Khan v The Queen

[2005] NZCA 148

IN THE COURT OF APPEAL OF NEW ZEALAND

CA470/04

THE QUEEN

v

AHMAD RIYAZ KHAN

Hearing:19 May 2005

Court:William Young, Goddard and Salmon JJ

Counsel:P J Kaye for Appellant

A J F Perkins for Crown

Judgment:14 June 2005 

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Goddard J)

[1]       The appellant was convicted of murder by a jury in the High Court at Auckland and sentenced to life imprisonment with a minimum non parole period of 19 years.  He appeals against the imposition of that minimum period of imprisonment on the grounds that it is manifestly excessive in all the circumstances and, in particular, because it is inconsistent with the principles in ss 8(e) and (g) of the Sentencing Act 2002.

[2]       The imposition of a minimum period of imprisonment of at least 17 years in certain circumstances is provided for in s 104 of the Sentencing Act.  Sections 104(b) and (e)  are relevant to the appellant’s case:

104     Imposition of minimum period of imprisonment of 17 years or more

The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

…

(b)if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or

…

(e)if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or

Section 104(i) further provides for the imposition of a minimum period of at least 17 years:

(i)         in any other exceptional circumstances.

[3]       Sections 8(e) and (g) of the Sentencing Act, relied on by the appellant, provide:

8    Principles of sentencing or otherwise dealing with offenders

In sentencing or otherwise dealing with an offender the court—

…

(e)must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and …

(g)must impose the least restrictive outcome that is appropriate in the circumstances; …

The circumstances

[4]       The victim and the appellant are of Fijian Indian families which have settled in New Zealand.  The victim was employed as a manager of the Shell Service Station in Atkinson Avenue in Otahuhu and through her employment there met and formed a friendship with the appellant, who was a car groomer.  Their friendship was short lived however and within a month had deteriorated. Although the victim regarded the relationship as at an end the appellant was not prepared to accept this and persisted in trying to maintain contact with her.  His efforts were not reciprocated however and matters came to a head when the appellant’s mother telephoned the victim’s home and levelled accusations at her parents.  An encounter between the two was captured on the video surveillance cameras at the service station two days before the victim’s death, in which clearly acrimonious exchanges took place and the appellant attempted to block the victim’s exit from the premises before following her.  This unpleasant encounter caused the victim enormous distress and fear and she was advised to take out a trespass order against the appellant.  The appellant was reported to be in an angry state and was heard to utter threats to blow up the Shell service station where the victim worked.

[5]       On the morning of the victim’s death the appellant uplifted an LPG cylinder from his family’s home and took it to a friend’s panelbeaters shop where he tried unsuccessfully to borrow a petrol can.  Subsequently he persuaded an employee of the panelbeater to telephone the victim and invite her out.  However, once the victim realised it was a crank call and that the appellant was probably behind it she hung up.  The appellant then persuaded the employee to drive him to a service station for the ostensible purpose of getting his LPG cylinder filled.  The employee went to drive the appellant to a nearby Caltex service station but the appellant insisted on going to the Shell service station in Atkinson Avenue, where the victim was working.  There was however no facility for filling a gas cylinder at the Shell in Atkinson Avenue and the gas cylinder was just a ploy for going to the service station.

[6]       The appellant’s arrival at the Atkinson Avenue service station and the events that occurred thereafter were recorded by the video surveillance cameras situated on the forecourt and in the service station shop.  These events were detailed by the trial Judge, Frater J, in her sentencing remarks and are not in dispute:

[14]     You arrived there at two minutes past one, put some petrol in the car, and went into the shop and paid for it.  Mr Ali left, leaving you, with the gas bottle, behind.

[15]     You then disappeared from sight for eight minutes before re-appearing on the forecourt, picking up the gas bottle and walking into the shop.  The video camera footage shows you walking up to the counter with the LPG cylinder, and putting it down.  Only Ms Hussein was there at that stage.  What you did next is not recorded on the video.  Whatever you did or whatever you said, it caused Ms Hussein to try to move from behind the counter.  You blocked her passage.  The two of you wrestled and she tried to get past you.  You followed her, holding a box of matches.  The Crown submitted, and I accept, that in the eight second interval when you were out of camera range, you must have taken a bottle of fuelite from the shelf and poured it over Ms Hussein.  She ran to the door.  You tried to intercept her.  A struggle took place by the door, which you shut.  Whether the struggle was because she was trying to get out or was trying to grab the matches from you is really immaterial.  It is obvious from the film footage that at this stage she was panic stricken.  She could have been in no doubt what your intentions were.  You managed to overpower her and forcibly dragged her back towards the counter where you had left the cylinder. She was literally fighting for her life.  She escaped twice more, only to be caught by you each time.  On the final occasion you pulled her around behind the counter where you held her on the floor, grabbed a cigarette lighter off the shelf, and set her alight.  She was immediately engulfed in flames.  You jumped over the counter and left the shop.  Courageously, she followed out onto the forecourt where she desperately tried to reach the tap.  But it was too late.  Several passers-by came to her aid.  However, the nature of the fuelite was such that the flames could not be extinguished.  Mercifully she died seconds later.

[16]     Because of surface burns you suffered to your face and more severe burns to your right hand, you were taken to hospital.  While there you were interviewed by the police.  Initially you denied even being next to Ms Hussein when she burst into flames, saying that you saw she was on fire so you grabbed her, as a result of which you sustained burns which prevented you from rendering any further assistance.  Under further questioning you admitted pushing her and pulling her hair.  You said you did so because she was crazy and had tried to scratch you and had come at you with a weapon, (the matches).  You explained your actions in wresting her away from the door on the basis that a taxi driver, who had driven on to the forecourt, might have thought you were committing a robbery.  But you persisted in denying responsibility for her death.  And you maintained that stance in your evidence at trial.  You said that her death was a dreadful accident.

Pre-sentence report and victim impact statements

[7]       The probation officer who wrote the pre-sentence report found nothing in the appellant’s background or in his family circumstances to explain his offending, noting only a lack of maturity and the possible impact of the relative freedoms and opportunities available in New Zealand compared with Fiji.  He found the appellant unmotivated to change.  His general attitude and his overall view of his offending suggested that he did not perceive that any behavioural change on his part was necessary.  Although he acknowledged, for the first time, responsibility for the victim’s death the appellant did not express nor demonstrate any sincere empathy for her.

[8]       In contrast, the victim impact statements make clear that the effect of the victim’s death on her parents and family has been severe.  The victim supported her family, both financially and emotionally and was much loved by them.  The court hearings and trial of the appellant proved a terrible ordeal for them, with the anguish of those hearings being further compounded by the appellant’s behaviour towards them.  Frater J noted the appellant’s attitude and behaviour towards the victim’s family as follows:

[27]     You have shown no remorse.  You have been arrogant.  You threatened them at a hearing at the Papakura District Court and followed that with a letter in which you threatened to deal with Mr Hussein when you get out of prison.

[28]     Then, at the end of the trial, after the jury had returned their verdict and you were walking from the Court, you raised your fingers in the air, in an obvious rude gesture towards them, and to the Court.  To add insult to injury you wrote yet another letter to Mr Hussein in which you purported to congratulate him on the outcome and, in some way, to blame him for the circumstances that the family find themselves in.

Sentencing decision

[9]       Essentially, Frater J adopted the approach outlined in R v Williams and Olsen CA64/04 CA117/04 20 December 2004.  She considered first whether the presence of one or more of the s 104 factors required a minimum period of imprisonment of at least 17 years and if so, whether any circumstances rendered it manifestly unjust to impose that minimum term.  Having found that ss 104(b) and (e) applied she then found no circumstances that rendered it unjust, let alone manifestly unjust, to impose a minimum term of at least 17 years, referring to R v Parrish CA295/03
12 December 2003 at [19]. She then determined, as a second step, whether an increase of that minimum were required in order to sufficiently punish, denounce and deter the appellant and his conduct, noting that the Crown sought a minimum non-parole period of 20 years and the appellant sought a minimum term as close to 17 years as possible.

[10]     Considering the s 104(e) factors first, Frater J found that the method of killing employed by the appellant unquestionably involved a high level of brutality, cruelty, depravity and callousness.  She found the circumstances of the victim’s death, captured as they had been on the continuously operating videotapes, particularly repugnant.  She referred to the savagery with which the appellant pursued the victim in the service station shop and the determination with which he relentlessly dragged her back from the door when she tried “again and again” to escape from him.  She described the look of sheer terror on the victim’s face as she beat on the door and screamed for help and described how, having set her alight, the appellant then stood by and did nothing to help the victim, even despite requests from others who tried to help her once she had escaped out onto the forecourt.

[11]     Of the s 104(b) factors, Frater J found the appellant’s remarks to others about blowing up the service station, the lengths to which he went to obtain an LPG cylinder as an excuse for going to the service station, his attempts to borrow a petrol container and his taking of matches to the service station, clear evidence that he had planned the victim’s death and the manner of her death.  He had adopted the pretext of needing to fill the LPG cylinder to provide himself with both a reason for going to the service station and a subsequent innocent explanation for being there at the time of the victim’s death.

[12]     In determining a minimum sentence, Frater J was mindful that she should not double count, as aggravating features, the circumstances in ss 104(b) and (e) that gave rise to a starting point of a 17 years.  Nevertheless, she found that the degree of premeditation involved, the high level of brutality, cruelty, depravity and callousness exhibited by the appellant, the danger posed to others using the service station, and the reprehensible nature of the appellant’s behaviour towards the victim’s family afterwards, justified an uplift of two years.  In concluding that a minimum sentence of 19 years was appropriate, the Judge took into account the few mitigating factors present; namely, the appellant’s otherwise good background and relative youthfulness.

Discussion

[13]     The sole issue on appeal is the extent to which a minimum sentence above the 17 year mark is justified in the appellant’s case, and whether the level of premeditation and the brutality and callousness involved in his offending are sufficiently recognised by a minimum term of 17 years.  Mr Kaye submitted that other serious cases, such as R v Ying (2004) 20 CRNZ 1078 and R v Lundy (2002)
19 CRNZ 574, contained significant aggravating features that were not present in the appellant’s case.  Both of those cases concerned double murders.  Mr Kaye referred also to the recent decision of this Court in R v Williams (supra) and to the degree of brutality and callousness involved in the killing of a young child in that case.  He submitted that s 104(e) encompassed all of the features of brutality and callousness apparent in the appellant’s offending and that it was arguable whether, on the facts, the required level of premeditation in s 104(b) was present.

[14]     Whilst it is true that the premeditation in this case was not of a lengthy duration and nor was the murder plan particularly complex, there was a degree of both premeditation and planning involved.  Of singular significance however is the level of cruelty in the method of death selected and the ruthlessness and remorselessness with which the appellant carried out his murder plan and then stood by while others tried vainly to help the victim.  Those singular features demanded the imposition of something more than the minimum period of imprisonment. In addition and compounding the appellant’s criminality was his threatening, abusive and cruel behaviour towards the victim’s family afterwards.  This behaviour, as
Mr Perkins submitted, was properly to be categorised as a further aggravating feature.

[15]     The restriction on the sentencing discretion in ss 103 and 104 is that a minimum period of at least 17 years must be imposed, unless it would be manifestly unjust to do so.  It remains however for the sentencing Judge’s discretion as to whether and by how much that statutory minimum should be increased, having regard to the extent and degree to which any s 104 circumstance is present and with regard to proportionality and the least restrictive outcome.  In exercising her discretion, Frater J remained mindful of the risk of double counting as aggravating features those matters already taken into account in the statutory minimum.   She was mindful also of the need to “… keep a sense of proportion and endeavour to administer the non-parole jurisdiction on a principled and balanced basis” (R v Bell CA80/03 7 August 2003 at [10]), and of the need to impose the least restrictive outcome appropriate.  Her approach in these regards was consistent with the principles in ss 8(e) and (g).

[16]     A 19 year minimum sentence in the circumstances of the appellant’s case cannot be described as manifestly excessive.  It represents an appropriately modest uplift on the minimum term required of at least 17 years imprisonment.

Conclusion

[17]     The appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland