Charge:
Plea::

Murder

Not Guilty

Appearances:

A Perkins and Z Johnston for Crown
R Mansfield and P Davey for Prisoner Kumar
I Jayanandan and P Borich for Prisoner Permal

Sentenced:

7 May 2015
Life imprisonment - MPI - 17 years

SENTENCING NOTES OF VENNING J

Solicitors: Crown Solicitor, Auckland
Copy to: R Mansfield/P Davey, Auckland
I Jayanandan/P Borich, Auckland

R v KUMAR & PERMAL [2015] NZHC 954 [7 May 2015]

[1] Shivneel Kumar and Bryne Permal, you are for sentence having been found guilty of the murder of Shalvin Prasad. The only sentence appropriate is life imprisonment. The issue for the Court today is the minimum period of imprisonment that you must serve before parole can be considered.

[2] Just because that issue will be the focus of my comments I do not want you, the victim’s family (whose presence in Court I acknowledge), nor the media when reporting this sentencing, to lose sight of the fact that the sentence to be imposed on you is one of life imprisonment.

[3] Shalvin Prasad died as a result of being burnt alive on the 30/31st January

2013. The jury were presented with two scenarios upon which you would have been guilty of murder. Scenario A, that Mr Prasad was known by you to still be alive when you burnt him to death; and scenario B, that you attacked him earlier in the evening intending to kill him, thought you had done so and then burnt what you believed to be his dead body in order to dispose of the evidence.

[4] It was conceded by you at trial that Mr Prasad was alive when you burnt him to death. The issue was the level of his consciousness. Having heard the evidence I consider it more likely that Mr Prasad was deeply unconscious at the time you poured petrol over him and set fire to him. On that basis I accept there is a reasonable possibility you believed him to be dead at the time you set fire to him. That supports scenario B as the basis upon which the jury found you guilty of murder. I propose to sentence you on that basis.

[5] Mr Prasad was well known to you Mr Kumar. You had previously borrowed a significant sum of money from him. His family had taken steps to recover that money from you. Despite that it is apparent from the text messages exchanged between the two of you that he regarded you as a friend. He was seeking your friendship. The text messages disclose that you were clearly the dominant party in that relationship. The evidence discloses Mr Prasad was a naïve and trusting young man. As Mr Perkins described he seems to have been a thoroughly decent young man. You understood Mr Prasad’s need for friendship and you abused it. You somehow convinced him to…

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 Kumar

Details

AGLC: R v Kumar [2015] NZHC 954
Case: [2015] NZHC 954
Decision Date: 7 May 2015

CaseChat Overview and Summary

Shivneel Shahil Kumar and Bryne Bishnal Permal were convicted of the murder of Shalvin Prasad and brought before the High Court for sentencing. The court was required to determine the appropriate minimum non-parole period for their imprisonment under section 104 of the Sentencing Act 2002. Kumar and Permal conspired to rob Prasad of $30,000, which led to a brutal assault and ultimately his death by burning. The court found that the murder was part of a single transaction and therefore section 104 applied, mandating a minimum non-parole period of 17 years unless it would be manifestly unjust.

The court examined several factors, including the severity of the assault, the impact on the victim's family, and the lack of remorse shown by both defendants. Kumar, who was 18 at the time of the offence, argued for a reduced sentence due to his age and lack of prior convictions, but the court found his denial of responsibility and lack of remorse outweighed these mitigating factors. Permal, slightly older at the time of the offence, also argued for a reduced sentence based on his level of involvement, but the court found him equally culpable in the planning and execution of the crime. The court ultimately determined that a minimum non-parole period of 17 years was appropriate for both defendants.

Kumar and Permal were each sentenced to life imprisonment with a minimum non-parole period of 17 years. The court emphasized the gravity of their crime and the need for accountability and deterrence.

Orders