co-offenders would not normally qualify. In Parrish at para [21] this Court indicated that the presence of mitigating factors under s 9(2) which related to the personal circumstances of an offender would rarely displace the presumption. Powerful mitigating circumstances bearing on the offence are more likely to do so.
…
[72] … A guilty plea will not always be entitled to significant weight in this assessment. How much weight is to be given to that factor must depend on the circumstances in which the plea was made, bearing in mind that a plea always avoids a murder trial and will give closure sooner to the victim’s family. We also point out that it would be manifestly unjust if two persons with equal culpability, sentenced for the same offending, received an identical minimum term of imprisonment despite one only of them having pleaded guilty.
[73] The discount required for a guilty plea may, however, often be less than in an ordinary case where the statute establishes no presumption that the sentence will be at a particular level. The reason is that departures from the 17-year minimum are only to occur in cases of clear injustice. While the Act requires that a plea of guilty be taken into account, as a mitigating factor, s 104 requires something more than the fact that a particular discount would have been given but for the section to establish a clear injustice. It follows that if a minimum term of 17 years would include a real element of discount for a guilty plea, it would normally be appropriate to impose that term.
[15]R v Williams [2005] 2 NZLR 506 (CA).
As Adams on Criminal Law — Sentencing suggests, such a discount is likely to be between 12 months and two years, important considerations in fixing this being the timing of the plea and the strength of the Crown’s case.[16]
[16]See discussion in Simon France (ed) Adams on Criminal Law — Sentencing (looseleaf ed, Thomson Reuters) at [SA104.04].
Mr Gibson’s submission, on behalf of Mr Akash, is that because of the early guilty plea, a minimum sentence of 17 years is manifestly unjust.
Analysis
It is common ground that s 104(1)(e) applied, which provides for the 17‑year minimum “if the murder was committed with a high level of brutality, cruelty, depravity, or callousness”.
The Judge said he took the guilty plea into account,[17] although just how it was taken into account is not made explicit. Because of this lack of clarity we have undertaken the sentencing exercise afresh to satisfy ourselves whether the end sentence of life imprisonment with a 17-year minimum is indeed manifestly unjust.
[17]R v Akash, above n 1, at [23(e)].
Several factors qualified the murder of Ms Kaur as highly brutal, callous and cruel. The violence was brutal and barbaric — 29 blows struck in a confined space. We do not attach any significance to the error made by the Judge as to the location of those blows. This was a vicious and prolonged attack. The dumping of Ms Kaur’s body on a roadside is further evidence of the callous nature of the offending. Most aggravating of all, however, is the victim’s pregnancy and Mr Akash’s knowledge of that at the time of the murder. As the Judge observed, knifing Ms Kaur in the abdomen was an especially cruel act.[18] Again, as the Judge observed, the fact that Ms Kaur was pregnant at the time she died exacerbated the loss and harm caused by the offending.[19] Putting the guilty plea to one side, we consider a starting point of 18 years would have been appropriate in this case because of these additional aggravating features. We note that was the starting point argued for by the Crown at sentence.
[18]At [21].
[19]At [21].
The next issue is the impact the guilty plea should have upon this assessment. In assessing the impact this has upon the assessment of whether the minimum sentence imposed was manifestly unjust, it is relevant that Mr Akash did not immediately accept his guilt and continued to deny it when interviewed. Nevertheless this was, as the Crown accepts, an early guilty plea: Mr Akash pleaded guilty shortly after he was charged.
Mr Akash was also assessed by the pre-sentence report writer as being remorseful, which adds something to the early guilty plea. We note, however, the Judge’s doubt that Mr Akash had fully accepted responsibility for his actions.[20]
[20]At [23(d)].
It is, as the Crown submits, also relevant that the case against Mr Akash was strong. The Crown could point to forensic evidence, evidence of Mr Akash’s movements on the day of the murder and, finally, the evidence of finding Ms Kaur’s body with Mr Akash’s help. We note Mr Gibson’s submission that much of the Crown evidence can be traced back to information provided by Mr Akash. We do not see that this helps Mr Akash, however, as it was information provided by him while he continued to deny the offending.
Given that a starting point of 18 years was appropriate, Mr Akash must show that a discount of one year inadequately reflects his guilty plea. We do not consider he has done this. As this Court said in Williams, a guilty plea will not always be entitled to significant weight in this assessment and, if a minimum term of 17 years includes a real element of discount for the relevant guilty plea, it will normally be appropriate to impose the minimum term.[21]
[21]R v Williams, above n 14, at [72]–[73].
We are satisfied that a one-year adjustment does include a real element of discount in these circumstances. We bear in mind that Mr Akash did not immediately accept his guilt and tried to cover up his crime. We also agree with the Judge that Mr Akash’s letter of remorse discloses an acceptance of something less than full responsibility for his actions. In short, we are satisfied that the 17-year minimum term is not manifestly unjust and we should not interfere on appeal.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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