R v Reddy
[2016] NZHC 1367
•22 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-092-011748 [2016] NZHC 1367
THE QUEEN
v
KAMAL GYANENDRA REDDY
Hearing: 22 June 2016 Counsel:
NE Walker and LJ Clancy for Crown
JG Krebs and GC Gotlieb for DefendantJudgment:
22 June 2016
SENTENCING NOTES OF ASHER J
Solicitors/Counsel:
Crown Solicitor, Manukau.
JG Krebs, Napier.
GC Gotlieb, Auckland.
R v REDDY [2016] NZHC 1367 [22 June 2016]
Introduction
[1] Kamal Reddy, you appear for sentence today after having been found guilty by a jury of the murders of Pakeeza Yusuf and Juwairiyah Kalim. The penalty for murder in New Zealand is life imprisonment, so as a result of your convictions on the murder charges you will be sentenced today to life imprisonment.1 The issue for me to determine in this sentencing process is the length of the period to be fixed before you may apply for parole; what is referred to as the minimum term of imprisonment.2 Whatever that minimum term, at its expiry you will not be automatically released from prison. The expiry of the period will mean no more than that you will then be eligible for parole. There is no guarantee that you will be granted parole either on the first application or at a later time. The Parole Board will consider at the relevant time whether you remain a risk to the community.
[2] So before I turn to the question of the minimum term it is necessary to set out the background to your offending. I am now going to set out the facts as I find them to be. Much of what I say in terms of the facts will be drawn from the confessional statement you made to the undercover police officer at the second meeting you had with him, that undercover officer colloquially being called Mr Big. You made that confession at the end of a long process, and I am satisfied to the criminal standard that what you said when you finally confessed to the murders was true. What you said then, not realising that you were being recorded, was what actually happened and I do not accept, Mr Reddy, the evidence you gave in the witness box where you said that confession was wrong and it was not truthful. Indeed, what you said in evidence was remarkable for its obvious invention, its inconsistencies and at times its complete absurdity.
[3] So these are the facts that I find to have been proven.
Relevant facts
[4] At the end of 2006 you were 33 years old. Of the two victims, Mubarak
Pakeeza Yusuf (known as Pakeeza) was then 24 years old, and her daughter
1 Sentencing Act 2002, s 102.
2 Sentencing Act 2002, ss 103 and 104.
Juwairiyah Kalim (I will refer to her as Juwairiyah) was three years old. You had been in an on-again, off-again relationship with Pakeeza for some months. Pakeeza’s mother Rojina Banu gave evidence about living with Pakeeza for a while and during that time you were sharing her bedroom. But by late 2006 your relationship had either ended or was very close to being ended.
[5] Pakeeza had come to New Zealand from Fiji about four years earlier when she was 20 years old, as a consequence of an arranged marriage with Mohammed Faizal who was living in New Zealand. They had married and in January of 2003 their daughter Juwairiyah was born. However, by the end of 2005 or early 2006 the marriage had run into difficulties and Pakeeza and Mr Faizal separated in early 2006. Mr Faizal continued to see his daughter by arrangement.
[6] It was during that year, after the separation, that Pakeeza and you became involved in a relationship. Pakeeza’s mother, Ms Banu, did not approve of Pakeeza having a relationship with you. She had traditional ideas about marriage, and she did not like the fact that Pakeeza’s marriage had broken up. There was some tension and estrangement between her and Pakeeza. Ms Banu returned to Fiji.
[7] It is clear from the evidence of Ms Banu and Mr Faizal that by the end of
2006, from Pakeeza’s point of view, the relationship between you and her was at an end. She spoke to her mother at around that time by phone saying that things were not going well, and saying that you were drinking a lot and had been abusive and violent towards her. I record that I accept as entirely reliable everything that Ms Banu said in her evidence about Pakeeza’s statements about the state of your relationship and what you had been doing.
[8] In November 2006 there had been an incident. You had been arrested. You were charged with assault with a weapon in relation to Mr Faizal, threatening to kill in relation to Mr Faizal, and threatening to kill in relation to Pakeeza. I record that when that case ultimately went to court on 22 January 2007, Pakeeza was dead. She was not at the court, and ultimately the Crown proceeded on one charge, assault with a weapon in relation to Mr Faizal. You pleaded guilty to that but then were discharged without conviction. The other charges were withdrawn.
[9] I accept the point made by your counsel Mr Krebs, that the exact circumstances of what happened in the incidents that led to the charges relating to Pakeeza’s death have not been proved.
[10] Nevertheless, it is clear from the confessional statements you made, and consistent with the phone call Pakeeza made to her mother, that by the end of 2006 she did not want you to come to her house any more. You had paid the rental deposit for that house, and you were paying for the Sky TV. By this time you believed she was seeing someone else. I record that there is no evidence of that at all, but that was your jealous belief, that you expressed in your confession to Mr Big. She would not let you in the house, and it seems on the night when she died she had told you not to come in. Pakeeza had also said at around that time she did not love you. Certainly she had gone to her bed on her own and you were not in the house. You were outside. So you sat outside the house and waited. At about 2 am (you said to the undercover officers) you made a plan that you would do something so that Pakeeza would not make more trouble for you. So you went in through the back door. You decided that you would kill Pakeeza. Exactly when this intention was formed we do not know.
[11] From what you have said in your admissions, you were motivated by three factors: your belief that Pakeeza was seeing someone else, second and associated with that, her refusal to let you into the house and her statements that she did not love you and third, your anger that she had used your money, or had the benefit of your money, since you had paid these sums for the house she occupied.
[12] So, having formed that intent, you went into her bedroom where she was asleep. There was an iron cord there. You picked it up and you put it around her neck. You strangled her until she died. You were concerned that Juwairiyah might tell the Police that you had been there that night. So that would not happen you went to where she was sleeping. You took a pillow and you forced it onto her head and you smothered her. You held a pillow over her head until she died.
[13] Having done this, you then put the bodies in the back of your car. You covered them with a blanket. You went to see your uncle who you knew was
involved in construction on the North Shore. You went to see him that night with the bodies in the back of the car. When he came out to meet you, you told him that you had killed Pakeeza and Juwairiyah. Ultimately, your uncle acceded to your request to help him and he took you to a construction site on the North Shore where the Akoranga bus station was being completed and he showed you a place under a bridge going to the bus terminal, where the bodies could be buried. You did not bury them that night. By then, it can be assumed dawn was not far away.
[14] You kept the bodies in the car through the next day and that night you went back to the site. You parked your car and put the bonnet up so that if anyone noticed you they would assume someone had a problem with a car. You then proceeded to dig a significant hole in a dank and muddy area under the bridge, and into that hole you placed Pakeeza and Juwairiyah side by side. You then filled the hole and left. You were careful to place some rocks over the bodies as a precaution to make sure that they were not discovered and would not come to the surface.
[15] From then on you were at pains to disguise the fact of Pakeeza and Juwairiyah’s disappearance. You slowly disposed of most of the furniture and household items and your actions included renting storage to hold them. To cover your tracks, you put their clothes and other bits and pieces into recycling bins around Auckland. Ultimately you traded in the car you had used to transport the bodies. Pakeeza’s benefit continued to be paid for a considerable period and you used that money for your own purposes, by using her bank card.
[16] When you were asked by people about what had happened to Pakeeza and Juwairiyah you gave various explanations. You created a number of rumours that she had gone back to her husband, or had gone to live in Wellington, or had run off with taxi driver.
[17] Their disappearance did not set off the alarm bells one might expect. It was a sad and unfortunate circumstance that led to her disappearance going unreported for so long. As I have mentioned, Pakeeza was at the time of her disappearance in a state of estrangement with her mother, who still disapproved of her ending her marriage. So to those, like her mother and others who knew Pakeeza and loved her
and loved Juwairiyah, it was not inconceivable that she might have left Auckland and gone off somewhere without telling people. For that reason, and the fact that she was from Fiji and in Auckland, a place where she had not obtained the normal circle of acquaintances and friends, years went by. Juwairiyah’s father, Mr Faizal, described in his evidence how he became most concerned about the disappearance of his daughter and took steps to try and find her, including knocking on doors and trying to obtain access through Family Court proceedings. Needless to say his efforts were fruitless.
[18] So as time passed you had for all intents and purposes committed the perfect crime. However, on 15 January 2013 Pakeeza’s mother, Ms Banu, went to the Otahuhu Police Station asking for help to find her daughter and granddaughter. The Police, once they began their investigation, identified you Mr Reddy as a suspect. However, apart from some peripheral evidence of you being associated with the furniture from her flat, and suspicious changes in your bank account use indicating you might have been using money from Pakeeza’s bank account, the Police had little to go on. Certainly they did not have enough to charge you with.
[19] Ultimately the Police undertook an extensive, meticulous and skilful undercover operation designed to obtain a confession from you. At the end of the operation, as I have outlined at the start of this sentencing, you made a number of admissions to the undercover officers, in particular the officer I have called Mr Big who appeared to be the head of the group that you were working with. In your admissions to the undercover Police you set out how you killed Pakeeza and Juwairiyah in the way I have outlined. You identified the exact place where their bodies were, and where and how you had buried them. Ultimately your uncle, who assisted you after you had done the murders, confirmed to the Police that you had approached him to help you dispose of the bodies, and that you told him you had killed your girlfriend and her daughter.
The victims
[20] I wish to speak about the victims. I acknowledge Pakeeza and Juwairiyah, your victims, the persons you killed. They deserved to live happy lives. Instead they
died terrible deaths at your hands. Pakeeza’s mother and Juwairiyah’s grandmother, Ms Banu, sets it out graphically – “my mind races”, she says, about their last moments, “What were their last words? What terrible things must they have seen and felt. My daughter would have been calling for me and I wasn’t there to help her. It is just too much for a mother to bear”.
[21] I have Ms Banu’s statement that she gave to the Court this morning. She has the double sadness of losing her daughter and her granddaughter. She has the pain of never seeing their bodies but just their bones after they had been long buried. She has the added grief that, because of the sad estrangement between her and her daughter, she had seven years of uncertainty and grief about her disappearance, and then the ultimate horror of finding out what had happened. Your actions have changed her life forever and for the worse. I also have a moving statement from Pakeeza’s aunt, Ms Mubarak-Banu, who sets out on behalf of herself and her husband and daughters the extent of their loss.
The pre-sentence report
[22] I have a pre-sentence report prepared for you. Unfortunately the probation officer is not able to say very much, as you insist on your innocence.
[23] You have quite a number of previous convictions for drunken driving and driving while disqualified, but you have no convictions for any offence of relevance, which would be other convictions for violent offending. With the probation officer, you continued to assert that you did not murder Pakeeza and Juwairiyah. You maintained that somebody else did. You claimed that you did not even have a relationship with Pakeeza despite overwhelming evidence to the contrary. In the words of the probation officer: “You display no insight into your offending and have no empathy for the victims.”
Submissions
[24] Now against that background, the Crown submits that s 104 of the Sentencing Act 2002, which provides for a minimum term of at least 17 years imprisonment, applies. Sensibly, as they really are obliged to do in the circumstances, your lawyers
do not contest that. The Crown submits that the appropriate sentence is of course life imprisonment, and that the minimum term of imprisonment should be 20 to 21 years, given the various aggravating factors.
[25] It is the submission of Mr Krebs that this minimum period would be too long. It is submitted that you are remorseful in terms of what you say was your limited involvement after the fact in the murders. Your lawyers submit that the minimum term should be 19 to 20 years.
Approach to sentence
[26] Normally when it comes to sentencing for very serious murders where s 104 is at issue, there is a two-step process where the Judge first determines what the minimum term would be in the absence of s 104, and if that is less than 17 years’ imprisonment, considers whether it would be manifestly unjust to impose a 17 year
minimum term of imprisonment in any event.3
[27] Now, I do not have to strictly carry out a two-stage process, as it is plain and uncontested that the minimum term will be more than 17 years’ imprisonment. So my real task is now to assess the appropriate length of the minimum term against the facts that I have set out, considering the mitigating and aggravating factors relating to the offending and relating to you personally.
Aggravating factors
[28] So what are the aggravating factors? First, this was a double murder.4
Clearly the lowest minimum term prescribed by Parliament for a single murder, which is 10 years, cannot apply. In terms of lives taken, you have done twice the harm. You took two lives.
[29] Second, the murder of Juwairiyah was by your own admission committed in an attempt to avoid the murder of her mother, and your involvement in it, being
3 R v Williams [2005] 2 NZLR 506 (CA).
4 Sentencing Act, s 104(1)(h).
detected.5 You did it to save your skin, or so you thought. It was an act of particular callousness. You were determined that nothing would lead to your apprehension, and the killing of a three year old child was something you were prepared to do to lessen the risk of apprehension of yourself. It was to improve your chances of not being caught.
[30] Third, Juwairiyah was particularly young and vulnerable.6 She was a sleeping three year old, and you deliberately extinguished her life.
[31] Fourth, your actions showed a high level of callousness in the cold way you went about the two murders, particularly the smothering of Juwairiyah.7 In assessing this, I also take into account your actions after the murders.8 Your callous disposal of the bodies and your planning for that. You were content to hold the bodies in your car for a day and a half. Ultimately you consigned them to a burial where you were
certain they would never be found, and indeed your calculation was right. They would never have been found but for the Police undercover operation. There were other actions indicating particular callousness – the way you tried to cover your tracks by disposing of her possessions, and the way you used her money. So this is a fourth and particular feature that I note.
[32] There is yet another factor also, which is that it was a condition of your bail that you would not see Pakeeza. She had not wanted you to be in the house. You chose to get in by stealth and against her wishes when she was asleep, and then attack her.
[33] Now, there is a measure of overlap in these aggravating features that I have mentioned, but in combination they put your actions in the worst category. The 17 year minimum that is provided for in s 104 applies because you have been clearly shown to have triggered four of the factors set out in that section as mandating at least a 17 year minimum period, a double murder, a killing to avoid detection, a
young vulnerable child victim, and particular callousness.
5 Sentencing Act, s 104(1)(a).
6 Sentencing Act, s 104(1)(g) and s 9(1)(g).
7 Sentencing Act, s 104(1)(e).
8 See R v Frost [2008] NZCA 406 at [40]; Pandey-Johnson v R [2012] NZCA 595 at [43] and
[46].
[34] When your actions are examined, Mr Reddy, there are no mitigating circumstances relating to the offending.
Conclusion on starting point for minimum term
[35] So all these factors mean that these murders are far more serious than those in the usual range. I look at other sentences where two victims have been killed and the murderer has been sentenced. There have been cases referred to in submissions today, R v Ying,9 R v Reihana,10 and Malik v R.11 These were all double murders, and the starting points for the minimum terms of imprisonment ranged from 20 to 22 years’ imprisonment. This case was perhaps less serious than R v Reihana where there was a third person also badly stabbed who survived. It was perhaps more
serious than R v Ying where both victims were adults. I agree with the Crown submission that the case does deserve some comparison with Malik v R where there was a different mix of aggravating factors, but a similarity in overall culpability.
[36] So I have considered as I must, other comparable sentences. I have taken into account the features of your offending and I have reached the view that the appropriate starting point for the minimum term that I should impose is 21 years.
Other factors
[37] I now turn to consider whether there are any other aggravating and mitigating factors relating to you.
[38] I will treat you as having no previous violent convictions. So there is no case for an uplift for a bad past record. However, there is no discount for good character warranted. The charges are far too serious for that and given the circumstances leading up to the murders it would not be appropriate to make any allowance under this head.
[39] The issue of remorse has been raised. In my view, you have no moral appreciation of the awful murders you have carried out, or the damage you have
9 R v Ying (2004) 20 CRNZ 1078 (HC).
10 R v Reihana HC Rotorua CRI-2005-070-7328, 19 June 2007.
11 Malik v R [2015] NZCA 597.
done. Your complete refusal, throughout the court process, to acknowledge your role in the murders must mean that there can be no discount for remorse. Indeed, the expression of remorse that you make is really just a furtherance of the lies that you have told, because you say you are remorseful for helping the person you have invented who you say committed the murders. Indeed, although I do not penalise you for this, your protestations of remorse are really just another symptom of your callousness.
Conclusion
[40] So stand up please.
[41] Mr Reddy, this was a shocking and callous double murder. The sentence that I impose must denounce and deter such actions. The sentence that I impose is life imprisonment.
[42] I have reached a starting point of 21 years as the minimum term you will serve, and there are no mitigating factors either relating to the offending or to you personally that would warrant any deduction from that. So I sentence you to serve a minimum term of imprisonment of 21 years. What this means Mr Reddy is that you will stay in prison for at least 21 years, and after that period, as I have said, it will be for the Parole Board to decide whether you should be released or not.
[43] I impose this sentence concurrently in relation to both the murder charges. [44] Please stand down.
……………………………..
Asher J