R v Ram
[2015] NZHC 2813
•12 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-11392 [2015] NZHC 2813
THE QUEEN
v
JIWAN RAM
Hearing: 12 November 2015 Appearances:
K A Lummis and D J Dufty for Crown
H B Leabourn for DefendantSentence:
12 November 2015
SENTENCING REMARKS OF WHATA J
Solicitors:
Meredith Connell, Crown Solicitors, Auckland
Copy to:
H B Leabourn, Auckland
R v RAM [2015] NZHC 2813 [12 November 2015]
[1] Mr Ram you have been found guilty of one charge of the murder of
Ms Bimla Wati. I convict you for that murder. You appear now for sentencing.
[2] Murder ordinarily carries a penalty of life imprisonment, which I will impose on you.1 The key remaining issue is the minimum period of imprisonment that you must serve.
[3] My sentence will be in six key parts:
(a) First, I must re-tell the facts of the murder (and I regret any additional harm this causes to Bimla’s family and friends but it is something I am obliged to do);
(b) Second, I will describe your personal circumstances;
(c) Third, I will briefly refer to the victim impact statements;
(d)Fourth, I will describe the legal frame, principles and purposes of sentencing;
(e) Fifth, I will set out the reasons for the sentence I will impose on you;
and
(f) Sixth, I will deliver my sentence.
Relevant facts
[4] On the evening of 3 November 2014 you and Bimla were at home together with two boarders, Hardeep Singh and Paramvir Singh. Bimla’s niece, Rangeeta Gounder and her daughter, who also lived in the home had gone out for dinner.
[5] Bimla’s daughter had recently given birth to a second grandchild and Bimla wanted to see her that weekend in New Plymouth. But finances were tight and you
1 Sentencing Act 2002, s 102. This section applies unless it would be manifestly unjust to impose life imprisonment. There is no dispute that the very high standard under s 102 would not be met in the current case.
wanted to postpone the visit until you could afford it. You argued about this and it appears that about 8.00 pm you retreated to your bedroom to go to sleep.
[6] Still upset, Bimla followed you into the bedroom with a knife. I am unable to say what exactly was said, but I find that a struggle then ensued in which you attempted to get the knife from her and during this struggle you sustained a cut to your right bicep.
[7] You both then moved out into the living room. By this stage Bimla had placed the knife on a coffee or dining room table and sat down on the sofa. Bimla called Rangeeta at about 9.00 pm to see when she would be home and Rangeeta said she would be home soon. The arguing continued. I am prepared to proceed on the basis that Bimla made a disparaging comment about your mother and you became enraged. You then picked up the knife and stabbed Bimla at least six times. You also inflicted other superficial cuts. Four of the wounds caused by the stabbing would have been lethal. The knife was 35 cm in length from tip of the blade to the end of the handle. The speed and intensity of your violent attack meant that Bimla had no real chance to defend herself. Evidence of her vulnerability is illustrated by the fact that she was found with a hair tie wrapped around her fingers, suggesting that she was about to tie her hair immediately prior to your attack.
[8] Hardeep and Paramvir heard you and Bimla arguing in the bedroom and then in the lounge. When they heard Bimla scream they ran to the lounge. Hardeep saw you drive the knife into Bimla’s back. At first he thought you were punching her and then he saw the bloodied knife. You told them to get out of the house which they did. They called the police.
[9] You say you then attempted to take you own life. You had severe cuts to both wrists, but I am not convinced that the attempt was genuine. There is evidence, for example, that in fact you had the sense to take your diabetes medication after the murder, but before the police arrived.
Injuries to victim
[10] The post mortem has revealed that the victim, Bimla, was stabbed five times in the chest and once under the left armpit. The wound under the armpit would have been instantly fatal as it severed the aorta. There is also a three inch slice to the right side of her neck and a small defence wound on her left wrist. She was also left with broken ribs, further indicating the force of your blows.
Personal history
[11] Mr Ram, I am now going to address your personal history.
[12] You were raised in a poor suburb of Fiji, but you say that your parents worked hard to provide for you and your siblings. You have three children from a previous marriage of 27 years.
[13] You moved to New Zealand when you were about 44 years old and have been working as a taxi driver since your arrival.
[14] You were in a relationship with Bimla for about 20 months and prior to these events you had no major conflicts. You say you are still in shock about what happened and do not understand why Bimla was “so abusive towards [you].”
[15] You have diabetes and are suffering from gout and take prescribed medications for these conditions.
[16] Your pre-sentence report observes that while stating remorse Mr Ram, you tended to justify your behaviour as possibly being the result of Bimla’s own abusive behaviour. Mr Leabourn on your behalf has submitted that this may have resulted from language difficulties, especially as the report also notes that you said, “That you could never forgive yourself”.
[17] In this regard I have also read the letter by you to Bimla’s family. It was
produced only today. I do not accept that it reveals genuine remorse. Indeed, you
continue to minimise your offending by stating that you caused her death
“unknowingly”.
[18] Overall, therefore, I do not accept that you accept responsibility for the harm caused but have expressed regret at her passing.
[19] I have also read a number of statements, including from your two daughters, your son in law, a cousin, a younger brother and several other persons in support of you. They suggest you are normally a person of strong values and ethics, a very supportive father, much loved by your family and a respected member of your community.
Victim impact statements
[20] I now want to address the victim impact statements. There are a number of statements from Bimla’s family, including her siblings and her daughter. I do not propose to refer to each of them. I simply wish to acknowledge that Bimla had a very close knit and loving family and they speak of severe emotional strain they have suffered as a consequence of Bimla’s sudden loss and then the trial process. Plainly, the family has lost a loving and central person in their lives and they say they will never forget the trauma of these events. Bimla’s untimely death has also brought great financial strain on the family, through loss of work income and the funeral expenses in Fiji.
[21] I also wish to acknowledge the harm done specifically to Rangeeta; and her bravery in giving evidence. She was too traumatised to continue living in the house and she had to move, losing a lot of money for the damage to the rental property. She also says that the two flat mates, Hardeep and Paramvir have been much effected and experienced many problems as a consequence of what transpired.
The legal frame, principles and purposes of sentencing
[22] I am now going to describe the legal frame, principles and purposes that must guide sentencing.
[23] I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce your offending and to hold you accountable for the harm that you have done. The sentence I will impose is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might act similarly. And I have to consider the protection of the public.
[24] The sentence I impose on you must be consistent in kind and in length with those imposed on others who have offended in a similar way. I must consider the gravity of your offending and your culpability. I must also take into account any circumstances that might make an otherwise appropriate sentence disproportionately severe and the effects that the offending has had upon you.
Murder
[25] I now address the appropriate sentence to impose upon you for murder. This begins with s 102 of the Sentencing Act 2002 which provides a presumption in favour of life imprisonment. This may be displaced only if such a sentence would be “manifestly unjust”. No such injustice exists here. Your sentence, as I have noted, is one of life imprisonment.
[26] The next step to consider is the appropriate minimum period of imprisonment: the period you must serve before you are eligible for parole. In order to do this I must:
(a) Examine the aggravating and mitigating features of the murder;
(b)Assess whether any of the factors in s 104 of the Sentencing Act are triggered so that a minimum sentence of 17 years must be imposed; and
(c) If s 104 is not triggered, identify the appropriate minimum sentence having regard to the purposes specified at s 103 and the sentences imposed in relation to comparable offending.
The aggravating and mitigating features of the murder
[27] I consider that the following features of your offending are aggravating:
(a) First, the location, number and intensity of the stabbings – they were clearly inflicted at locations and with such force that death was the only possible result;
(b)Second, Bimla’s vulnerability and a breach of trust – she was your de facto partner and much smaller than you – she was entitled to your protection; and
(c) Third, the context of the murder – a family home, including for your young grand-niece; it is a place where violence of any kind is to be deplored.
[28] I also acknowledge the harm caused to the family, but I do not consider that this is an aggravating factor for the purposes of my s 104 assessment.
[29] As to mitigating factors, I acknowledge that: (a) There was no premeditation;
(b) There was some degree of provocation; and
(c) The acts of murder and harm took place over a very short span of time.
[30] I come back to the significance of these factors below, but I turn now to examine whether s 104 is in play.
[31] For completeness, I reject Mr Leabourn’s suggestion that the use of the weapon was not an aggravating factor. Even though Bimla may have initially brandished the knife, by the time of the murderous act you were in control and chose
to use it. There is no question at all of self-defence or similar mitigating factor in relation to the knife.
Section 104 Framework
[32] The Court of Appeal in R v Williams said that in addressing s 104 the first step for the Court is to assess the degree of culpability in the particular case in relation to that involved in the standard range of murders.2 In doing so I am to look at the aggravating factors of s 104 to the extent they are present, and any other applicable aggravating and mitigating factors.
[33] If the result of this assessment is a non-parole period of less than 17 years is appropriate, the second step for me to ask is whether the minimum term of 17 years would be manifestly unjust and, if so, what lesser period is justified.
[34] Ms Lummis submitted that it is arguable that the present murder triggers s 104 on the basis that it was committed with a high level of brutality, cruelty, depravity, or callousness. She referred in particular to the Court of Appeal decision in R v Gottermeyer which held that the domestic stabbing murder in that case involved a high level of brutality and callouness, and would have attracted a minimum sentence of 17 years but for significant mitigating factors that made such a
sentence unjust, including Mr Gottermeyer’s impaired mental health.3
[35] But, as Mr Leabourn submitted, the brutality and callousness in the Gottermeyer murder was at a materially higher level than the present case, involving the vicious cutting of the victim’s throat and with a child present in the next room. While the intensity of the acts of murder in this case meant that death was inevitable, it does not in my view carry the same level of premeditated, shocking violence evident in the Gottermeyer case (or in any of the cases cited in that judgment where a 17 year minimum was imposed).
[36] I appreciate that these comments will be distressing to Bimla’s family and
friends given that Bimla was murdered, and nothing I say here should diminish the
2 R v Williams [2005] 2 NZLR 506 (CA) at [52].
3 R v Gottermeyer [2014] NZCA 205.
abhorrence you naturally feel. I am obliged to examine the detailed features of the offending and to determine whether the facts of this murder invoke the sternest of the sentences available to a Judge, and it does not fall into that category.
[37] In summary, the level of brutality and callousness in this case does not attract a minimum sentence of 17 years. I therefore turn to fixing an appropriate minimum sentence for the purpose of s 103.
Section 103 framework
[38] The starting point for s 103 is a minimum MPI of 10 years. I must consider other comparable cases in determining whether the required 10 year non-parole period is sufficient.
[39] To my mind the features of the offending in this case are comparable to the offending in a number of domestic cases involving multiple stabbings that attracted minimum sentences in the range of 10 – 12.5 years.4 I will not burden this sentence with a recitation of their facts – I simply observe that cases involving similar levels of brutality but higher levels of premeditation have attracted sentences at the top end of this range.
[40] I also consider it is important to note that I do not accept that a minimum period of 10 years in R v Rukuata (relied on by Mr Leabourn) is appropriate in this case.5 In that case the Crown accepted that the attempted suicide reflected genuine remorse and did not urge a minimum sentence of more than 10 years.
[41] Returning then to your sentence, I am satisfied that a starting point minimum period of 12 years is required to meet the purposes stated at s 103(2) – namely to hold you accountable, to denounce your conduct, to deter others and to protect the community. Indeed, the need to denounce in particular domestic violence of this
horrible kind is a compelling reason for imposing a 12 year minimum starting point.
4 R v Singh [2015] NZHC 2369; R v Rajamani HC Auckland CRI-2005-004-1002, 28 March 2006;
R v Prole HC Rotorua CRI-2012-07-3726, 30 May 2013.
5 R v Rukuata HC Auckland CRI-2005-092-13891, 29 May 2007.
[42] As to provocation, I consider it is relevant to the extent that it suggests that the murder was not an act of gratuitous violence – and therefore did not exhibit the level of brutality that might otherwise attract a 17 year minimum. But I have come to the view that it does not mitigate the gravity of the offending overall such that any significant discount on the start point of 12 years is warranted. Indeed your violent response was not at all proportionate to the nature, duration and gravity of the
provocation.6 Whatever offence was taken by Bimla’s comments about your mother,
it could never justify the number and intensity of the stabbings of an essentially defenceless person.
Aggravating personal factors
[43] You have a conviction for male assaults female in 2001. I do not think that this warrants an uplift. It is also more than offset by the fact that you have otherwise been a supportive and caring father and, it appears a person of good character.
Mitigating personal features
[44] I turn then to any personal mitigating features.
[45] You have not expressed any genuine remorse that might, in my view, attract a discount. Indeed, you appear to be still directing the cause of your harm to Bimla’s conduct on the night and minimising your culpability. I also do not accept that you attempted to commit suicide and therefore that this evidenced any form of genuine remorse.
[46] You are 637 and in poor health. A lengthy sentence could have a disproportionate effect on you. I will make a five per cent discount on this account, and in recognition of your otherwise good character.
[47] There is regrettably nothing else I think that warrants further mitigation of the sentence.
6 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [62].
7 After sentencing, Mr Leabourn advised that Mr Ram is now 64.
[48] Accordingly, Mr Ram please stand.
[49] On one count of murder you are convicted and sentenced to life imprisonment with a minimum period of 11 years five months.
Three Strike Warning
[50] I am also now required to give you a first strike warning. A copy of what I am about to say will be made available to you later. Your conviction for murder today constitutes a Stage 1 Offence for the purposes of s 86B of the Sentencing Act
2002. From this point if you commit another serious violence offence except murder, you will receive a final warning. Furthermore, if you receive a sentence of imprisonment for that offence other than a sentence of life imprisonment for manslaughter or preventive detention generally, you will serve a sentence without parole. If you are convicted of murder you will be sentenced to life imprisonment, which you will have to serve without parole unless this would be manifestly unjust. If serving that sentence would be manifestly unjust the Judge must specify what minimum period of imprisonment you would serve. I reiterate this warning will be provided to you later in writing and if you have any questions I am sure others will be able to explain it to you.
[51] Mr Ram please stand down.
Addendum
[52] Ms Lummis has helpfully noted that in fact Mr Ram accepts that he took the knife into the living room and placed it on a table in the room. This does not materially alter my view of the sentence.