R v Kamal

[2014] NZHC 698

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-044-000743 [2014] NZHC 698

THE QUEEN

v

KUMAR ANAL KAMAL

Hearing:	8 April 2014
Appearances:	B R Northwood for the Crown J B Wickliffe for the Defendant
Judgment:	8 April 2014

SENTENCING NOTES OF GILBERT J

R v KAMAL [2014] NZHC 698 [8 April 2014]

[1]      Mr Kamal, you appear for sentence having pleaded guilty to one charge of attempted murder.   The maximum penalty for attempted murder is 14 years’ imprisonment.

Brief facts

[2]      On 16 February 2013 at about 7.00 pm, the victim, your wife, returned home with her 20 year old daughter.   You were at home waiting for her and had been thinking about killing her.  This was because two days earlier she had told you that she did not want to have intimate relations with  you  as a result of which  you suspected that she was having an affair with another man.   You had considered killing her by strangulation. You had also considered chopping into her neck but had abandoned that idea because you did not think it would feel right.

[3]      When your wife returned home you confronted her and accused her of seeing another man. An argument developed and you twice threatened to kill her. You then took a 30 centimetre long chef ’s knife from the kitchen bench before grabbing the victim by her hair and dragging her into the bedroom, shutting the door behind you. You made her sit on the bed and you stood in front of her.  When she swore at you, you became even more enraged and  you stabbed her four times with the knife attempting to kill her. You intended and expected her to die as a result of the injuries you inflicted.

[4]      The victim called out to her daughter for help and ran out onto the driveway where she was attended to by neighbours.  You then walked out of the room and told the victim’s daughter what you had done and told her to call the police.  You put the knife down on the kitchen bench and waited in the driveway for the police to arrive.

Victim impact

[5]      The victim suffered a deep laceration to her forearm and puncture wounds to her abdomen and chest.  She also received a laceration on her head, just above her ear.    She  was  taken  to  hospital  where  she  underwent  emergency surgery for  a laceration to her liver.

[6]      The victim continues to suffer terribly as a result of what you did to her.  At the time you attacked her she was terrified, knowing how violent you can be, she feared for her life.  She was also very worried about her daughter’s safety.  She has suffered considerable pain as a result of her injuries and continues to do so.  She was unable to drive for three months and has only recently been able to return to work. She says that she will never forget what you did to her and her family.  She continues to experience flashbacks and has difficulty sleeping.

Principles and purposes of sentencing

[7]      In sentencing you today, I must take into account principles and purposes of sentencing set out in the Sentencing Act 2002.   In cases such as this, involving serious violent offending, issues of deterrence and denunciation are particularly important.   I must hold you accountable for what you have done and impose a sentence that will serve to deter you and others from offending in this way.   The sentence should reflect society’s abhorrence of this sort of offending.

[8]      So far as possible, I should impose a sentence on you that is consistent with sentences imposed on others for similar offending.

Starting point

[9]      There  is  no  set  tariff  for  attempted  murder  because  of  the  range  of circumstances in which this offence may be committed.   However, the Court of Appeal  has  issued  a  guideline  judgment  for  cases  involving  serious  violent offending.1    The  Court  set  three  bands  with  increasing  levels  of  seriousness depending on the presence and extent of various aggravating factors.  This approach is appropriate in cases involving attempted murder.  The sentencing exercise requires an evaluative process, not a formulaic one.   This means that in determining the appropriate starting point I must evaluate the seriousness of any aggravating features

rather than simply focusing on the number of them.

1      R v Taueki [2005] 3 NZLR 372.

[10]     I consider that your offending involved the following aggravating features:

(a)      The extent of the violence:   after taking the knife, you grabbed the victim by her hair and dragged her into the bedroom before stabbing her four times to the chest, abdomen and head.   You only stopped when you thought that she would die. You explained to the police that the reason for stabbing the victim was “to kill her, as simple as that.”

(b)      Premeditation: you had considered killing the victim in various ways and you were waiting to confront her when she arrived home with her daughter.   This offending involved some degree of planning and forethought.

(c)      The  extent  of  the  injuries,  including  psychological  harm:  I  have already described the injuries sustained by the victim and the extent of her suffering which is continuing.

(d)      The use of a weapon: you used a 30 centimetre long chef’s knife.

(e)      Vulnerability of the victim: you are considerably bigger and stronger than your victim and have martial arts training.  You were also armed with a knife. Your victim was defenceless and vulnerable.

[11]     I consider that your offending falls at the upper end of band 2 or the lower end of band 3 of the Court of Appeal’s guideline judgment in Taueki.  This indicates that a starting point of between nine and 11 years would be appropriate.   Having regard to comparable cases of attempted murder, I consider that the appropriate

starting point in your case is nine years’ imprisonment.2

Personal factors

[12]     I have read the pre-sentence report.  You were born and raised in Fiji.  You married the victim in early 2012 and then came to New Zealand.   The Probation

2      R  v  Kahn  CA83/02,  4  December  2002;  R  v  Nelson  HC  Rotorua  CRI-2004-077-0015577,

16 August  2005;  R  v  Fotuaika  HC  Wanganui  CRI-2008-083-000073,  22  October  2008;
R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009.

officer  considers  that  your  offending  was  an  isolated  incident,  unlikely  to  be repeated.   The probation officer reports that you have not shown any propensity for violence, apart from this incident.

[13]     You are 44 years of age and have no previous convictions in New Zealand. The Probation Service is not aware of you having any convictions in Fiji either.  This is to your credit.

[14]     I have also read the reports from Dr Goodwin and Dr Brinded.  It is clear that you experienced difficulties adjusting to an alien culture and suffered from considerable stress as a result of the deterioration of your relationship.  While these were clearly contributing factors in your offending, they cannot in any way excuse what you did.

Guilty plea

[15]     Although you did not plead guilty until 19 February 2014, a year after you were charged, the Crown accepts that you are entitled to a full discount for your guilty plea.  The Crown accepts that it was reasonable for you to defer the entry of a guilty plea until after you had the opportunity of considering the psychiatric report directed by the Court.

[16]     In the circumstances, I am prepared to allow a discount for your guilty plea of

25  per  cent.    This  results  in  an  end  sentence  of  six  years  and  nine  months’

imprisonment

Sentence

[17]     Mr Kamal, on the charge of attempted murder, I sentence you to six years and nine  months’ imprisonment.    The  Crown  does  not  seek  a  minimum  period  of

imprisonment and I agree that this is not required in your case.

M.A. Gilbert J