R v Desai - [2012] NZHC 1062

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-002402 [2012] NZHC 1062

THE QUEEN

v

UDAY KRISHNANKANT DESAI

Hearing: 17 May 2012

Counsel: A Perkins and J Donkin for the Crown
U K Desai in person
P Dacre as Amicus Curiae

Judgment: 17 May 2012

SENTENCING NOTES OF WOOLFORD J

Solicitors/Counsel:
Meredith Connell, Auckland for the Crown
Mr P Dacre, Auckland – Amicus Curiae for the Prisoner

Copy to:
Mr U Desai, 80571259 PRN, Foxtrot 1, Cell 15. Mt Eden Corrections Facility, Private Bag 92625, Symonds Street, Auckland 1150.

R V DESAI HC AK CRI-2011-092-002402 [17 May 2012]

Introduction

[1] Uday Krishnakant Desai you appear for sentence having been found guilty at trial of one count of murder, one count of threatening to kill and one count of assault with a weapon. Those charges carry maximum penalties of life, seven years and five years imprisonment respectively.

Facts

[2] Mr Desai, the victim in this matter was your wife of 27 years, Titiksha Uday

Desai, with whom you have a 20 year old daughter.

[3] In about 2007 you started travelling to Australia regularly for work. You decided in 2008 that it would be better to relocate there. Your wife, however, did not want to move. Eventually, you and your daughter did move to Australia and your wife remained behind in the home you jointly owned with her. You became estranged and there were ongoing issues between you regarding the division of matrimonial property.

[4] On 13 February 2011, you returned to New Zealand from Australia on a one way ticket without luggage, having given up your accommodation in Australia and sold your belongings. You hired a car at Auckland Airport and travelled directly to a supermarket where you purchased a screwdriver set to assist you to break into the marital home and a box-cutter knife you would later use to kill your wife.

[5] After ruminating overnight and for much of the next day, during which time you remained in the rental car, at about 9:45pm on 14 February 2011, you entered on the property occupied by your wife and spoke to a tenant in a unit at the rear of the property. You then went to the marital home and smashed a glass pane in the front door with an empty beer bottle. You entered the house and went directly to your wife’s room and confronted her. You asked her to confess to unspecified wrongs. You then dragged her through the house to the back porch.

[6] When you got outside, your wife started screaming for help. You reacted by slashing her about the throat and upper body with the box-cutter knife you were carrying. The blade broke at the outset of the assault but you continued to assault her using the remnant of the blade.

[7] The tenant, hearing the commotion, armed himself with a golf club and confronted you. You attempted to continue your attack, even as your wife lay fatally injured on the ground. Other…

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.

Continue reading R v Desai

Details

AGLC: R v Desai [2012] NZHC 1062
Case: [2012] NZHC 1062
Decision Date: 17 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Uday Krishnakant Desai was convicted of one count of murder, one count of threatening to kill, and one count of assault with a weapon. The court had to decide on the appropriate sentencing for these serious offenses, which carry maximum penalties of life, seven years, and five years imprisonment, respectively. The legal issues involved determining whether the provisions of section 104 of the Sentencing Act 2002 applied, which would mandate a minimum period of imprisonment for the murder charge. Additionally, the court had to balance the purposes and principles of sentencing with the specifics of the case, including the gravity of the offenses, the degree of the offender's culpability, and the impact on the victim and her family.

The court found that section 104 was indeed engaged due to the lengthy planning involved in the murder. The offender had meticulously prepared for the crime, including relinquishing his job, accommodation, and possessions in Australia, and purchasing the murder weapon prior to his arrival in New Zealand. Although the court did not find the entry into the dwelling to be unlawful, it considered the home invasion as an aggravating factor. The court rejected the notion that the brutality of the assault reached the high level required by section 104(1)(e). Ultimately, the court concluded that imposing a minimum term of 17 years was not manifestly unjust. The offender received a sentence of life imprisonment for murder, with a minimum term of 17 years, and concurrent sentences of two years for threatening to kill and 18 months for assault with a weapon, resulting in an effective minimum term of 17 years.

In summary, the court sentenced Uday Krishnakant Desai to life imprisonment for murder with a minimum term of 17 years, reflecting the serious nature of the crime and the need for accountability and deterrence. The additional charges were addressed with concurrent sentences, ensuring the overall punishment was commensurate with the severity of the offenses.

Orders