R v Prasad

[2018] NZHC 3225

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-009-008327

[2018] NZHC 3225

THE QUEEN

v

SHIU PRASAD

Hearing:	7 December 2018
Appearances:	M N Zarifeh and S Bicknell-Young for the Crown A M McCormick for the Defendant
Judgment:	7 December 2018

SENTENCING REMARKS OF NATION J

Introduction

[1]        Mr Prasad, you are for sentence after pleading guilty to one charge of murder and one charge of wounding with intent to cause grievous bodily harm.

Facts

[2]        You married the victim, Ms Naicker, in December 2013. On 8 September 2018, you had an argument which resulted in Ms Naicker moving out of the home and saying she no longer wanted to be in a relationship with you.

[3]        I accept you were devastated by this. The manager at your work recognised how distressed you were and allowed you to take a week off work. You went to Fiji

R v PRASAD [2018] NZHC 3225 [7 December 2018]

to talk over matters with your family. You also talked to your wife’s family. That brought you no comfort and, after two days, you returned to New Zealand.

[4]        Over the course of the following week, you sent Ms Naicker a number of text messages and attempted to call her over a hundred times. She did not respond to most of these calls and messages. In the messages, you told Ms Naicker you still loved her, challenged her about having a new boyfriend, and threatened to expose her infidelity to her family in Fiji. You also threatened to commit suicide. You wrote two suicide notes which were later found by Police.

[5]        On 15 September, Ms Naicker’s new boyfriend, Mr Sharan, who is the second victim, walked to Ms Naicker’s place of work on Ilam Road with the intention of meeting her between shifts. You drove past Mr Sharan and stared at him. Although Mr Sharan had never met you, he correctly guessed your identity because of concerns Ms Naicker had raised to him. He called Ms Naicker and they agreed to meet at the Bush Inn mall instead.

[6]        Later, while Ms Naicker and Mr Sharan were walking back from the Bush Inn mall, you again drove past and saw them together. You returned home and sent Ms Naicker a text message challenging her about seeing her with another man. After consuming two glasses of wine, you decided to confront Ms Naicker at her place of work. You took a kitchen knife with a 21 cm blade, with the intention of stabbing her.

[7]        While lying in wait in some shrubbery outside Ms Naicker’s workplace, you drank a bottle of wine. During this time, Mr Sharan arrived to pick Ms Naicker up from work. It appears you and Mr Sharan did not see each other at this point.

[8]        At 7:45 pm, Ms Naicker exited the front door of her workplace and met Mr Sharan. Almost immediately, you ran up behind them and stabbed Ms Naicker in the back with the knife, causing two lacerations to the mid and lower back. You then attacked Mr Sharan, stabbing him in the head and inflicting a large wound. When Mr Sharan fell to the ground, you stabbed him a further four times, once in the upper right chest, twice in the back and once in the right upper arm. Mr Sharan fought back and

yelled at Ms Naicker to run away. She ran towards a vehicle on Ilam Road but was unable to get in.

[9]        You then started chasing after Ms Naicker and caught up with her about 80 metres away from where you had first stabbed her. You stabbed her in the abdomen multiple times. She also sustained wounds to her arms and hands as she tried to fight back.

[10]      Mr Sharan and bystanders tried to intervene but you threatened them with the knife. Witnesses heard you yell “It’s ok, it’s ok, she’s my wife” and “it’s ok, I’m going to die with her. We are going to die together.” When you stopped your assault, you stood up, said “I’ve nothing left… I will kill myself”, lifted your shirt, stabbed yourself four times in the abdomen, and threw the knife away. You then lay down next to Ms Naicker, cradling her head in your arms.

[11]      Ms Naicker died in the ambulance at the scene. You obviously survived your injuries, as did Mr Sharan.

[12]      In explanation, you told Police you were angry and your “mind was not right”. You admitted your intention was to hurt your wife with the knife and, when asked if you meant to kill her, you said it was “hard to say”. You claimed you could not recall stabbing Mr Sharan but admitted that, if he had been stabbed, it was you who did it. You said you did not intend to hurt him and that you were “only after” your wife. You said you had made the “biggest mistake of your life”.

[13]      Mr Sharan received a number of serious stab wounds which required suturing: one to the temple, one to the right side of the chest, two to the back, and two to the arms and shoulder. He also received another arm and shoulder laceration which did not require suturing, and grazes to the knees and knuckles.

[14]      Ms Naicker received six substantial stab wounds, two of which ruptured organs, caused internal bleeding and led to her death. Other wounds were to the arm, lower abdomen, the right side of her mouth and tongue, index finger, and the sacrum.

Pre-sentence report

[15]      You have not previously been convicted of any criminal offence. Based on this, Community Corrections assess you as at a low to medium risk of reoffending, but this would increase to high should you enter into an intimate relationship with a female. Given the seriousness of the offending, you are assessed as a high risk to others. You have indicated you want to remain alone for the rest of your life due to the harm you have caused.

[16]      The report writer says that, while you accept the summary of facts, you stated it was not your intention to kill Ms Naicker or harm Mr Sharan. You said your intention was to commit suicide in front of Ms Naicker, but the situation escalated when you saw her with Mr Sharan. You expressed regret for your offending, saying “it should not have gone that far” and that you “loved Ms Naicker very much.”

[17]      You reported you are willing to undertake treatment in prison. An alcohol screening test placed you in the moderate risk category. While the pattern of alcohol use you described was insignificant, your consumption of alcohol increased after the breakup to cope with feelings of depression. While you denied, in talking to the probation officer, any specific plans to commit suicide, you said that you pray every night that you will not wake up in the morning.

[18]      The report writer said it is difficult to gauge whether your remorse is genuine or whether you are just feeling regret as a result of the consequences you now face. You also placed some blame on you wife, saying that she should not have been with another man. You have gone on record stating you are willing to undertake restorative justice and will apologise to Mr Sharan if given the opportunity.

Victim impact statements

[19]      Today, I had handed to me a letter which you have written in which you say, from the bottom of your heart that you are very sorry and remorseful for your actions which led to the death of your wife. You say how you will engage in rehabilitation programmes in prison and how, again, that you have decided never to be in any other relationship again. Your letter concluded with the paragraph:

I thank you and hope you will consider what marriage breakdown does to a person and how heartbroken I was before you hand out the sentence to me.

[20]      Mr Prasad, I can say to you that I understand how upsetting it could have been, and it was obviously for you, at finding out that your marriage had broken down. But, you are not here because you were upset at the breakdown of your marriage. You are here, and other people have suffered, because of the way you chose to deal with that upset and the actions you took. They were not just a mistake, they were criminal and they have had devastating effects on all the people whose victim impact statements you heard read out today, and no doubt others.

[21]      The Court received and heard read six victim impact statements. You have heard about the effect your offending has had, not only on your victims, but psychologically, emotionally and financially on their friends and families.

[22]      As I said, what you did was not just a mistake, it was criminal, selfish, and intensely destructive in the most serious of ways.

[23]      In contrast to the way you acted stand the acts of those people who saw what was happening on the street and, in the heat of the moment, did not pass by, but stopped, went to help your wife and did their best to intervene in a situation that must have been frightening for them.

[24]      I note particularly what I heard in victim impact reports as to how what happened has affected them. All I can say is try and rest assured that you did all you could.

[25]      The land lady, from whom you and Ms Naicker rented a home for some two and a half years before these events, described you as appearing a very happy couple, very pleasant and friendly. It is a huge tragedy for Ms Naicker’s family and all who are victims of your offending that you could not cope with her desire to leave the marriage then chose to act as you did. You did not act in a similar way about 10 years ago when an earlier marriage with the mother of your two children ended.

Sentencing for Murder

[26]      Section 102 Sentencing Act 2002 states that an offender convicted of murder must be sentenced to life imprisonment unless such a sentence would be manifestly unjust. There is no dispute here that such a sentence is appropriate.

[27]      Section 103 requires the Court to impose a minimum period of imprisonment. It must be no less than 10 years, and must be the minimum term the Court considers will satisfy “all or any” of: holding the offender accountable for the harm caused, denouncing the conduct, deterring the offender or others, and protecting the community from the offender.

[28]      If one of the factors set out in s 104 is present, the minimum period of imprisonment must be at least 17 years unless such a sentence would be “manifestly unjust”. And you have heard Mr Zarifeh for the Crown saying that one of the factors in s 104, brutality and callousness, is present and so the Crown says there must be a minimum period of imprisonment of at least 17 years. So, I must consider whether s 104 is engaged.

Is s 104 engaged?

Crown Submissions

[29]      As you heard, Mr Zarifeh for the Crown submits that, pursuant to s 104(1)(e), “the murder was committed with a high level of brutality, cruelty, depravity, or callousness”, and thus that minimum term of 17 years must be imposed unless that would be manifestly unjust.

[30]      He noted in his written submissions that callousness has been defined as a “hardened state of mind”, a “want of feeling and insensibility” and a “numbness of the soul”.1 He submits that the use of a knife, the number and nature of the wounds inflicted, and the fact your victim took some time to bleed to death are all relevant in

1      R v Frost HC New Plymouth CRI-2007-043-471, 9 April 2008 at [30]; R v Frost [2008] NZCA 406 at [37]; R v Mason [2012] NZHC 1849 at [44].

assessing callousness and brutality.2 The surrounding circumstances can also be taken into account.3

[31]      Mr Zarifeh cites a number of cases where s 104(1)(e) has been engaged in support of his submission that the threshold is reached in this case. It is not necessary for me now to summarise the facts of those cases. I have considered them carefully.4

[32]      Mr Zarifeh submits that the offending in your case was motivated by obsession and possessiveness. In addition to the comments already recorded, he notes that in your Police interview you said “I decided if she is not mine, I don’t want her to be with anyone”.

[33]      He says the attack was vicious and sustained. Ms Naicker did not die immediately and would have been terrified for her life as she was chased 80 metres down the road, having already been stabbed. Further, you seriously injured another person who tried to help Ms Naicker.

Defence submissions

[34]      Mr Prasad, your counsel Mr McCormick submits that s 104 is not engaged. He addresses each of the cases cited by Mr Zarifeh, distinguishing them on the facts. Again, I do not need to set out the particular circumstances of each case that he says makes these other cases different and more serious than yours but I have carefully considered those submissions.

[35]      Mr McCormick submits that there were no background factors that can inflate the brutality or callousness of the offending. No child was involved and you had no connection to any of the bystanders.

[36]      Mr McCormick submits that your actions are correctly characterised as a reckless murder. He submits that, although you wanted to cause Ms Naicker harm and knew death might ensue, this was not your intention.

2      R v Gottermeyer [2014] NZCA 205 at [90].

3      R v DFL HC Auckland CRI-2004-44-8643, 134 June 2006 at [26].

4      R v McSweeney [2007] NZCA 147; Akash v R [2017] NZCA 122; Christison v R [2017] NZCA 168.

[37]      In support of his submission that s 104 is not engaged, Mr McCormick cited three cases and referred to the circumstances of those cases.5

Analysis

[38]      I have considered those submissions and the cases carefully. Mr Prasad, I consider yours is a case which is finely balanced as to whether s 104(1)(e) is engaged.

[39]      I do not accept Mr McCormick’s submission that this was a reckless murder or, even if it was, this makes the murder less serious. You sought out your victim at work, lying in wait with a knife. The summary of facts, which you have accepted, states that at this point you intended to use the knife on the victim. You have admitted you wanted to cause her harm with the knife. This is not a case like others where, in a burst of anger, the offender has grabbed a weapon and used it on the victim. Your attack was premeditated, the weapon and circumstance selected well ahead of time.

[40]      After carrying out a sustained attack on your wife, you saw her running away and chased after her in order to inflict more blows. You told the Police, as I said, that you decided that, if she was not going to be yours, you did not want her to be with anyone. The most obvious explanation of the events is that, by this time, you had formed an intention to kill your wife. At the very least, you wanted to continue attacking her and stabbing her in ways that you knew could cause her death. That second stage, which probably included the fatal blows, was not however as premeditated as the initial attack.

[41]      Nevertheless, the question for me is whether, in comparison to other cases, your actions meet the threshold of a high level of brutality or callousness. It is trite to say that all murders involve these characteristics to some extent. As already mentioned, ‘callousness’ has been described previously by the courts as ‘a want of feeling and insensibility’, a ‘numbness of the soul’ and a ‘hardened state of mind’. The term ‘brutality’ speaks for itself, and goes more to the extent of the violence.

5      R v Tiumalu HC Wellington CRI-2005-091-581, 9 November 2006; R v Meads HC Hamilton CRI- 2009-019-8828, 31 March 2011; R v Rajamani HC Auckland CRI-2005-004-1002, 25 July 2008.

[42]      I agree with Mr McCormick’s submission that the callousness exhibited by your actions is at a lower level than most, if not all, of the cases cited by the Crown. In Gottermeyer, the fact that there was a child in the house, and the offender’s actions after the offending in leaving the child in the house with its mother dead on the floor, showed a particular want of feeling. In Akash, McSweeney, and Christison, the actions of the offenders after the offending, in an attempt to avoid detection, or in gloating about the offending, similarly elevated the offending over what might be considered an ‘ordinary’ level of callousness in similar cases.

[43]      There are aspects of your offending that exhibit a degree of callousness. Your calculation in lying in wait for your victim until she finished work shows a moderate level of planning. As I said, this was not a heat of the moment attack, you had plenty of time to think about what you were doing and change your mind. Although, I do note that perhaps you had to fortify yourself in some way through alcohol to do what you did. There was also a degree of callousness in your resuming the attack by chasing after your victim despite her cries for help. There was also callousness in the way you threatened to attack those who attempted to intervene. Nevertheless, in many ways, your offending was the result of an excess of misdirected and perverse feeling rather than a lack of feeling. In contrast to some of the other cases, when you knew your wife was going to die, you wanted to kill yourself. Your actions after the murder, in cradling your victim in your arms and admitting what you had done, are in stark contrast to the actions of the offenders in Akash, Mc Sweeney and Christison. I do not consider ‘high degree of callousness’ correctly reflects your actions in comparison to other very serious murders.

[44]      I also accept your counsel’s submission that the cases cited by the Crown, on the whole, involved higher levels of brutality. The number and extent of the injuries suffered by the victims in those cases was higher, and the attacks were sustained over longer periods. Many also involved a history of abuse and a cycle of protection order breaches, which is absent in your offending.

Section 103 sentencing

[45]      As I have found s 104 does not apply, I must determine the appropriate minimum term of imprisonment under s 103. Whatever the minimum, your sentence is of course life imprisonment. Whether you are ever released from prison will depend on the decision of the Parole Board and whether or not they consider you pose a risk to the public. Even if you are released, you will be subject to conditions that restrict your freedom for the rest of your life. Any further offending could lead to you being recalled to prison to continue serving your life sentence.

[46]      In fixing a minimum term, I must consider how much more than the minimum ten year period is necessary to achieve the purposes of denunciation, deterrence, protection of the community, and to hold you accountable for the harm you have caused.

[47]      To the extent it is relevant to those purposes, I am required to take into account the aggravating and mitigating features of your offending. I do not consider there are any mitigating features. The aggravating features are the moderate degree of planning/premeditation, the level of violence, and the extent of the loss and harm caused to your victims, their loved ones, and the community more generally.

[48]      Taking the murder charge on its own, I agree with Mr McCormick that there are strong similarities between your offending and that in Tiumalu, which attracted a minimum term of 14 years. While the extent of the injuries was greater in that case, there was not the same premeditation.

[49]      Another case with similarities is R v Ram.6 The Court found s 104 was not triggered and, with reference to other cases, adopted a starting point of 12 years.

[50]      Your offending was more serious than there. Although the injuries inflicted were similar, again, your offending exhibits a greater degree of premeditation.

6      R v Ram [2015] NZHC 2813.

[51]      A case with striking similarities is R v Singh.7 In that case, the offender suspected his wife of having an affair. I need not go through all the other relevant circumstances but it is because of those circumstances that I refer carefully to that case.

[52]      There, the Crown did not submit that s 104 was engaged. The Judge took a starting point of 12 and a half years. On the attempted murder charge, relating to someone who was with the person who was killed and thus a victim who survived, the Judge uplifted the minimum term by two years, noting that, on its own, it could attract a finite sentence of eight to nine years. An 18-month discount was allowed for an early guilty plea, resulting in a minimum term of 13 years.

[53]      Although very similar, I consider your primary offending was somewhat more serious than in Singh. The violence inflicted was greater, and it occurred over two stages, with you chasing after your helpless and already injured victim in what must have been an extraordinarily terrifying few moments for her. Despite the number of blows being greater, your victim took longer to die and would have been in terrible pain.

[54]      Taking into account these cases and the cases cited by both counsel, I consider the appropriate starting point is 13 and a half years. I will uplift that by 18 months to reflect the attack on Mr Sharan. Although that attack is almost indistinguishable from the secondary attack in Singh, the uplift must be lower to recognise the charge here was for wounding with intent to cause grievous bodily harm. In Singh, the other charge was attempted murder. I consider the attack on Mr Sharan, on its own, falls within band two of the guidance from the case Taueki, which attracts starting points of five to 10 years, and this will be reflected in the final but concurrent sentence which I imposed.8

7      R v Singh [2015] NZHC 2369.

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

Discounts

[55]      Mr McCormick has submitted that you should be given credit for your remorse. He says your DVD interview evidence shows your actions “were those of a man reeling from a broken heart”. He says your attempted suicide at the scene further demonstrates your despair and regret. He referred to a case of R v Lamont as authority for this.9

[56]      I do not consider any discount is warranted for remorse. In Lamont, no discrete discount was given despite the fact that the offender attempted suicide twice after the murder. French J there merely took it into consideration in deciding to award a 10 per cent discount for a guilty plea. However, I consider the suicide attempt was not borne out of just remorse for your actions. The major factor was the despair you felt about the fact your wife had left you. On your own admission, you had formed an intention to end your own life after coming back from Fiji in the week before you killed your wife. Nor do I consider a discount for remorse is warranted on any other grounds. As noted above, the pre-sentence report was sceptical as to the genuineness of your remorse and insight and that is actually consistent with what I make of the letter you put before me.

[57]      You pleaded guilty at an early stage. Your first appearance in the High Court on these charges was on 5 October 2018. You pleaded guilty on your next appearance on 9 November 2018. In Singh, Woolford J helpfully discussed the approach to guilty plea discounts in murder cases and I have adopted his reasoning.10

[58]      The strength of the evidence you faced must affect the extent of any discount for a guilty plea. Here, your offending was in a public place with plenty of witnesses. You confessed to your crime at the scene.

[59]      But, I do recognise the early stage at which you pleaded guilty. The evidence against you was overwhelming but, in this Court, we often see defendants who struggle to accept the reality of the situation they are in. They clutch at straws. Proceedings

9      R v Lamont HC Greymouth, CRI-2009-018-702, 16 December 2010.

10     R v Singh [2015] NZHC 2369 at [51]-[53].

are prolonged through various pre-trial arguments over legal issues which ultimately turn out to be of marginal significance. Counsel, with some justification, through fear of subsequent complaint or criticism, seek advice from expert witnesses for the defence where ultimately that evidence does not materially differ from the evidence of expert witnesses relied on by the Crown, witnesses who are under an obligation to provide their opinions impartially to assist the Court and not as advocates for either side.

[60]      Through the victim impact statements I have heard today, we have been reminded of how the inevitable delays in criminal proceedings, as they progress towards trial, are an ordeal, not just for the victim but for the family of victims and also for witnesses. An early guilty plea reduces that burden. It also saves the Court, the Police and the prosecution the cost and burden of the continuing proceedings. It is appropriate to recognise the importance and value of an early guilty plea.

[61]      As I say, you entered a plea of guilty at a very early stage. I note this was before even a full pathologist’s report had been made available. Mr Prasad you have been well served by your counsel and the advice you must have received, the way he had the courage and took the responsibility of allowing and perhaps encouraging you to plead guilty when you did.

[62]      I adopt a two year discount to recognise the benefit in not requiring witnesses and the family of your victims to go through the ordeal of a trial.

Conclusion

[63]Mr Prasad, would you please stand.

[64]      On the charge of murder, I sentence you to life imprisonment with a minimum period of imprisonment of 13 years. On the charge of injuring with intent to cause grievous bodily harm, I sentence you to a concurrent sentence of six years’ imprisonment.

Three strikes warning

[65]Judge gives First Warning.

[66]Mr Prasad, you may stand down.

Solicitors:

Raymond Donnelly & Co., Christchurch Brandts-Giesen McCormick, Rangiora.