R v Alahakoon

[2013] NZHC 2316

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-009-002323 [2013] NZHC 2316

REGINA

v

MUDIJANSELAGE VIRAJ WASANTHA KUMARA ALAHAKOON

and

THUVAN PRAWESH SAWAL

Hearing:                   6 September 2013

Counsel:                  B M Stanaway and K B Bell for Crown

PHB Hall QC and K H Cook for Accused, MVW Alahakoon
J Brandts-Giesen and A McCormick for Accused, T P Sawal

Judgment:                6 September 2013

SENTENCING REMARKS OF WHATA J

[1]      Mr Alahakoon and Mr Sawal, you have both been found guilty of murder and arson. 1

[2]      Mr Alahakoon, you have been found guilty also of assault with a weapon and of male assaults female.  Given, however, the seriousness of your other offending, I adopt  the  Crown’s  submission  and  simply  convict  and  discharge  you  on  those matters.

[3]      Turning then to the sentencing of you both on the murder and arson; the circumstances of the murder demand a sentence of life imprisonment.  The focus of

this sentencing today is the minimum term that you must serve.

1      This is an anonymised version of the original judgment. Some details have been redacted.

REGINA v ALAHAKOON and SAWAL [2013] NZHC 2316 [6 September 2013]

[4]      As to arson, the maximum penalty is 14 years imprisonment.  Given that the murder and the arson flow from essentially the same events, the sentence for arson will be concurrent with the sentence for murder.

Facts

[5]      Both of you were friends of the victim, Mr Battelage.  At some time in 2011, Mr  Alahakoon,  you  discovered  that  your  wife,  [Ms  ...]  had  an  affair  with Mr Battelage.  You were plainly incensed by this and physically assaulted your wife on at least two occasions including by cutting her hair to shame her.

[6]      Mr Sawal,  you  were also aware of the affair  between  Mr Battelage  and [Ms ...],  and  in  fact  you  developed  your own  friendship  with  her,  at  one stage inviting her to join you late one night while you were at the Alahakoon residence. By this time you, Mr Sawal, and Mr Alahakoon had become close friends.  Mr Sawal you were unemployed and spent most days with Mr Alahakoon in his garage which was his place of work as a jewellery maker.   I have little doubt that the topic of [Ms ...] infidelity was a matter of discussion between you.

[7]      While it appears that previously both of you had a good relationship with Mr Battelage, in the months leading up to the murder neither of you had made much contact with him preferring, it appears, each other’s company.   However, on the Sunday before the murder, Mr Battelage visited your house Mr Alahakoon for the purpose of purchasing some jewellery from you.  That was then followed the next day with a trip by both of you to Mr Battelage’s home in Oxford.  A can of petrol was taken with you on that trip.  Mr Battelage was not home when you arrived, but you both entered his home and waited there. You did not think it necessary to text or phone Mr Battelage about your arrival at his home.  When he did not return home within an hour or so, you left and returned to your respective residences.

[8]      Undeterred, you both decided to visit Mr Battelage on Wednesday.   You arrived  at  Mr  Battelage’s  residence  in  the  early  evening  but  at  a  time  when Mr Battelage was engaged in a Skype conversation with a friend in the United States.  He acknowledged both of you to his friend.  You then travelled together to a local pub to watch the cricket.  Video footage records in clear terms what you were

wearing at the time of your visit.  This would prove significant, as the clothes worn by you, Mr Sawal, were later found with a number of stains caused by blood from Mr Battelage.

[9]      After  a  few  drinks  and  having  watched  the  cricket,  you  returned  to Mr Battelage’s address.   There, it appears, you all drank some alcohol and played some pool.  Both of your accounts given at trial record that Mr Battelage decided to get some rest on a couch in the lounge somewhere between 2.00 am and 3.00 am in the morning.  Mr Battelage was then attacked by at least one of you with multiple stabs to his chest and throat including a deep, fatal cut across the base of his throat. The true extent of the violence visited upon Mr Battelage cannot be known, because of the subsequent arson.

[10]     In  this regard, one of  you  retrieved the petrol  can  from the car, doused Mr Battelage with petrol and set him alight.  The subsequent fire caused substantial damage, but a cloth wrapped around Mr Battelage’s neck preserved the evidence that his throat had been cut by one of you.

[11]     You both then left the scene somewhere between 3.00 am and 4.00 am in the morning.   You both returned to Mr Alahakoon’s residence where he obtained a change of clothes for you, Mr Sawal.  The clothes that you wore at the murder scene, together with some items belonging to Mr Alahakoon, were then disposed of in rubbish bins and other places near to the former residence of your partner, Mr Sawal, in the red zone.

[12]     It did not take the Police long to identify you both as suspects, with video footage placing you in Oxford, the location of the murder and arson, on the night in question and on the previous Monday evening.

[13]     The evidence placing you at the murder scene was so overwhelming that you both conceded at the beginning of the trial that you were there, but your defence was to blame the other for the acts of murder and arson.

Background

[14]     I now turn to your respective personal histories.

Mr Alahakoon

[15]     Dealing with you first Mr Alahakoon.   I have had the benefit of a detailed pre-sentencing report.   This provides both insight into your history and to your response to the murder.

[16]     Mr Alahakoon you are a 35 year old Sri Lankan man who moved to New Zealand in about 2002.  You were joined by your wife in 2004 and you have two sons  aged  seven  and  five.   You  are  a  jewellery maker  by trade,  most  recently working from the garage of your home.

[17]    Your wife, [Ms ...], was also interviewed for the purposes of your pre- sentencing report.   She said it has been difficult both financially and emotionally since your remand.  She was very upset about your assaults on her and showed the reporting officer scars on her arm.  I do not refer to these, but simply note that your wife confirms that you have assaulted her and that while she loves you and feels sorry for you she feels she needs to protect her sons from you.

[18]     Your biological family continue to reside in Sri Lanka and up until your remand you continued supporting them.

[19]     In terms of your offending you continue to deny that you killed Mr Battelage or were otherwise involved in his murder.  The report notes that you say you feel sorry for the parents, but the report writer considers that any remorse is not heartfelt or genuine given that you continue to blame Mr Sawal.

[20]     In relation to the matters against your wife you acknowledge your anger upon discovering that she had had an affair with Mr Battelage.  You do not deny cutting your wife’s hair but you do not consider that you hurt her.  Apparently you observed that in your culture she would have been thrown on a fire for her infidelity and you said that she said to you that you could punish her in any way you chose.

[21]     You have a prior conviction for threatening to kill your wife.

[22]     The report writer then addresses your needs and motivation to change.  The report writer observes that there is no doubt that you were under the influence of alcohol during the commissioning of offences, particularly against your wife.  It is said that you minimised your involvement and have shifted responsibility on all matters, indicating that if your wife had not been unfaithful you would not have had to cut her hair. You remain adamant that Mr Sawal is guilty of the murder and arson.

[23]     The   report   then   observes   that   due   to   your   lack   of   insight   and acknowledgment programs cannot be suggested that might benefit you at this time. A sentence of imprisonment is recommended.

Mr Sawal

[24]     Mr Sawal in terms of your background, you are a 25 year old Sri Lankan citizen.  You arrived in New Zealand in January 2009.  Initially you took part in a

12 month course on computers.   During this time you commenced a relationship with an older woman, resolved to stop studying, and seven months later moved to Christchurch and subsequently married her in April 2010.  As a consequence of this relationship you were granted a one year work visa.   In about February 2011 you started a relationship with another woman.   You state that you were in a serious relationship and wanted to start a family with her.  But by this stage your work visa had expired and you were no longer able to remain in employment.  You have had minimal contact with her since she gave evidence at your trial.

[25]     Your report observes that the consumption of alcohol featured predominantly in your offending.

[26]     You are currently subject to a protection order in relation to [Ms ...] and her children. You have also admitted to prison staff to having ties with the Mongrel Mob and you have been involved in four separate incidents of assault.  These matters have been managed internally and are not relevant directly to my sentence.

[27]     In  terms  of  the  offending  you  maintain  your  innocence  and  have  not expressed any remorse.  When questioned over the impact that your offending would have placed on the victim’s family you stated:

I should write to them a letter something, and say sorry your son has died.

At which point the reporting officer reported you laughed.

[28]     The report writer observes that in terms of your need and motivation to change you have a limited criminal history bar the current offending but nevertheless you were assessed as being at high risk of reoffending and harm to others given the nature of the current charges, your lack of insight and continued claims of innocence.

Victim impact statements

[29]     I have now had the benefit of the victim impact statements from Nilantha Chandrasena, Chris and Odette Reilly and [Ms ...] and also a statement from the family.

Nilantha Chandrasena

[30]     Nilantha is Mr Battelage’s brother.  He speaks of the considerable emotional and financial harm done as a consequence of the murder.  He speaks about the fact that his parents worked hard to give both him and Mr Battelage a good education. He talks about how he brought Mr Battelage or “Rassy” to work in New Zealand so that they could both help family in Sri Lanka to build a home which they achieved. He also talks about the big plans they had to do other things together and the loneliness he now feels without Rassy.  He talks about how Rassy was such a good person and that it is hard to believe that something like this could happen to him.  He speaks of the sadness he felt at not being able to have an open coffin in Sri Lanka. He talks about how Rassy was the only brother he had and that he and his family are still suffering from what happened.  He feels lost without his brother.

Mr and Mrs Reilly

[31]     Chris and Odette Reilly talk about how they employed Mr Battelage, known to them as Sammy, as a herd manager.  They describe the fateful morning and how they were woken up by a neighbour about a fire at Sammy’s house.  They speak of the trauma following the murder. They talk about the significant financial loss which they have suffered as a consequence of the arson.   They estimate that the cost to them of the arson well exceeds [$.....] including for the lost house and earnings.  [...] Significant anxiety was caused by the thought of having to give evidence and it was a huge relief to them that they were not required to do so.  They speak of Sammy as a gentle and kind person always smiling.  They talk about how he had an amazing affinity with animals and that children liked him.  They continue to struggle with the knowledge that such an evil act was committed against such a gentle person.

Mr Alahakoon’s wife

[32]     [M   ...]   talks   about   the   emotional   harm   caused   by   your   offending, Mr Alahakoon.  She talks about how the cutting of her hair was very spiteful and yet you did it to humiliate and punish her as you knew that you were both going to be travelling to Sri Lanka.   She was also very upset when you hit her in front of the boys.   She says that your relationship is now over and that she has obtained a protection order.   She says she is still trying to overcome the total impact of your behaviour over all the years.  She says that she is very scared to trust people in her life now.

Family statement

[33]     As I have said, a family statement has also been tabled with the Court.   It narrates the history of a loving and much loved son, who through impoverished circumstances, strove to better himself and his family through hard work and then a life in New Zealand.  They are unable to fully express the sadness that they feel at his loss.

Framework of assessment

Purposes and principles of sentencing

[34]     I am now going to describe the framework of my sentencing.

[35]     I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002.  There is a clear need to denounce your offending and to hold you accountable for the harm that  you have done.   This sentence is intended to promote a sense of responsibility in both of you for that harm.  There must be deterrence, both against future offending by you and against others who might act similarly.  As it appears inevitable that you will be deported after the completion of your sentence, I do not have to consider the protection of the public.

[36]     The sentence imposed upon you must be consistent in kind and length with those imposed on others who have offended in a similar way.  I must consider the gravity of your offending and your culpability.   I must also take into account any circumstances that might make an otherwise appropriate sentence disproportionately severe and any effects that the offending has had upon you.

Murder

[37]     There are also specific principles that I must apply in relation to murder set out at ss 102-104 of the Sentencing Act.

[38]     Section 102 of the Sentencing Act provides a presumption in favour of life imprisonment.  This must be displaced only if such a sentence would be “manifestly unjust”.  No such injustice exists here, so the sentence for both of you is one of life imprisonment, as I have said.

[39]     Section 103 provides that the minimum sentence must be no less than ten years, and must be a minimum term necessary to satisfy four key purposes, namely:

(a)       To hold you accountable;

(b)      To denounce your conduct;

(c)       To deter you from committing the same or similar offence; and

(d)To protect the community – though as I have said, as you are likely to be deported after serving your sentence, that is not a feature of this sentencing.

Section 104

[40]     But before I consider a minimum sentence under s 103, I must consider whether one or more of the circumstances of s 104 of the Sentencing Act apply.  If they do I am required to impose a minimum period of imprisonment of at least

17 years unless I am satisfied that it would be unjust to do so.

[41]     The first step for me to assess is the degree of culpability in the particular case in relation to that involved in the standard range of murders.2   In doing so I am looking at the aggravating factors of s 104 to the extent that they are present and any other applicable aggravating and mitigating factors.  If the result of the assessment is that a non parole period of not less than 17 years is appropriate, the second step is for me to ask whether the minimum term of 17 years would be manifestly unjust, and if so, what lesser period is justified.  I also acknowledge that the circumstances must be exceptional to qualify under s 104.

[42]     I consider that two factors of your joint offending engage s 104: (a)   The level of planning involved; and

(b)      The callousness and brutality of the murder.

[43]     As to planning, I accept the submissions of the Crown on the following matters:

2      R v Williams [2005] 2 NZLR 506 (CA).

(a)       Both of you were aware of the affair that the deceased had with

[Ms ...] since at least mid 2011;3

(b)       There is evidence that you both discussed the affair;

(c)      You both went to see the deceased on Monday night and that this involved an unannounced visit to Oxford and that there was evidence that you took a petrol can with you;

(d)      Two  nights  later  you  again  travelled  to  Mr  Battelage’s  house

unannounced and again a petrol can was taken with you; and

(e)      Both of  you spent a significant period of time with the deceased before killing him.

[44]     I would add that on the night of the offending you gave Mr Battelage the impression that you had something sinister in mind, so much so that he texted friends expressing concerns about your presence at the home.  It appears however, at least from your own accounts that he had been lulled into a false sense of safety by the early hours of the following morning.

[45]     While   it   must   be   said   that   your   planning   was   unsophisticated   and incompetent, it is difficult to explain the two unannounced trips, the petrol can, the method of the murder, and then the arson as anything but a clearly calculated endeavour.   I note that other murders, involving similar or less obvious planning,

have triggered s 104.4

[46]     I also consider that the circumstances of the murder involved a high level of callousness for two reasons.  First, on both of your accounts Mr Battelage was very probably asleep or resting on his couch and intoxicated at the time he was attacked. He was plainly in a vulnerable position.  Second, while the physical evidence does not suggest a high number of stab wounds, the fatal cut described by the expert

pathologist  as A1  on  the  diagram  that  I  will  attached  to  my  sentencing  notes,

3      Should read “mid December 2011”.

displayed in my view, a clear intention to, in effect, execute Mr Battelage.  Indeed the wound was so severe that defence counsel accepted at trial that it could only be explained as murder and not manslaughter.

[47]     I acknowledge the  authorities  cited  to  me by defence counsel,  including R v McKee5   where  a  more  frenzied  attack  involving  28  stab  wounds  was  not considered sufficiently callous to trigger s 104.   But it is the cold and calculated nature of the murder in this case, of a vulnerable friend, which is most disturbing and shocking to the public conscience.   It is also comparable to other cases where the deliberate nature of the  murder of a sleeping  victim  qualified  under s  104,  for example the case of Hamidzadeh v R.6

[48]     I was invited by Mr Hall QC to differentiate between you for the purposes of sentencing.  I accept that it is available to me to find that you, Mr Sawal, delivered the fatal cut.   But it is equally available to me to find that this was a planned endeavour for which both of you must be equally culpable.

[49]     I have considered whether there is anything in the circumstances that might mean it would be unjust to impose a minimum sentence of 17 years. There are none. While you are relatively young Mr Sawal you are plainly mature for your age and hardened to your circumstances.  Mr Alahakoon there could be said to be mitigating circumstances in your case given the infidelity.  But you completely deny the murder and you do not identify any provocation or emotional distress that might warrant a reduction in the minimum sentence.

[50]     In  these  circumstances  I  am  obliged  to  impose  a  minimum  sentence  of

17 years.

Section 103

[51]     For completeness I also evaluated your minimum term of sentence in light of the factors listed at s 103, namely:

5      R v McKee HC Christchurch CRI 2007-009-017060, 7 August 2008.

(a)      It is plainly necessary to hold you both accountable for the harm done to Mr Battelage and to  the community and to  the Reillys by the offending;

(b)It is equally plain that your conduct must be denounced in strong terms;

(c)      Equally you must be deterred from committing similar offending in the future.

[52]     I also consider that the method of disposal of the body by way of arson in an attempt to avoid detection is a seriously aggravating factor. As a result of the arson I cannot fully evaluate the nature of the injuries and the suffering caused to the victim. The Court must be concerned to deter that type of conduct.  Further, as I have said, even on your own accounts, the victim was entirely vulnerable to an attack from you, likely to be intoxicated and asleep at the time of the attack.  These factors combined with the level of planning I have identified, mean that a minimum non parole period in the order of 14-16 years is an appropriate reference point for your minimum sentence, as Mr Brandts-Giesen appeared to accept.

[53]     It is then necessary to set your sentence by reference to the totality of your offending, including the arson.   I have taken into account that the purpose of the arson was to cover up the murder.  I have already taken that into account so I do not double count that aspect.   However, I consider that the totality of the offending deserves a further uplift of 12 months, given the danger the arson presented to the public and to the Reilly family, and the harm done to them.

[54]     Accordingly, had I adopted a s 103 minimum sentence, it would have been in the order of 15-17 years in any event.

Arson

[55]     As to the sentence for the arson, I view this as inherently connected to the murder offending.  It was plainly an attempt to avoid detection.  I also agree with the Crown that the following factors are aggravating:

(a)      In addition to the “cover up,” there was a degree of premeditation and planning and there was the real risk of danger to the public, both to the fire fighters and to the Reillys;

(b)There  was  also,  as  the  Crown  submits,  a  significant  amount  of damage and loss suffered by the owners, both financially and emotionally.

[56]     Having regard to the abovementioned factors, together with the principles and purposes of sentencing, I consider that a sentence of seven years, to be served concurrently with  the  minimum  sentence  for  the  murder  is  appropriate  for  this offending.

Personal factors

[57]     I  do  not  consider  that  there  are  personal  factors  either  aggravating  or mitigating that might warrant a further uplift or reduction in the starting point.

[58]     Plainly neither of you are remorseful.

[59]     I acknowledge that Mr Alahakoon has convictions for threatening to kill and assault.   But I consider that this offending is of an altogether different nature and scale and so not a reason to uplift your sentence Mr Alahakoon.

Overall assessment

[60]     Accordingly, my overall assessment is that I am obliged by law to impose a minimum sentence of 17 years.  I have considered whether I should uplift this to take into account any particularly aggravating features or to reflect the totality of the offending.   But I consider that any greater sentence would be unjust, and disproportionate to the offending.

[61]     Therefore,  Mr  Alahakoon  and  Mr  Sawal  please  stand.     You  are  both sentenced to life imprisonment with a minimum non parole period of 17 years.

Solicitors:

Raymond Donnelly & Co, Christchurch

PHB Hall, Christchurch
Brandts-Giesen McCormick, Rangiora