Ishrat Malik murdered his wife Farhat and 18 year old daughter, Sidra. He pleaded guilty and was sentenced in the High Court to life imprisonment with a minimum period of imprisonment of 18 and a half years.[1] He now appeals the minimum period.
Mr Malik and Farhat married in 1988 in Pakistan, where he was a construction foreman and she a scientific officer. The marriage was arranged. They had three children. The family emigrated to New Zealand in 2002 and they settled in Auckland, where Mr Malik worked as a bus driver.
Mr Malik maintains that the marriage was a loving relationship, but in the circumstances that seems implausible and the background information available to us, including witness statements,[2] indicates that it was unhappy from the beginning. Mr Malik appears to have been a rigid and domineering husband and father, disposed to find unacceptable anything less than complete deference and strict obedience to his wishes as head of the house, and it appears that there was a history of domestic violence.
[2]Prepared for a hearing held under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
In 2013 Farhat left the family home in Ranui, taking Sidra. The cause appears to have been an assault on Sidra. Farhat took Sidra to a Women’s Refuge and obtained a protection order against Mr Malik.
Mr Malik did not accept his wife’s decision to leave. He says he was offended because he had been a loving husband and the marriage was a happy one. He manipulated the couple’s children to persuade her to return home, and sought Farhat’s forgiveness. Eventually Sidra did return home. Farhat did not, but she spent increasing amounts of time there, sometimes staying for several days at a time.
Farhat eventually decided that she would not reconcile with Mr Malik. She made arrangements to move to another house. The move was arranged for 20 May 2014. She and Sidra spent the night of 18 May at the family home.
Knowing of his wife’s plans, Mr Malik spent the night brooding. He decided that he would kill her, and Sidra too. At about 5.30 am he phoned his employer to say that he would not be at work for a few days. He took a large kitchen knife and went to Farhat’s room, where he stabbed her 31 times. He then went to Sidra’s room. She realised what was happening and tried to flee. He overcame her and stabbed her 25 times.
At 10 am Mr Malik dialled…
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.
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Details
AGLC
Malik v R [2015] NZCA 597
Case
[2015] NZCA 597
Decision Date
CaseChat Overview and Summary
Ishrat Malik killed his wife and daughter in 2014, for which he pleaded guilty and was sentenced to life imprisonment with a minimum term of 18 and a half years. He appealed the minimum term, arguing that it was too long and that he should have received a larger discount for his guilty plea and for his good character. The court considered the principles behind setting minimum periods for murder sentences, rejecting Malik's argument that the same principles that apply to determinate sentences should apply to minimum periods. The court found that the starting point of 21 years for the minimum period was appropriate given the brutality of the murders and that the discounts given for mitigating factors were within the sentencing judge's discretion. The appeal was dismissed.
The key issues were whether the starting point for the minimum period was too high and whether the discounts for mitigating factors were too low. The court found that the starting point of 21 years was appropriate given the circumstances and that the discounts given were within the sentencing judge's discretion. The court rejected Malik's argument that the full Hessell discount should apply to minimum periods and found that the mitigating factors did not warrant larger discounts. The appeal was dismissed and the original sentence was upheld.