R v Krishna

[2023] NZHC 1205

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-092-007369

[2023] NZHC 1205

THE KING

v

VIKHIL KRISHNA

Appearances:

Y H Olsen for Crown

R M Mansfield KC (by VMR), K J Brosnahan and O W L Troon for Prisoner

Date:

23 May 2023

SENTENCING NOTES OF ANDREW J

R v KRISHNA [2023] NZHC 1205 [23 May 2023]

Introduction

[1]Mr Krishna, you may remain seated until I ask you to stand.

[2]        Mr Krishna, at the age of 25, you appear this morning for sentence having been found guilty by a jury on a charge of murder, the murder of Ms Trinity Oliver. Trinity was only 16 years old at the time of her death and you were then 23 years old.

[3]The charge of murder carries a maximum penalty of life imprisonment.1

[4]        Section 102(1) of the Sentencing Act 2002 requires me to sentence you to imprisonment for life unless such a sentence would be manifestly unjust. In this case, both counsel agree that life imprisonment is required; no submission is made on your behalf that life imprisonment would be manifestly unjust. I, too, am satisfied that I must impose a sentence of life imprisonment. and accordingly, that will be your sentence.

[5]        As you know, the critical issue I must determine today is the minimum period of imprisonment you must serve before becoming eligible for parole. Now I want to address the facts of the offending.

Relevant facts

[6]        In mid-June 2021, a relationship of sorts began between you and Trinity. At the time Trinity was 16 and you were 23. It is likely that the relationship was of an intimate nature. There was frequent contact between the two of you at this time, usually over the phone or by text messages.

[7]        In July 2021, Trinity called the Police following an incident in your vehicle. You lost your temper after Trinity’s puppy had an accident. As Trinity was trying to get out of the vehicle, you pulled her puppy off her, choking it in the process. You also pulled Trinity’s bag off her and she called 111.

[8]It appears that after this your relationship had largely come to an end.

1      Crimes Act 1961, s 172.

[9]        In early September 2021, during the COVID-19 level 4 lockdown, you began to message Trinity again. You asked her if she wanted to do drugs together and further texts you sent to her referred to using methamphetamine.

[10]      The two of you met up on the afternoon of Thursday, 9 September 2021. Trinity had agreed to meet you to smoke some drugs together.

[11]      Trinity returned home following the first meet-up on that day. You then picked her up for a second time at about 11.30 pm on Thursday, 9 September 2021, and Trinity remained with you over the next few days and until her death.

[12]      You first went to Flat Bush where a friend gave you a bag of methamphetamine. The next day the two of you visited various petrol stations around the South Auckland area and some of your associates at the Aorangi Motel in Kohimarama. Just after 1.00 pm Trinity sent a text message to her mother apologising and saying she would be home that night.

[13]      At 2.15 am on Saturday, 11 September 2021, your vehicle was captured on CCTV driving along Browns Road, Manurewa. At 2.20 am, you parked your vehicle in the driveway of 20 McVilly Road and turned the vehicle’s lights off. This was a secluded dead-end street adjacent to the Homai train station. Your vehicle remained there until 2.56 am, when you drove away. During that 36-minute period, you murdered Trinity.

[14]      What happened inside your vehicle during that time was the subject of significant  cross-examination  at  trial.   In  an  approximate  13-minute  period from

2.40 am to 2.55 am, and after taking sexualised pictures on your phone of Trinity alive in the vehicle, you became very angry. The exact reason for this remains unclear but it may be to do with your perception that she had lied about her age and wrongly told you that she was pregnant. You then subjected Trinity to a sustained assault, ultimately strangling her to death. During the attack Trinity unsuccessfully tried to fight you off.

[15]      The mechanism or method of strangulation was of course an issue at your trial. The Crown case was that you strangled Trinity by use of a ligature.  Your case was

that a ligature was not used; you said it was a case of manual strangulation, namely the use of a chokehold.

[16]      The Crown case rested principally on the evidence of its pathologist, Dr Tse. Despite being subject to lengthy cross-examination, his evidence was compelling and balanced.

[17]      This is, of course, a criminal case and the criminal standard of proof applies. I acknowledge the powerful arguments the Crown makes in support of its case that a ligature was used. However, I find and sentence you on the basis that the method of strangulation was a chokehold; an element of doubt remains. I am not satisfied beyond reasonable doubt that a ligature was used. I do find, however, and to the criminal standard, that you inflicted on Trinity a blunt force head injury, namely the focal traumatic axonal injury described by Dr Tse.

[18]      After the murder, you abandoned Trinity’s naked body on the secluded driveway at McVilly Road. You did not render assistance or call an ambulance.

[19]      In the days that followed, you gave a number of false, self-serving accounts as to what happened in your vehicle that morning. In addition to the various accounts you gave, you went to some lengths to distance yourself from the murder. This includes reporting to the Police that your vehicle had been stolen after the Police had located it and towed it away.

[20]      From the evening of Sunday, 12 September 2021, you remained largely at home in Papatoetoe where you conducted a number of Google searches. This included topics such as whether you can kill someone in a chokehold. You also sent a text to Trinity’s brother, Matty, asking if Trinity was okay and despite you not making any effort yourself to contact her. You also booked an airfare to Fiji.

[21]      On the day before you were due to depart New Zealand you were arrested by the Police and charged with Trinity’s murder.

[22]      In finding you guilty, the jury concluded of course that the Crown had established the necessary murderous intent. It was not, as Ms Olsen submits, a tragic accident. I do, however, agree with your counsel’s submission that it is likely that the jury convicted you on the basis of reckless murderous intent under s 167(b) of the Crimes Act 1961. I do not rely on the jury question/communication to reach that conclusion, but rather the overall balance of the evidence.

[23]      It is also clear from the evidence that at the time of the murder you were significantly under the influence of methamphetamine.

Victim impact statements

[24]      I have received and heard today victim impact statements from Trinity’s mother, Mrs Makareta Oliver, and from Trinity’s sister, Jasmin Wi-Mulqueen. Trinity was obviously a very loved and precious daughter and sibling – and as I have said, she was only 16 years old. Jasmin spoke of the severe impact of COVID-19 on the whanāu’s right and ability to grieve. The whanāu could not carry out its tangihanga process, including the laying of the tūpāpaku in their whare or marae.

[25]      Nothing I can say will change what has happened. The ongoing impact and toll of Trinity’s death and the circumstances of it will be embedded in the whanāu history and consciousness indefinitely. The grieving of Trinity’s whanāu inevitably continues to the present day. I thank all of them for their presence at the trial, despite its emotional toll. I acknowledge their heartfelt and sincere victim impact statements as part of this process of sentencing following the trial. I turn to address your personal circumstances.

Personal circumstances

[26]      I have received both a provision of advice to courts report, a PAC report, dated 24 March 2023 and recently an affidavit from your father. That affidavit helpfully provides information on your personal circumstances.

[27]      As I have noted, you are currently 25 years old. You are of Fijian-Indian descent. You were born in Fiji in 1998 and moved to New Zealand when you were

nine years old. Your parents and siblings all now live in Australia. They moved there in 2018. Your father notes in his affidavit that you remained isolated in New Zealand and that this isolation was particularly acute during the COVID-19 lockdown period.

[28]      Prior to being arrested in September 2021, you were working two jobs, one as a manager at a car valet and the other in traffic management. You were also half a semester away from completing a diploma in business leadership and management. You had hoped to start your own business in civil infrastructure.

[29]      As the PAC report notes, it is of concern that you have two previous convictions for assault. One of those involved your sister and the other a previous partner. Both offences occurred during the course of a dispute. The PAC report suggests that you have a propensity towards violence when there is tension.

[30]      The PAC report also indicates that relationships have been identified as an offending-related factor. You appear to have difficulty in problem solving and impulse control when there is conflict in a romantic relationship.

[31]      The PAC report further identifies your substance use and abuse as an offending-related factor. The report writer records you admitting to having used at least five grams of methamphetamine, along with other drugs and alcohol, in the nine days leading up to the offending, and with little sleep.

[32]      You were admitted to the Counties Manukau mental health facility – Tiaho Mai, on two occasions in 2016 and 2017 respectively. On each occasion you were diagnosed with drug-induced psychosis and prescribed anti-psychotic medication. One episode related to methamphetamine, the other to synthetic cannabis.

[33]      The Court has also received two reports from Dr David Menkes, a leading expert psychiatrist in the area of drugs and the brain and particularly the effects of a drug-induced psychosis. Dr Menkes – he gave evidence at trial – he concluded that your methamphetamine consumption and previously documented methamphetamine- induced psychosis in 2016 strongly suggests that you would have been vulnerable to a recurrence of a psychotic episode. In his second report of February 2023, Dr Menkes

expresses the view that it was possible, if not likely, that you were experiencing elements of drug-induced psychosis at the time of the murder, including paranoid thinking, irrational fear arising from faulty or exaggerated threat perception and, consequently, markedly impaired judgment.

Minimum period of imprisonment (MPI)

[34]      Where life imprisonment for murder is imposed, the minimum period of imprisonment must be not less than ten years.2 The MPI must be the minimum term required to satisfy any or all of the following sentencing principles for murder:

(a)Holding you accountable for the harm you have caused to the victim and the community;

(b)Denouncing the conduct in which you were involved;

(c)Deterring you against any future offending, and others from similar offending; and finally

(d)Protecting the public.

[35]      In addition, if one or more specified aggravating factors are present in your offending, then a minimum period of imprisonment of at least 17 years must be imposed unless it would be manifestly unjust to do so. Counsel for the Crown accepts here that s 104 of the Sentencing Act is not engaged so as to require the imposition of a minimum 17-year term. I agree. However, that does not diminish the effects and impact of this offending on everyone involved.

[36]      Instead, the Crown submits that the minimum period of imprisonment range for your offending is between 15-and-a-half to 16-and-a-half years’ imprisonment. Your counsel – you have heard him this morning – argues that the minimum period of imprisonment should be no more than 13 years.

2      Sentencing Act 2002, s 103(2).

[37]      As I have already noted, your sentence will be one of life imprisonment and not the minimum term that I am about to impose. It will be a matter for the parole authorities alone to determine when you will be released back into the community after the expiry of any minimum term.

[38]      The minimum term that I impose should be consistent with other comparable cases for persons who have committed similar offences. I must also take into account, in arriving at a final minimum term, any personal circumstances particular to you that might have a bearing on the ultimate sentence.

[39]      My assessment begins with the gravity of the offending and your culpability and that includes assessing any aggravating and mitigating aspects of your offending.

[40]      I have read all of the cases that have been helpfully referred to me by Crown counsel and by your counsel. These cases have been useful to me in deciding on your minimum period of imprisonment.3

[41]      Your offending involved a sustained, violent attack on Trinity, resulting in a significant number of injuries and ultimately her death. Serious violence was inflicted at her head preceding the fatal strangulation. Strangulation, albeit by way of a chokehold, is an aggravating factor.

[42]      There was also a degree of callousness to the offending in the way you abandoned Trinity’s naked body on the driveway at McVilly Road following the murder, without seeking help or medical assistance. You robbed her of her life as well as her dignity.4 You then went on to lie to friends and Police about what had occurred and took steps to flee New Zealand to avoid responsibility for her death.

[43]      While I accept, and it is agreed, that s 104 is not engaged, there is no doubt, in my view, that Trinity was vulnerable. As I have been emphasising, she was only 16 years old when you murdered her. She was alone and naked in your car in the early hours of the morning, on a secluded street during a COVID-19 lockdown. It appears

3      R v K [2020] NZHC 223; R v Ngatai [2020] NZHC 2106; R v Bonner [2012] NZHC 1589; R v Roper [2013] NZHC 1687; R v Jiang [2019] NZHC 3442.

4      See R v Bonner, above n 3, at [22].

that she had just been performing a sexual act on you. She obviously placed a high degree of trust in you by getting into the car with you on that day, particularly after she had made clear to you that you had broken her trust on a previous occasion. You were also in a position of physical dominance, being physically bigger and stronger than Trinity.

[44]      Having said that, the degree of brutality, vulnerability and callousness involved in your offending is not to the same level as that in the case of R v K.5 That also was a case where s 104 was engaged.

[45]      I agree with the Crown’s submission that there should be some uplift, in this case six months, for the previous convictions for domestic violence.

[46]      Having regard to all of these circumstances, I find that the starting point for the MPI should be 15 years’ imprisonment.

[47]      I now address the issue of whether there are any mitigating personal circumstances that might justify a lesser minimum term of imprisonment as the final outcome.

[48]      I have noted at the time of your offending, you were 23 years old.   As       Mr Mansfield submits, while not a youth as defined at the time of the offending, you fell into the category of young people that the Court of Appeal refers to in the recent Dickey case,6 as “emerging” or “young” adults. In the Dickey case, the Court accepted that there are neurological factors, relating to the development of the brain, that put young people in a different position to adults when it comes both to susceptibility to offending and prospects of rehabilitation. Long sentences can have a particularly crushing effect on young people, but on the other hand, young people also have greater capacity for rehabilitation as their character is not yet fully formed.7

5      R v K, above n 3.

6      R v Dickey [2023] NZCA 2 at [76].

7      R v Dickey, above n 6, at [85]–[87].

[49]       I agree with the submissions made by Mr Mansfield on your behalf that some of these neurological factors are likely to have been relevant to you and to your offending.

[50]      I accept that some discount should be given for your relative youth. However, I do agree with the Crown submission that a restrained approach is required.

[51]      As I have said, there is no doubt that you were significantly under the influence of methamphetamine at the time of the murder, and I have also referred of course to your associated mental health history.

[52]      The Crown correctly notes that under s 9(3) of the Sentencing Act the Court cannot take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of any drug. However, as the Court of Appeal recently held in the case of Berkland,8 background factors such as addiction can mitigate sentence where such factors have contributed causatively; that is, where they help to explain in some rational way why the offender came to offend, and the Court noted that that standard is not unduly rigorous.

[53]      At the time of this offending, you had been on a “bender” for some days. The report of Dr Menkes provides support for the view that at the time of the murder you were experiencing some elements of drug-induced psychosis, including irrational fear from faulty or exaggerated threat perception. There is evidence of a history of prior methamphetamine use. The use of methamphetamine over several days and your predisposition to psychosis does help to explain in some rational way why the offending occurred here. In my view, some discount ought also to be given for your drug addiction and existing mental health issues.

[54]      Finally, I note that ultimately you have shown some remorse for your actions and taken responsibility for Trinity losing her life. The PAC report notes that you were devastated and horrified and wished now that you could “go back”. You have expressed a wish to apologise to the victim’s family, and I record that I have received

8      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

this morning the letter from you, and I note that you have expressed a sincere apology to the victim’s family in that letter.

[55]      Taking all of these factors into account, I conclude that there should be a discount of 12 months from the starting point of a minimum term of 15 years. That results in a final minimum period of imprisonment of 14 years’ imprisonment.

Conclusion and sentence

[56]Mr Krishna, would you please stand.

[57]      Mr Krishna, for the murder of Trinity Oliver, I sentence you to life imprisonment with a minimum period of imprisonment of 14 years.

[58]Please stand down.

Andrew J