R v Narayan HC Auckland CRI 2009-057-2305

[2010] NZHC 1219

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-057-2305

THE QUEEN

v

SALESH NARAYAN

Charges:         Sexual violation by rape (6);

Sexual violation by unlawful sexual connection (5); Aggravated burglary; Threatening to kill; Kidnapping; Indecent assault

Plea:               Guilty

Appearances: Rachael Reed for Crown

Patrick O'Sullivan for Prisoner

Sentenced:     9 July 2010

Sexual violation - 11 years imprisonment
Aggravated burglary, kidnapping, indecent assault - 4 years
Threatening to kill - 3 years imprisonment (all terms concurrent)

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown

O'Sullivans Lawyers (Hamilton) for Prisoner

R V NARAYAN HC AK CRI-2009-057-2305  9 July 2010

Introduction

[1]      Mr Narayan, you appear for sentence today having entered pleas of guilty to six counts of sexual violation by rape, five counts of sexual violation by unlawful sexual connection, one of indecent assault, one of aggravated burglary, one of kidnapping, and one of threatening to kill.  The maximum sentence available on any one charge is 20 years imprisonment.

[2]      You will be sentenced today on the totality of your offending.   In other words, the sentences imposed will not be additional to or cumulative upon each other; instead, in accordance with standard practice, they will be concurrent or to be served side by side.  But there will be one lead offence identified and that will set the end sentence.

[3]      Before dealing with the formal parts of the sentencing, I acknowledge in Court today the presence of your victim, M, her relatives and friends, and the officer- in-charge, who has provided great assistance.  I also acknowledge the quality of the submissions, both written and oral, that I have received from Ms Reed for the Crown and Mr O'Sullivan for you.  I want you to understand that I regard Mr O'Sullivan's work as most important and very much in your best interests.

Facts

[4]      I must deal first with the facts.  They will dictate the length of the sentence.  I make no apology for dealing with them in detail.  Even though the complainant, M, and her supporters are present in Court, I must recite them carefully for the benefit of others.  I acknowledge that for M it may revive many dreadful memories.  However, her presence today is a sign that she accepts the necessary process.

[5]      Mr  Narayan,  on  Wednesday  25 November  2009  M  was  at  her  house  in Waiuku.   She was alone and watching television.   At the time you were staying nearby.  She had never previously met you.  The lights in her house were turned off. She heard her dog bark.  She got up to investigate.  She saw you at the end of the hallway.   You ran towards her, carrying what she understood was a knife.   She

thought it was a silver knife.   In fact, she later learned that it was a white plastic knife.

[6]      She struggled with you.  You overpowered her.  You dragged her by the hair to the spare bedroom at the back of the house. You held a knife to her neck.  You told her to remove her clothing and get on the bed.  She had no choice but to comply. She told you that she had her menstrual period.  That did not deter you.  You ripped the tampon away from her body and threw it on the floor.  You told M to lie on the bed on her back.  You lifted both her legs up in the air and you got on top of her. You then directed that she place your penis into her vagina.  She did not do as you asked.  You nevertheless enforced penetration of your penis into her vagina, all the time behaving more roughly.

[7]      Eventually you stopped.   You pulled M off the bed.   You then pushed her into the master bedroom.  At that stage you used the implement in your hand.  You jabbed her in the back with the knife and forced her to move.  You pushed her on to the king size bed.   Again she refused your direction to place your penis into her vagina so you then placed your penis into her mouth and forced her to perform oral sex.

[8]      You then led M around the house with the knife prodding into her back. When the dog barked you told M to silence him.  At one stage you asked her directly whether she wanted to die.  The dog stopped barking.  You responded by kicking it twice in the stomach causing it to run away.  Then you closed all the windows and curtains.  You forced M back into the master bedroom.  You told her that she would be calling in sick the next day.  You also said that she would not leave the house alive.

[9]      You continued to sexually violate her in the bedroom.  You forced your penis into her anus.  As might be expected, she screamed.  Your response was to tell her that if she continued she would be dead.  As she was being sexually violated M saw the knife was on the bed next to your leg, so she grabbed it and kicked out at you. You managed to wrestle the knife from her, causing cuts to her hands.  At one stage

you opened the curtains slightly.  You told her that you wanted her to see the sky as she would not be leaving the house alive.

[10]     She tried to fight you off.  At one stage she managed to grab a picture frame and hit you across the head.   This enraged you, so you punched M in the mouth causing cuts to the inside of her lip.  You forced her on to her front and you had anal sex with her.

[11]     Once this finished you led M into the shower.  To compound your cruelty, Mr Narayan, you turned the shower temperature on to very hot.  You directed M to wash her breasts and genitalia.  Once she had done this you pushed her into the spare room and told her to lie down.  She told you that she was having trouble breathing because of the blood from her mouth.  This did not deter you.  You sexually violated her again.  Fortunately, because M was saying that she could not continue to breath, this event did not last long.

[12]   You then clothed yourself.   While you were doing this M pushed you backwards.  She was able to escape and run naked to the neighbour's house for help. The  police  made  inquiries  afterwards.    They  located  you  at  a  nearby  address occupied by your stepfather and mother.  You denied the offending but during the interview the police noted that you had bite marks on your chest and upper arm. You were later arrested.  The police carried out forensic tests.  Those tests confirmed beyond any doubt whatsoever by use of DNA sampling that you were the offender. Your fingerprints matched those found at the address.   Furthermore, M identified you positively from a photograph montage.

[13]     I  mention  these  things,  Mr  Narayan,  because  earlier  in  the  week  you indicated that you wished to apply to vacate the pleas of guilty you entered earlier this year.  Mr O'Sullivan sought leave to withdraw.  However, most obligingly at my request, he took further instructions from you.  You have confirmed to him that you do not wish to vacate your pleas.  You acknowledge your guilt.  You explain your recent conduct as being the result of depression, which I understand.   However, I want you to know that you never had an arguable defence to these charges.   You now admit that you were M's attacker.

Starting Point

[14]     Against that background, Mr Narayan, I must come to the starting point for your sentence.  The starting point is the term of imprisonment appropriate to reflect or recognise your wrongdoing - that is, the circumstances of the offending by themselves - before any personal circumstances are taken into account.

[15]     The task of setting a starting point is made a little easier because counsel are not far apart.  Ms Reed for the Crown submits that the appropriate starting point is in the range of 17-18 years; Mr O'Sullivan says it should be lower, at 14 years.

[16]     The starting point must take into account the aggravating features of your offending.   There are many.   It is unnecessary for me to recite them in detail. However, there are, as Ms Reed emphasised today, three of particular importance. First, there is the multiplicity of offending and  its nature.   Second, there is its duration - I accept her advice that it lasted for roughly two-and-a-half hours.  Third, and most significantly, there is the harm you have caused to M.  She spoke to you directly this morning.  Her words were from her heart.  I simply want to record one aspect of what she has written:

He [that is you] has ruined my life and he has ruined my family's life too. My mum has got a heart problem.  My sister is a mess and I have got family flying over from Australia to come and see me.  My dad is ready to kill him. It's tough on them too because they are the ones having to put up with me screaming and crying.

I am fine one minute and then the next minute I'm not.  Stuff just randomly comes up in my mind and parts of what happened.

If I have to move to Australia I will stay with family.   I don’t want to be alone.  It's a scary thought when the light goes out.  My mum sits there with me for quite a while because I get scared at every noise.  I can hear every noise.  I just freak out; even when people walk close to me I jump.

[17]     Those  are  her  words.    They  are  confirmed  by  a  clinical  psychologist, Ms Mafi.  Her conclusion should be recorded as well:

[M] has suffered from symptoms of depression since soon after the offences occurred and this depression has deepened over the ensuing months.  She has low mood and difficulty participating in or enjoying recreational activities. She has been on anti-depressant medication since soon after the offences

occurred.   She feels detached from others and self conscious in public as though strangers know what has happened to her.   She has a sense of defilement from the offences and has blamed herself for the offender gaining access to her home.

These offences have had profound emotional impact on [M].  She is a person who, prior to these offences, was well adjusted, successful in her work and had a job she really enjoyed.  She had a good group of friends, and an active social life.  She had recently moved into a home she liked and had a steady boyfriend.   She has lost her job and her ability to work, has had to move from  her  home  and  community.    She  has  difficulty  sleeping,  eating  or leaving the house.  She is in a constant stage of vigilance with almost hourly reminders of the offences that have changed her life.  Before her is a long journey of reducing intrusive recollections, achieving a lowered level of emotional arousal and improved mood, restoring normal patterns of sleeping and eating, improving concentration and then gradually reclaiming aspects of her former life.

[18]     Mr Narayan, that is the result of two-and-a-half hours of gross cruelty and depravity.   I do not subscribe to any view that you acted out of a sense of sexual gratification.   You know that you acted from an urge to damage and destroy, to exercise power and control over somebody who was helpless.  And you knew that your victim was vulnerable, she was alone, and she was at risk.  It is difficult to find words to describe your depravity and the consequences.  I hope that while serving a lengthy term of imprisonment you reflect every day on the damage you have caused to an innocent woman.

[19]     Both Ms Reed and Mr O'Sullivan have referred me to decisions in the Court of Appeal.  All are familiar to me, including the recent tariff case of R v AM.1   It is unnecessary to jump through the hoops of identifying ranges and starting points.  In my judgment, based on a familiarity with the leading authorities, the appropriate starting point for the offence of rape, taking all factors into account - that is, your violence, your home invasion, the multiplicity of the offending, and the harm caused

- is 16 years imprisonment.

Mitigation

[20]     Against  that  you  are  entitled,  as  you  have  heard,  to  certain  credits  or discounts.  First and foremost, there are your pleas of guilty.  They are a sign of your

1        R v AM (CA27/2009) [2010] NZCA 114.

remorse.   Today, as M noted, you had the courage to face her directly when she spoke to you.   Observing that exchange, I accept that you do feel contrition and regret for what you have done.  You are entitled to a substantial allowance for it.  As the officer-in-charge will have explained to M, the law gives a big discount for pleas because they spare her and her family and friends the ordeal of reliving this experience in a courtroom.

[21]     Mr Narayan,  you  have  refused  to  co-operate  with  a  probation  officer  in preparing a pre-sentence report.  However, I know sufficient from Mr O'Sullivan to be able to say this.  You are aged 32 years.  You are a Fijian Indian national.  You have been in New Zealand since 2008.   You have no previous convictions in this country, or to my knowledge elsewhere.  Inevitably you will be deported at the end of this sentence.

[22]     Taking all these factors into account, I am satisfied that you are entitled to a credit or a discount against the starting point of 16 years of five years imprisonment. Thus the final sentence to be imposed is 11 years imprisonment.  It is to be allocated as being 11 years on each of the charges of sexual violation by unlawful sexual connection  and  rape;  four  years  on  each  of  the  charges  of  indecent  assault, aggravated burglary and kidnapping; and three years on the charge of threatening to kill.  As I said to you at the start, those sentences are to be served concurrently, or side by side.  The end sentence will be 11 years imprisonment.

Minimum Term

[23]     Finally,  Ms  Reed  has  submitted  that  a  minimum  term  is  appropriate. Mr O'Sullivan opposes.  Again, Mr Narayan, I am very familiar with the sentencing principles and leading authorities in this area.   Without doubt, a minimum term is appropriate.  In my judgment the minimum term that you should serve before being

eligible to apply for parole is six years imprisonment.  Please stand down.

Rhys Harrison J