R v Kumar

[2024] NZHC 3253

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2024-004-287

[2024] NZHC 3253

THE KING

v

MITESH KUMAR

Hearing:	5 November 2024
Appearances:	R McCoubrey and A Crumley for the Crown R M Mansfield KC for the defendant
Date:	5 November 2024

SENTENCING NOTES OF CAMPBELL J

R v KUMAR [2024] NZHC 3253 [5 November 2024]

Introduction

[1]                 Mr Kumar, you pleaded guilty to a charge of attempting to murder your former wife, Ms Kumar, and on  two charges of failing to carry  out obligations in relation  to computer searches.

[2]My job today, on behalf of the community, is to sentence you for that offending.

[3]                 Before I do so, I acknowledge Ms Kumar’s family and friends, Ms Kumar herself, and in particular those who have spoken this morning. In a few minutes, I will say more  about how your offending has  affected Ms Kumar  and her family.  First,  I will describe your offending. This description may be confronting for some of those present, but it is something I have to so, as sentencing is a public process.

The offending

[4]                 Mr Kumar, you and Ms Kumar married in 2005. You have two children. You separated in February 2023. At the time of your offending 11 months later in January 2024, you and Ms Kumar were still going through divorce procedures and trying to resolve relationship property issues.

[5]                 You arranged to meet Ms Kumar at a McDonald’s restaurant in Mt Roskill  on 11 January 2024, with the promise that the two children would be present. At that time, Ms Kumar had not seen her children for four months.

[6]                 At about 7.40 pm that evening, you entered the restaurant and sat at a table waiting for Ms Kumar. Prior to entering the restaurant, you had armed yourself with a utility knife and concealed it in your left pants pocket. The knife had a retractable blade.

[7]                 As Ms Kumar approached the restaurant, she could see that the children were not with you. Because of this, Ms Kumar phoned you. You told her that the children were across the road. You convinced her to come in and wait for them inside.

[8]                 You then removed the knife from your pocket and concealed it under your left leg. Ms Kumar entered the restaurant and sat opposite you at the same table.

[9]                 You asked Ms Kumar about her accepting a lower divorce settlement offer. Ms Kumar did not want to talk about it. You then showed Ms Kumar a nude photograph of her on your phone and told her that you would show the photograph  to people if she did not take the lower settlement offer.

[10]            Ms Kumar stood up to leave. You stood up with her, removed the knife from under your leg, and then lunged forward at her. You grabbed Ms Kumar with your left hand and used your right thumb to extend the blade of the knife. You then slashed the knife across the left side of Ms Kumar’s neck three times.

[11]            You pushed Ms Kumar to the floor. She became trapped in a corner. You stood over her, grabbed her hair, and slashed at the left side of her neck with the knife three more times.

[12]            Members of the public tried to intervene. You told them “don’t stop me, just stay away” and threatened them with the knife.

[13]            You continued with your attack. You held Ms Kumar down whilst slashing the left side of her neck and body as she struggled to protect herself. As you did so, you told her in Gujarati “You’ve wrecked my life” and “You’ve lost my kids”.

[14]            During a brief pause in your attack, Ms Kumar attempted to sit up. You then re-engaged in your attack and repeatedly stabbed and slashed her neck  and throat, the back of her head and her upper body.

[15]            You briefly stopped attacking Ms Kumar because of a mechanical failure with the knife. You adjusted the blade of the knife and then continued to slash Ms Kumar’s neck, throat and body. After another mechanical failure, you paused your attack again to replace the blade. While you were doing this you stood over Ms Kumar, preventing her escape. After replacing the blade, you slashed Ms Kumar four more times to her neck and throat area.

[16]            You then paused for a short period of time, took a series of deep breaths, and again resumed slashing at the left side of Ms Kumar’s neck and throat. Members of the public confronted you. You adjusted the blade of the knife again and told them that you wanted Ms Kumar to die. You lunged towards them with the knife, causing them to retreat. You then turned back to Ms Kumar on the floor and slashed her neck three more times.

[17]            You stopped your attack when Police arrived, almost eight minutes after you began.

[18]            After being arrested, you failed to provide Police with the information required to access your two cell phones that had been seized during a search.

The victims

[19]            Ms Kumar suffered from multiple penetrating wounds to her neck, throat, left ear, back of her head and upper chest. She also suffered multiple wounds to her hands and arms from trying to protect herself.

[20]            Emergency responders from the Police and ambulance service saved Ms Kumar’s life. Surgeons then operated on her throughout the night.

[21]            Ms Kumar has spoken this morning about the many effects on her of your attack. She experienced intense pain during the assault and has endured ongoing extreme discomfort and pain ever since. For three months, she could not use her hands. During that time, Mr Kumar, she could not care for herself in the most basic of ways. She had to rely on others for that. That was deeply humiliating for her.

[22]            The wounds to her neck and throat meant that she could not lift her head without assistance. For four months, she could not feel half her face owing to nerve damage that you caused. Her physical injuries were such that sleeping was, and remains, very difficult.

[23]            Ms Kumar has had to have multiple surgeries. She has another surgery scheduled for this Friday. It will not be her last.

[24]            The effects of your attack on Ms Kumar are not just physical. When in public places, she now feels anxiety whereas she previously felt safe. She has nightmares and deep fears about what will happen when you are released from prison. Your attack has also caused Ms Kumar financial stress and  hardship, as she has not been able    to work since the attack. She has had to rely on the support of her family, about whom I will say more in a moment.

[25]            Your children were traumatized by your attack. You have damaged their sense of confidence and security. They have lost interest in school and in the sports that they used to love. They require counselling. One of them has cut off contact not only with you but with the rest of his paternal family.

[26]               I have heard from Ms Kumar’s parents and brother this morning about how your offending has affected them. Ms Kumar’s parents live in Fiji, where they operate a retail business. They came to Auckland as soon as they could after your attack. They are emotionally scarred from the sight of the injuries you inflicted on their daughter. They have been almost exclusively in Auckland looking after her ever since. Their lives have been turned upside down.

[27]            Ms Kumar’s twin  brother found it  heartbreaking to  see Ms Kumar unable  to look after herself. Watching her struggles has taken a significant toll on his own mental health.

Sentencing framework

[28]            In cases of serious violence such as this, denunciation and deterrence are important sentencing values.1 The sentence I impose should denounce your conduct, hold you accountable for the harm that you caused to Ms Kumar and others, promote in you a sense of responsibility for that harm, and deter others from committing similar offences. I must take into account the gravity of your offending, the seriousness of this type of offence as indicated by the maximum penalty (which is 14 years’ imprisonment for attempted murder). But the Sentencing Act 2002 also says I must impose the least restrictive outcome that is appropriate in the circumstances.

1      R v Taueki [2005] 3 NZLR 372 (CA) at [57].

[29]            Determining your sentence involves two steps.  First, I will determine what  is called the “starting point” for your sentence. This will be based on the seriousness of your offending – essentially, it will be based on what you did to Ms Kumar. Secondly, I will consider whether any adjustments need to be made to that starting point, such as for your guilty plea. This will produce your end sentence.

Starting point

[30]            There is no guideline judgment for sentencing attempted murder. That is because such offending covers a wide range of circumstances. However, guidance can be taken from a Court of Appeal judgment dealing with serious violent offending, R v Taueki,2 which the lawyers talked about in their written submissions. In Taueki, the Court of Appeal identified aggravating features that contribute to the seriousness of violent offending.

[31]Mr Kumar, your attack on Ms Kumar had six aggravating features:

(a)First, you used extreme violence. It was unprovoked. It continued for almost eight minutes, which I consider to be seriously aggravating.

(b)Secondly, there was a degree of premeditation and planning. You removed the knife from your pocket and concealed it under your leg. There was nothing impulsive about your violence. You continued despite the pleas of bystanders that you stop. You paused several times, including once to replace the blade, and then restarted your attack.

(c)Thirdly, you caused very serious injuries to Ms Kumar. These are having a long-term impact on her quality of life.

(d)Fourthly, you used a lethal weapon, which you brought to the scene. This is seriously aggravating.

(e)Fifthly, your attack was focussed on Ms Kumar’s neck and throat.

2      R v Taueki [2005] 3 NZLR 372 (CA).

(f)Sixthly, you breached Ms Kumar’s trust. As your wife of 18 years and the mother of your children, she should have been able to trust that you would not harm her. She was defenceless.

[32]There were no mitigating features of your offending, Mr Kumar.

[33]            In Taueki, the Court said that where there are three or more aggravating features, a starting point in a range of nine to 14 years’ imprisonment is usually justified. Given the number of aggravating features in your offending, the starting point for your offending clearly has to be in that range. This is so, even allowing for an element of double-counting between the level of your violence and the seriousness of Ms Kumar’s injuries.

[34]            The issue is where in that range it should be. Mr Mansfield KC says it should be ten years. Mr McCoubrey says 10–11 years.

[35]            I consider the starting point should be well into the range identified in Taueki, for three reasons. The first is the number of aggravating features. The second is that some of the features I have identified were seriously aggravating. The third is that in a later case, Taylor v R,3 the Court of Appeal said that the existence of a murderous intent in attempted murder offending means that a longer sentence is called for.

[36]            The lawyers have referred me to some useful comparator cases in their written submissions. They have done so because I must take into account the general desirability of consistency in sentencing. One of the cases is R v Walker, where the Judge adopted a starting point of ten years’ imprisonment.4 The offending in that case had some similarities to yours. However, I consider yours was more serious, because of your sustained targeting of Ms Kumar’s neck and throat and because of the degree of intent shown by you continuing your attack despite the blade breaking and despite attempts by members of the public to stop you.

3      Taylor v R [2017] NZCA 53 at [21].

4      R v Walker [2015] NZHC 3214.

[37]            I was also referred to R v Owens, in which the starting point was 11.5 years’ imprisonment.5 I consider your offending is only slightly less serious than in Owens, because in that case the victim’s injuries were more serious than Ms Kumar’s.

[38]            Taking account of all those matters, I consider the appropriate starting point for the attempted murder is 11 years’ imprisonment. I do not consider there is any justification for an uplift for the other two comparatively minor offences.

[39]            I now turn to consider what adjustments might need to be made to that starting point.

Credit for guilty plea

[40]I am required to give you credit for your guilty plea.

[41]            You were charged with attempted murder on 2 February 2024. You had your first appearance in the District Court on that charge that same day. You had your first appearance in the High Court on 21 February 2024, at which time Mr Mansfield indicated to the Court that the matter might resolve.

[42]            On 18 June 2024, Mr Mansfield told the Court he had received instructions that the matter would resolve. You pleaded guilty to the three charges on 10 July 2024.

[43]            Mr Mansfield submitted that you are entitled to the maximum credit of 25 per cent for your guilty plea. He said that time was required to explore potential issues relating to fitness to stand trial and sanity. He said the plea was sufficiently early to save Court time and the Crown’s witnesses from the ordeal of giving evidence.

[44]            In determining the extent of the credit to be given for a guilty plea, all the circumstances surrounding the entry of the plea, including its timing, should be considered. Your plea was entered relatively early, though it was not entered at the first reasonable opportunity to do so.   Given the circumstances of the offending,     it cannot have taken long for you to obtain advice on the charges.

5      R v Owens [2017] NZHC 319.

[45]            Your guilty plea has saved the witnesses from having to give evidence. For many of the witnesses, particularly Ms Kumar, giving evidence and preparing for trial would have been a very distressing prospect.

[46]            I accept Mr McCoubrey’s submission that your plea was  entered  in light of  a strong prosecution case and that this tempers the extent of the credit that can be given. There were several witnesses to the attack. It was captured on CCTV. The length of time of the attack, the severity of the injuries that you inflicted, and the statements you made in the course of your attack, made it clear that you intended to kill Ms Kumar.

[47]            Considering all these factors, the appropriate credit for your guilty plea is 20 per cent.

Mental health issues

[48]            Mr Mansfield also submitted that at the time of your offending you were unwell and of volatile or unstable mental health. He said your sentence should reflect this.

[49]            Mr Mansfield referred me to a psychiatric report prepared by Dr Karl Jansen. I have read that report carefully, as well as the other material that was submitted on your behalf by Mr Mansfield. Dr Jansen concluded his report by saying that the evidence available to him supported several diagnoses. One was adjustment disorder, which he explained is a dysfunctional response to a major stressor, in this case the marital failure. Another was obstructive sleep apnoea, which Dr Jansen said can have a major impact on mood. Dr Jansen also diagnosed some emotionally unstable and narcissistic personality vulnerabilities. Dr Jansen did not, however, suggest that any of these contributed causally to your offending.

[50]            I accept that you – and Ms Kumar – were experiencing major stress after the break up of your marriage. This happens to thousands of couples every year in New Zealand. The vast majority cope with it without resorting to violence of any sort, let alone the extreme violence that you engaged in against your former wife. This stress does not in any way lessen your culpability for your offending.

[51]            Dr Jansen’s report also says that you have struggled with alcohol and drug abuse and have had other significant stressful events in your life. However, there is again no suggestion in the report that any of these matters made any causal contribution to your offending. You told Dr Jansen, for example, that you had been drinking less since you separated from Ms Kumar.

[52]            I therefore decline to adjust the sentence for the matters raised in Dr Jansen’s report.

Previous good character, rehabilitation prospects and remorse

[53]            Mr Mansfield seeks credit for what he says was your previous good character. He says you should also get credit for remorse that you have shown and for your good prospects for rehabilitation.

[54]            The Sentencing Act says that I must take account of previous good character. Although you have some convictions for minor offending, the last of these was      22 years ago, and since then you have been gainfully employed and made some contributions to your community. Some adjustment to your sentence should be made for this, as it tends to show that you have good prospects for rehabilitation and a low risk of reoffending. I also acknowledge that you have taken some early but minor steps towards rehabilitation.

[55]            I do not accept that you have shown genuine remorse. You have written a letter to me, in which you start by saying that you have a profound sense of remorse. But you spend much of the rest of your letter trying to attribute responsibility to Ms Kumar for your loss of control. You also provide an account of the incident that differs from the summary of facts to which you pleaded guilty, saying that you put your hand in your pockets to control your frustrations and there was “coincidentally” a knife there.

[56]            Your lack of remorse is also evident from the pre-sentence report. The report writer said that at times you presented as a victim and that during your interview you focussed more on what you believed to be detrimental actions by Ms Kumar. I have also read a cultural report prepared by Pratima Nand. This reports that on the day of the offending you felt stressed out as Ms Kumar “kept demanding more and more

money” and that consequently there was no way out for you. So, again you are blaming Ms Kumar. It also reports that you accept that you “got carried away”. That is a shocking understatement, Mr Kumar. Finally, the report says you are showing signs of remorse for the emotional and psychological hurt you  may have  caused  Ms Kumar. There is no  “may” about it, Mr  Kumar,  and your failure to realise this  is very concerning.

[57]            Your lack of remorse tempers the credit I would otherwise provide for your previous good character and rehabilitation steps. Your prospects for rehabilitation are good in a general sense, and I agree with the pre-sentence report, and with what Mr Mansfield said, that you present with a low risk of reoffending in general. But I also agree with the report writer that your risk of harm to Ms Kumar is higher. That will remain so unless and until you accept that she, not you, is the victim in this matter and you experience genuine remorse for your actions.

[58]            In these circumstances, any credit against your starting point must be modest. I will allow 2.5 per cent. And I add, as Mr Mansfield said, it seems to me, Mr Kumar, it is going to be a matter for you to persuade the Parole Board that you are experiencing remorse and that you have rehabilitated yourself in a way that relates to Ms Kumar, not just to the community in general.

End sentence

[59]            This brings me to the end sentence. From the starting point of 11 years’ imprisonment I give you credit of 20 per cent for your guilty plea and 2.5 per cent credit for your previous good character and rehabilitation prospects. This produces an end sentence of eight and a half years’ imprisonment.

Result

[60]Mr Kumar, please stand.

[61]            For your conviction for the attempted murder of Ms Kumar, I sentence you  to eight and a half years’ imprisonment. For each of your convictions on the charges of failing to carry out obligations in relation to computer searches, I sentence you

to one month’s imprisonment. These sentences are to be served concurrently, which means that your total sentence is eight and a half years’ imprisonment.

[62]Mr Kumar, please stand down.

Campbell J