R v Prasad HC Auckland CRI 2009-004-23295

[2011] NZHC 293

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-004-23295

THE QUEEN

v

AVINESH ADESH PRASAD

Hearing:         5 April 2011

Appearances: N Walker for Crown

A Speed for prisoner

Judgment:      5 April 2011

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Auckland  [email protected]
A Speed, Auckland [email protected]

R V AVINESH ADESH PRASAD HC AK CRI 2009-004-23295 5 April 2011

[1]      Mr Prasad, you appear for sentence this morning on one count of attempted murder, the jury having found you guilty despite your proffered defence of insanity.

Factual background

[2]      On the evening of Thursday 9 October 2009, you went with your wife to a residential address in Queen Street, Central Auckland.  There, you met the victim, Mr Sarthak Kanwar and his wife Anu at about 9.50 pm.   You knew the couple through your wife.  You were shown up to their apartment and after a short period, you  and  Mr Kanwar  went  outside  to  a  walkway,  which  afforded  access  to  the apartment.  There had been some suggestion that the two of you might go downstairs for a drink.

[3]      In the event however, and without warning, you produced a knife which you had been carrying about with you for some days for self-protection, and stabbed Mr Kanwar three times.  One blow entered the upper left side of the victim’s chest in the vicinity of the heart.  Other blows to the abdomen pierced the bowel and liver. These were very serious injuries.   Mr Kanwar was rushed to hospital where he underwent life saving surgery over a period of many hours.

[4]      The police arrived within  minutes.   You were apprehended.    During the course of the police investigation they found the handle of the knife on the ground, and the blade in your pocket.  Mr Kanwar’s evidence was to the effect that when the blade broke, you continued your assault by punching and kicking him.

[5]      In a police interview later that same night, you admitted that you were the person who had assaulted Mr Kanwar.

Victim impact statement

[6]      Mr Kanwar is 27 years old.   In a detailed victim impact statement which I

have carefully read, he outlines the pain and trauma of the days following your

attack upon him.  As might be expected, it took weeks, if not months, for him to recover.  It was necessary for the surgeons to engage in highly invasive surgery in order to save his life.  In consequence of what you did Mr Kanwar lost a position for which he was trained, and where he had some expectations of promotion.  He now has other employment, but not at the same level as the position he formerly held.

[7]      In his victim impact statement Mr Kanwar pays a special tribute to his wife, who has obviously stood by him and helped him through these most difficult of times  for  him.    It  is  necessary  to  take  into  account  Mr Kanwar’s  interests  in determining what the overall outcome should be.

Personal circumstances

[8]      You are 29 years old, and of Fijian Indian descent.   You arrived in New Zealand early in 2009 with your wife, who you had married during the preceding year.  Your upbringing in Fiji seems to have been relatively unremarkable. You were one of three children, having an older sister and a younger brother.  Your parents remain in Fiji.

[9]      Unfortunately there were difficulties for both you and your sister at a social and mental health level.   It seems plain  enough that while in  Fiji  you became mentally unwell, to the point at which you attempted suicide at the age of 15 years. Regrettably your sister took her own life about five years ago.   Despite these difficulties you did not seek treatment while in Fiji.

[10]   You are a man of considerable intelligence, having obtained tertiary qualifications in electronic engineering in Fiji in 2006.  After arriving in this country you  found work  as  a  marketer  for  a time, and  then accepted  a position  which involved undertaking shoe repairs, engraving and key cutting in Auckland shopping malls.

[11]     Soon after your arrival in New Zealand, you again became seriously mentally unwell.   In February 2009 you suffered from a psychotic relapse which involved intermittent  intervals  of  mute  behaviour,  severely  impaired  sleep,  and  manic

episodes  for  short  periods  of  time.    You  also  became  scared  and  anxious  and exhibited extreme suspicion of others.  On 9 February 2009 you were compulsorily admitted to a mental health unit and remained there for about a fortnight.  At that stage you were diagnosed as suffering from a psychotic illness, although clinicians were reluctant at that time to diagnose your disorder as schizophrenia.

[12]     It is however, noteworthy that at that time you responded well to the standard treatment for schizophrenia, namely prescription of Olanzapine.   Following your discharge you were monitored by mental health service officers.   You had some problems with side effects including sedation and a secondary tremor.  The latter in particular was a problem because it was interfering with your ability to operate as an engraver.   As a result, your doctors gradually reduced your dosage of Olanzapine until it ceased altogether on 10 September 2009.

[13]     At  the  time  of  your  conviction,  I  sought  a  medical  report  pursuant  to s 38(2)(a) of the Criminal Procedure (Mentally Impaired) Persons Act 2003.   In consequence, a report has been furnished to the Court by Dr Ian Goodwin.  It is a detailed report which I have found to be of considerable assistance.  Dr Goodwin is thanked for his work.

[14]     He notes that following your attack on Mr Kanwar you were first of all remanded in custody, but that your mental state rapidly deteriorated in prison and you were admitted to the Mason Clinic on 21 October 2009.  In the following days, by reason of your behaviour, you were considered to be suffering from catatonic schizophrenia.  Prior to that, and within the prison setting, you had been unable to eat or care for yourself without assistance.   You were mute for long periods and suffered psychomotor deficits.

[15]     Again,  Olanzapine  was  administered,  and  over  time  your  mental  state improved significantly.   Ultimately, you were bailed back into the community on

23 March 2010 to await your trial.  You have remained in the community since that time, pursuant to a compulsory treatment order made under s 29 of the Mental Health Compulsory Assessment and Treatment Act 1992.

[16]     Dr Goodwin’s report indicates that you have remained mentally well since that time, albeit that you remain on intensive community treatment, your medication being delivered to you daily and taken under supervision each evening.

[17]     The pre-sentence report, although generally helpful, does not add a great deal to what is already known.  The report writer confirms that there is no reason why you would not be able to undertake any community or custodial sentence.  There is confirmation also that your current treatment could be continued if a custodial sentence is imposed.

[18]     The pre-sentence report suggests that you continue to protest your innocence. I am not certain how much to read into that, given the fact that you do not dispute what  occurred,  and  Dr  Goodwin  reports  that  you  now  accept  that  you  were extremely unwell at the time of this offence, but that you acknowledge you have to accept responsibility for the stabbing.  You are reported as having told Dr Goodwin that you are now shocked at what you have done, and that you are significantly remorseful.

The background to the offending

[19]     I  turn  now  to  a  brief  outline  of  the  background  to  your  attack  upon Mr Kanwar.  During the weeks before the offence, your wife had received several text messages.  Some of them simply passed on slightly raunchy jokes, which seem to have been circulated among friends and acquaintances.   One or two others you took to constitute evidence of a relationship between your wife and another man. You formed the view that the off-colour jokes were coming from someone with whom your wife was in a relationship, and who constituted a threat to your physical well-being.

[20]     I pause at this point to say that none of the messages could possibly be construed  in  that  way,  and  that  your  attitude  towards  them  was  clearly  highly coloured by your deepening mental problems at the time.

[21]     It was around this time that you decided to arm yourself with a kitchen knife capable of inflicting very serious injuries.  You did that because you wanted to be in a position to defend yourself against those who might be a threat to you.

[22]     In the days leading up to the stabbing, you concluded that Mr Kanwar was the person who had sent the messages and who had developed some sort of relationship with your wife.  It was against that background that you visited Sarthak and Anu on the night in question.   Having been there for just a few minutes you persuaded Sarthak to go outside with you onto the walkway.  It is a proper inference that you attacked him because you considered that he would, in due course, have attacked you.

Your prognosis

[23]     Despite what occurred, Dr Goodwin considers that you possess a good deal of insight into the nature of your own illness, and the background to your attack on Mr Kanwar.  You currently do not have any active symptoms;  in other words, your condition is being adequately controlled by your medication.    But Dr Goodwin considers that you may be a risk to the community in the future if your current medication is not maintained.  He says that you suffer from catatonic schizophrenia and that you will require on-going treatment and supervision for that condition.  He notes that you are fully compliant with your treatment, and so any risk you pose to the community is thereby significantly mitigated.

Sentencing principles

[24]     This was violent offending which could well have resulted in Mr Kanwar’s death.  I am therefore bound to take into account the need to hold you accountable for what you have done, to promote in you a sense of responsibility for and an acknowledgement of the harm you have caused, and to impose a sentence that will adequately denounce the offending and deter you and others from similar behaviour.

[25]     I must take into account also the need to protect the community from you, a matter of special significance in this case where there must remain a risk if your medication is discontinued.

[26]     But I must take into account also the need to assist you as best I can in the task of rehabilitation.  Again, that is a factor of some significance given that you cannot be regarded as blameworthy simply because you have had periods of mental ill health.

Counsels’ submissions

[27]     In  their  written  submissions  there  is  something  of  a  divergence  in  the approach taken by counsel.  Ms Walker for the Crown suggests that the appropriate course is to have regard to the sentencing bands set out in R v Taueki,1  bearing in mind that this is a case of attempted murder.  The jury having determined that there was an actual intention to kill your victim, Ms Walker suggests a starting point in the range of seven to nine years imprisonment.

[28]     On the other hand, Mr Speed submits that a starting point as low as three to four  years imprisonment is  sufficient,  and  that  you  may well  qualify for home detention.    In  submissions  this  morning  Mr  Speed  has  perhaps  modified  his approach.  He accepts from the outset that Taueki is relevant, but says that this is a case which falls towards the lower end of the range of comparable authorities.

The starting point

[29]     There is no tariff case for attempted murder, because the offence can cover such a large range of factual circumstances.2   But, as Ms Walker submits, the Taueki authorities  are  often  adopted  as  providing  useful  guidance  in  attempted  murder cases.  I am satisfied that it is appropriate to do so here.

[30]     In Taueki the Court of Appeal set out three sentencing bands which deal with cases of serious violence in order of increasing severity.  The cases are placed in a particular band by reference to the presence of one or more aggravating features. The Crown submits that this case falls at or near the top end of band 2, in that there are three aggravating features;   namely the existence of very serious injuries, the infliction of extreme violence, and the use of a weapon.

[31]     Several recent authorities provide some assistance.   In  R v O’Kane,3  the prisoner attacked his former partner, from whom he was separated, with a carving knife.  During the course of a stabbing frenzy he repeatedly stabbed her in the chest, abdomen and back, as well as slashing her arms and hands.  There was a background of depressive illness, alcohol problems and obsessiveness.  On a charge of attempted murder,  the Court  regarded  the case as  falling  within  band  3 of  Taueki  and  as justifying a starting point of ten years nine months.

[32]     In R v Fotuaiki,4  the prisoner and his partner had recently separated.  There were issues about custody of the children. Again, the prisoner attacked his wife with a knife, inflicting 14 stabs wounds to the victim’s back, neck, throat and chest. When she said she was dying he stopped the attack and ran to summon help.  The victim suffered life threatening injuries but had since forgiven him.  There, a starting point of nine years imprisonment was adopted.

[33]     In R v Khan,5  the appellant had been convicted of attempted murder and sentenced to eight years imprisonment.   He had approached his wife from behind while she was vacuuming in the kitchen and stabbed her repeatedly in the upper chest area with a large kitchen knife.   She managed to pull the knife away from him, but the prisoner retrieved it and continued with the attack, which occurred in front of their children.   Although insanity had not been raised at the trial, the appellant believed that his wife had been trying to poison him and she was having an affair

with another man. A starting point of ten years was upheld on appeal.

3 R v O’Kane HC Dunedin CRI-2009-002-190, 2 April 2009.

4 R v Fotuaiki HC Wanganui CRI-2008-083-73, 22 October 2008.

5 R v Khan CA83/02, 4 December 2002.

[34]     In R v S,6 the prisoner pleaded guilty to four counts of which the most serious was attempted murder.  The 19 year old prisoner, after having had a meal with his mother and her two year old daughter, left the room, took up a large carving knife and stabbed his mother without warning on the side of the neck.  He continued to stab her, wounding and lacerating her hands.  After cutting the telephone landline and removing the victim’s cell phone, he resumed the stabbing attack which left her with wounds to her chest, shoulder and arm.  There was a history of substance abuse, an antisocial personality disorder and schizophrenia.  A starting point of nine years imprisonment was adopted.

[35]     Finally, in R v Craw,7 the Crown dropped a charge of attempted murder and amended it to wounding with intent to cause grievous bodily harm, to which the prisoner pleaded guilty.  There was an acknowledged mental disability but not such as to render him criminally insane.  He was 23 years old and had been under the care of mental health services for some years. The prisoner and his mother had stopped at a petrol station, at which point he produced a pocket knife and stabbed her more than ten times in the upper body.  The wounds were not serious.  The victim was released from hospital the following day.  The prisoner had failed to take his medication over the preceding few days, and had developed a delusional belief that his mother was responsible for certain occurrences contrary to his well-being.   There, the Court adopted a starting point of seven years imprisonment.

[36]     I consider the appropriate starting point here to be seven years imprisonment. The offending in O’Kane and Fotuaiki was in my view more serious than occurred here.  In the former case there was evidence of premeditation, home invasion and of lasting injuries to the victim.  In the latter case there was again premeditation and an attack to the victim’s head.

[37]     Each of Khan and S, involved prolonged attacks not found here, where there were three stab wounds.  I accept that you continued your attack by punching and kicking the victim  thereafter,  the knife having  broken,  but  nevertheless,  viewed

overall, this assault, serious as it was, did not reach the level of culpability to be found in cases other than Craw.

[38]     On the other hand, this case is similar to Craw, although it is necessary to observe in that case the Crown dropped the charge of attempted murder and substituted a grievous bodily harm charge.

[39]     In adopting that starting point I have necessarily taken into account the ordeal suffered by Mr Kanwar.   This must have been an utterly terrifying assault.   His recovery was slow and painful, and reading between the lines he has yet to regain everything he had prior to the attack.  He is fortunate to have had the support of his wife and of his mother, who flew from India to take care of him after he was discharged.

Mitigating factors

[40]     I turn to mitigating factors.   You are still a young man.   Apart from this terrible lapse you have had an unblemished record.   You have no previous convictions. You are entitled to have that taken into account.

[41]     The principal mitigating consideration is the state of your mental health at the time of your attack upon Mr Kanwar.  The jury found you to have been sane at the time of the attack; you were unable to make out your insanity defence at trial. Nevertheless, I am entitled to take into account the fact that you were mentally unwell at that time.  In E v R(CA89/2010) v R,8   the Court of Appeal had occasion to review sentencing principles where a prisoner suffered from a mental disorder.  The Court noted that such a disorder may be capable of mitigating a sentence either because,  if  causative  of  the  offending  it  moderated  the  extent  of  the  overall

culpability, or a sentence of imprisonment might thereby become more difficult for the prisoner.  Both of those factors might be present in combination in a given case.9

[42]     While Ms Walker accepts the force of these considerations, she says the first of them, that is, lessened culpability, may not be significantly applicable in your case Mr Prasad, because Dr Mellsop’s evidence (upon which the jury must have relied), was to the effect that your mental problems played little role in your motivation to attack  Mr Kanwar.     Rather,  Dr  Mellsop  identified  a  range  of  other  likely considerations such as inter-personal difficulties, shyness, unhappiness, insecurities in your relationship with your wife and so forth.

[43]     In my view, the Crown’s approach to that issue is a little rigorous.   It is simply not possible to determine what factors were regarded by the jury as key issues.   Indeed, the likelihood is that the jury simply concluded that the test for insanity, to be found in s 23 of the Crimes Act 1961, had not been met.

[44]     I consider that, viewed overall, your medical history and in particular the events  over  the  days  and  weeks  immediately  preceding  this  incident,  strongly suggest that the mental illness from which you were suffering played a substantial role in the offending.  In other words, had you not been mentally unwell this attack would never have occurred.

[45]     Accordingly,  I  believe  it  appropriate  to  take  into  account  the  lessened culpability, viewed in a moral sense, entailed in this offending.  Section 9(2)(e) of the  Sentencing Act  2002  provides  that  in  sentencing,  the  Court  must  take  into account the presence at the time of the offending of diminished intellectual capacity or understanding, provided that the impairment was causative of the offending.10

[46]     In E v R the Court of Appeal reviewed in detail the range of discounts allowed in cases of mental illness,11  noting that discounts of between 12-30% had been allowed in the reviewed cases, most of which involved violent offending.

[47]     I am satisfied that what occurred here was the direct result of the gradual reduction in your medication over a period ending in early September 2009.  That reduction  was  effected  upon  medical  advice,  and  chiefly  because  you  found  it

difficult to carry on your employment as an engraver while suffering from tremors, a side effect of the medication.  Accordingly, this was not a case in which you simply neglected or refused to take your medication.  You did so on medical advice given for good reason.

[48]     I am satisfied also that, had you maintained your medication through mid-

2009, you would not have attacked Mr Kanwar on 9 October, because you would have  remained  mentally  well  and  would  not  have  developed  the  groundless suspicions which motivated you.   I consider this is a case in which a substantial discount ought to be allowed.

[49]     Accordingly, from the starting point of seven years imprisonment, I allow an overall discount of three and a half years.  That comprises two and a half years for your mental impairment at the time of the offending, and it incorporates both limbs of the E test, namely your reduced culpability and the extra difficulty you may have in serving a custodial sentence in prison.  The other year is deducted in order to take account of your impeccable record to date, (you have no criminal convictions) and also  to  reflect  a degree  of remorse which  I am  satisfied,  having carefully read Dr Goodwin’s report, is genuine. That produces an overall sentence of imprisonment of three and a half years imprisonment.

[50]     Dr Goodwin has drawn the Court’s attention to s 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 which permits the Court to direct that a custodial sentence be served in a hospital as a special patient.   That recommendation has been the subject of some discussion this morning, but I am unable to accept that it is appropriate to follow that course here.  Provided that your medication is maintained, there is nothing to suggest that a prison environment may be inappropriate.  Both Dr Goodwin and the probation officer have noted that you would be able to serve a custodial sentence in the normal way.  Dr Goodwin advises the Court that your current level of medication and oversight can be provided by the Prison Service of Regional Forensic Psychiatry Services.

[51]     Mr Speed has pointed out that the element of compulsion in the taking of your medication will, upon the imposition of a custodial sentence, lapse, and that it

will simply be for you to follow your proper instincts and to take your medication in a  voluntary  sense.     If,  regrettably  that  does  not  occur,  and  your  condition deteriorates, then there would be a need for the authorities to consider whether an order ought to be made directing your transfer to a hospital to continue serving your sentence as a special patient.  But I am sure you will understand that it cannot be in your interests to discontinue your medication.  History now shows that if you do take it you can function very well as a member of the community, and you can look forward to a long productive life.   I am confident that there will be no need for a compulsory regime in the future.

Sentence

[52]     On the count of attempted murder for which you now appear for sentence, you are sentenced to three and a half years imprisonment.

C J Allan J