R v Ahlawat

[2022] NZHC 2233

INTERIM ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT. THE ORDER WILL BE REVIEWED AT 9.00 AM ON 19 SEPTEMBER 2022.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-010927

[2022] NZHC 2233

THE QUEEN

v

ISABELLA NIKI-HARPER AHLAWAT

Hearing:

2 September 2022

Appearances:

D Johnstone for Crown

S N B Wimsett (by VMR), T Cooper and L R Toepfer for Defendant

Sentenced:

2 September 2022

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland Counsel:  D Johnstone, Auckland

S N B Wimsett/T Cooper/L R Toepfer , Auckland

R v AHLAWAT [2022] NZHC 2233 [2 September 2022]

[1]    Isabella Ahlawat, you are for sentence this morning for arson and for the manslaughter of Stephen Ewart. Following trial, a jury found you guilty of both offences. The maximum sentence for arson is 14 years, and for manslaughter, life imprisonment.

[2]    Mr Ewart was a vulnerable person. Although he was 58 when he was killed, he functioned at around the level of a 12 or 13 year old child and his intellectual impairment was obvious. While he lived independently he was unable to maintain employment and was socially isolated.

[3]    You first met Mr Ewart when you and your mother were neighbours of his at 11 Rustic Avenue, Mount Roskill, for a period of about five years from the middle to the late 2000’s. You and your mother maintained a level of contact with Mr Ewart after he left his flat in Rustic Avenue around 2013.

[4]    Mr Ewart became socially and emotionally dependent upon you and regarded you as a very close friend. You reciprocated and encouraged that relationship. In one text you referred to him as “dad”. In 2016 you made a complaint of assault against a Mr Singh. At that time Mr Singh, who is an associate of your father’s, had been assisting your father to divorce your mother. You coached Mr Ewart to give a statement to support your account of Mr Singh’s assault. You were able to exert considerable authority and direction over Mr Ewart and that was plain.

[5]    Then in late 2017 there were two significant developments. First, a Mr Rhodes, a private investigator who had been involved in Mr Singh’s case, (which by then had been dropped) spoke to Mr Ewart about his statement and the case. That prompted Mr Ewart to contact you again. At about the same time, you and your mother were involved in a tenancy dispute with your landlord and the property manager in relation to the flat at 3/11 Rustic Avenue. The property manager had been trying to bring your mother’s tenancy of that property to an end since August 2017. Ultimately you appeared on behalf of your mother (who was overseas at the time) at the Tenancy Tribunal hearing on 6 December 2017. A consent order was made to terminate the tenancy with effect from 11.59 pm on 10 December 2017.

[6]    For your own reasons you determined to take revenge on the landlord and property manager by damaging the property by fire. You decided to use Mr Ewart as your instrument to give effect to your plan. After the tenancy hearing on 6 December 2017 you met with Mr Ewart. You either purchased or arranged for Mr Ewart to purchase a MobiWire phone and sim-card from a branch of the Warehouse Stationery and also arranged for him to obtain an AT HOP card so he could travel to and from his central city apartment.

[7]    On 7 December 2017 you also arranged for Mr Ewart to come to a property at Glen Eden where you were living at the time. You had a long meeting with him that day. I infer that at that meeting you set out the details of your planned arson and instructed Mr Ewart as to what he was to do. You had also arranged the purchase of a second MobiWire phone to enable you to have covert communications with Mr Ewart, which would not be traced back to your regular phone. At the same time you purchased Energiser batteries, apparently for use in the headtorch that Mr Ewart had with him when he was under the flooring of 3/11 Rustic Avenue to start the fire. To avoid detection all the above purchases were made by cash. Subsequently there was the involvement of a plumber at the property. The water was turned off. During this period I infer you also brought or arranged for numerous milk bottles filled with petrol to be left at a location near to the flat for Mr Ewart to use in the arson.

[8]    A smoke alarm that had been installed and tested on behalf of the landlord in September 2017 must also have been interfered with at some stage as it was not activated by the fire and was not functioning when checked immediately after the fire.

[9]    As part of your plan, and in order to provide you with an alibi, in the early hours of 9 December 2017, you went to Waitakere Hospital to ensure you were captured on CCTV during the course of the early hours of that morning knowing that Mr Ewart was going to set fire to the Rustic Avenue property at around that time. While there you used the covert phone you had bought to try and contact him on his covert phone.

[10]   Having placed the milk bottles of petrol under the underfloor space at 3/11 Rustic Avenue and removed some of the tops, Mr Ewart attempted to light the fire at

around 6.00 am on 9 December. Unfortunately, in the course of putting the milk bottles with the petrol about the underfloor space and taking their lids off he had released fumes and spilled petrol on his clothes so that when he lit the fire, the fire ignited his clothing and he was also set ablaze. Mr Ewart died a short time later at the scene.

[11]   When Police approached you later in the morning of 9 December 2017 you lied to them. You said you had been asleep since arriving home from the hospital. In fact the records show you had made a number of attempts to contact Mr Ewart using the covert phone. Following your interview with the Police that afternoon, you went to Mr Ewart’s apartment, apparently in an attempt to find and conceal evidence, in particular Mr Ewart’s regular phone. However, a police officer had already visited Mr Ewart’s apartment and taken the phone as an exhibit. You also engaged in a series of text messages with a former neighbour, a Mr Christini, in an attempt to establish some sort of a defence to the effect and to place the blame on Mr Ewart based on the suggestion Mr Ewart had been upset about his belongings being removed from the flat so as to paint a picture he was solely responsible.

[12]   While the Crown case against you was a circumstantial one, it was an overwhelming circumstantial case. The text messages and timing of communications and contact between the burner phone used by you and the phone found with Mr Ewart’s body were telling. The jury rightly found you guilty of both offences.

[13]   While I accept that you did not mean for Mr Ewart to die, you deliberately used him as your innocent agent to damage 3/11 Rustic Avenue by fire. You must have known that setting fire to 3/11 Rustic Avenue was obviously dangerous, both to the residents of the adjoining properties and also to Mr Ewart given his limited intellectual capacity but that did not deter you. As a result of your attempt to take action or revenge against your landlord, the property was damaged and tragically Mr Ewart was killed.

[14]   In sentencing you the Court is required to have regard to the purposes and principles of the Sentencing Act 2002. The primary purposes of the sentence in this case are to denounce your conduct; to hold you accountable for the harm caused to Mr Ewart and his family and the community by your offending; and to promote in

you a sense of responsibility for the harm you have caused. The sentence imposed should also deter you and others from acting in a similar fashion.

[15]   The particularly relevant principles of sentencing are the need to take into account the gravity of the offending which has led to the loss of a life, your culpability which is reflected by the degree of your planning and the use of Mr Ewart, and the seriousness of the offences, particularly manslaughter. The Court is also directed to have consideration to your rehabilitation and reintegration into society ultimately, and to take account of other comparative cases where relevant.

[16]   In fixing the starting point I agree with the Crown submission that there are a number of aggravating features in your case. First and principally, the advantage you took of Mr Ewart, a vulnerable person. You were well aware of Mr Ewart’s limited intellectual and emotional state and that he regarded you as a friend and relied on you and that friendship. You cynically took advantage of his reliance on your friendship to use him to set fire to the Rustic Avenue property. Second, the degree of premeditation and planning involved. This was no spontaneous act. It was a carefully calculated plan designed to extract revenge on your landlord.

[17]   There is a further aggravating feature of the offence, which is the danger posed by your actions. The arson you had planned was carried out in the early morning in the underfloor area of one of a series of connected flats. While 3/11 Rustic Avenue was vacant there were families and other residents in the other adjoining flats who were at risk.

[18]   The Crown submit a starting point in the range of 10 to 13 years’ imprisonment would be appropriate. The defence submit that, having regard to other relevant cases, a starting point of eight to eight and a half years would be available. It is then argued for a reduction in sentence to take account of mitigating factors. The Crown says there are no mitigating factors.

[19]   While I have considered all the cases counsel have referred to, I agree with the defence submission that the two of particular relevance are the cases of R v Clayton

and R v Singh.1 Ms Clayton had become convinced her boyfriend was having an affair with two other women. She threatened to kill them and planned to fire-bomb the house in which the two women lived. She told her flatmate, Mr Pearce about the plan. Mr Pearce volunteered to help and assist to purchase materials to manufacture Molotov cocktails. On the night of the preparations, a third flatmate, a Mr Edgerton became involved. He agreed to assist. He drove Ms Clayton and Mr Pearce to the target house. All three threw Molotov cocktails through the lounge window. There were five people in the house at the time but only four managed to escape. The elderly mother of one of the women perished in the fire. Ms Clayton was convicted of murder. Neither Mr Pearce nor Mr Edgarton were aware there would be people in the house. Mr Pearce was convicted of manslaughter and arson. The Court took a starting point of nine years’ imprisonment for him.

[20]   There is then the case of R v Singh.2 Mr Singh was tried for murder and convicted of manslaughter and arson at a jury trial. The victim was his wife. She died of the burns inflicted when their matrimonial home exploded in a petrol-fed fireball in the early hours of the morning. Mr Singh had visited the house shortly before the fire and then left the scene in the company of his mother and infant son, taking with him some of his wife’s jewellery. He also attempted to give himself an alibi by taking his baby to a local medical centre at about the time of the fire. There had been a suggestion by the defence counsel during closing the wife may have been involved in the plan of arson with no intention that anyone should die. The Court of Appeal approved an end sentence of eight years’ imprisonment for the manslaughter in that case.

[21]   In the Court of Appeal the Court accepted that the circumstances of the arson were such that if Mr Singh was complicit at all he must have been significantly involved in the planning and execution of the fire. There was a possibility of, at least on the defence case, a joint arrangement that had gone wrong.

1      R v Clayton HC Wellington CRI-2006-054-557, 22 June 2007; R v Singh CA317/99, 7 December 1999; R v Webster [2014] NZHC 649; R v Taylor [2016] NZHC 649; R v Davies HC Auckland CRI-2007-019-8269, 18 December 2008; R v Wawatai [2014] NZHC 2374; and R v Edwards [2005] 2 NZLR 709 (CA).

2      R v Singh, above n 1.

[22]   There is, however, in my judgment, a significant difference between your case and the cases of Mr Pearce and Mr Singh. Mr Pearce was effectively acting to assist Ms Clayton, who was the instigator of the offending. As noted, in Singh, there is a suggestion that both Mr Singh and his wife were involved in a joint plan to set fire to the home.

[23]   Your culpability in this case is higher. You were the sole instigator of the offending in this case. Your offending involved significant planning and deception, both in attempting to conceal your involvement and in your manipulation and use of Mr Ewart. The jury found you had used Mr Ewart as your innocent agent or instrument. If they had considered Mr Ewart was acting independently of you, they were directed to find you not guilty of both charges. The jury rejected that, in my view rightly. I take as a start point for your sentence nine years, six months.

[24]   There are no aggravating personal circumstances. As noted, the Crown submit there are no mitigating personal circumstances.

[25]   The defence however, argue the sentence starting point should be reduced for a number of factors. First, under s 9(2)(fa) of the Sentencing Act 2022 the Court must take into account steps an offender has taken during proceedings to shorten or reduce the cost of proceedings. I acknowledge that, after contracting Covid-19 towards the conclusion of the trial you consented to the closing stages of the trial continuing with your appearance by VMR. The alternative would have been to adjourn the trial for seven days’ stand-down period. In those circumstances I accept that an allowance of four months is available to you for that co-operative approach.

[26]   The defence also seek a further reduction for good character. I do not consider that any significant discount for good character or a lack of previous convictions is appropriate in your case. As noted, there is a previous conviction – a forgery in November 2017. While I note letters of support and other material before the Court, this is not a case where it can be said you are otherwise of good character or have made any positive contribution to society.

[27]   Defence next submit an allowance should be provided to take account of the time you spent on restrictive bail. You were on evening curfew for one year and nine months between late 2019 and August 2021. Subsequently you were required to report fortnightly to the Police.

[28]   Section 9(2)(h) of the Sentencing Act 2002 enables a further discount when an offender has spent time on EM bail. You were not subjected to EM bail and further, as became apparent during the course of the trial, you had not complied strictly with your conditions of bail. You shifted from the approved bail address without advising the authorities and without approval. I make no allowance for the bail conditions.

[29]   Next, counsel referred to the cultural report and the psychologist’s report prepared on your behalf. Both are largely based on your self-reporting.

[30]   The cultural report confirms disharmony in your background and family. You came to New Zealand with your parents when you were 11 years old and witnessed domestic violence between your parents. On your self-reporting you also suffered physical and emotional abuse at the hands of your father. There is nevertheless no clear nexus between that and the sort of offending you involved yourself in, in this case. Your offending in this case was influenced by your desire to extract revenge on the landlord. At most it might be said that the abuse you suffered may have distorted your sense of an appropriate response to situations of confrontation. However, you are, I accept, still relatively young at 32 and with appropriate support and acknowledgement on your part of your failings, you should be able to be rehabilitated.

[31]   The psychologist considers you are likely suffering from PTSD. However the report also notes that when completing psychometric testing, certain indicators fell outside the normal range suggesting you may not have answered in a completely forthright manner. Further, your response patterns were unusual and indicated a defensiveness about particular personal shortcomings, as well as an exaggeration of certain problems. You have a tendency to present yourself in a favourable light and appear reluctant to acknowledge personal limitations, which may lead you to minimise or even be unaware of problems or areas where your functioning may be less than optimal.  There are indications you tend to portray yourself in a consistently negative

or pathological manner. As a result there are concerns about distortion of the clinical picture you present.

[32]   Ms Ahlawat you may have some form of PTSD but your actions in this case, and the psychological report confirm that it did not prevent you from pursuing the deliberate and complicated course of action you pursued in this case.

[33]   You are clearly not remorseful at all. That is borne out by the PAC report which confirms you refuse to acknowledge the impact or the seriousness of your actions. Further, the comments in the psychologist’s report indicate you have not taken any responsibility for your offending, let alone recognise the impact it had on Mr Ewart and his family.

[34]   However, despite there being no clear nexus between your background and mental health issues and the offending, I am prepared to allow a further discount to take account of your limited criminal history, your relatively young age, the potential for rehabilitation, and your troubled personal background.

[35]   Ms Ahlawat please stand. On the charge of manslaughter you are sentenced to eight years, three months’ imprisonment. On the charge of arson you are sentenced to five years’ imprisonment. The sentences are concurrent. The effective sentence is eight years, three months’ imprisonment.

[36]Stand down.

Venning J