R v Sharma
[2023] NZHC 1055
•4 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-004-6982
[2023] NZHC 1055
THE KING v
SHAMAL SHARMA
Hearing: 4 May 2023 Appearances:
M Nathan and R Benic for the Crown J Hudson for the Defendant
Sentence:
4 May 2023
SENTENCING NOTES OF WYLIE J
Solicitors/counsel:
Meredith Connell, Office of the Crown Solicitor, Auckland J Hudson, Auckland
R v SHARMA [2023] NZHC 1055 [4 May 2023]
Background
[1]Mr Sharma, you may remain seated until I ask you to stand.
[2] Mr Sharma, you appear for sentence today, having entered guilty pleas to the murder and sexual violation by unlawful sexual connection of Lena Harrap, and to dangerous driving involving a separate victim, Tejal Acharya.
[3] The charge of murder carries a maximum penalty of life imprisonment.1 The charge of sexual violation by unlawful sexual connection carries a maximum penalty of 20 years’ imprisonment,2 and the charge of dangerous driving carries a maximum penalty of three months’ imprisonment and mandatory disqualification from driving for a period of six months.3
Relevant facts
Dangerous driving
[4] On the morning of 21 September 2021, you were driving your motor vehicle in Henderson. The victim, a 26 year old female unknown to you, was jogging along the road. You saw her. You slowed down and stared at her. You then turned into a side road as the victim was crossing the road. You then turned back onto the main road, so that you were travelling in the same direction as the victim. A short time later, you pulled over to the side of the road and spoke to her. You asked her if she knew where another road was. She replied “no” and continued on. You endeavoured to engage her in conversation again. The victim by this stage was feeling uneasy. She cut you off and continued to walk along the footpath.
[5] You drove off and parked in a nearby carpark, in an area where the victim could not see you. You nevertheless continued to observe her and you drove down another road to an intersection where the victim was waiting to cross. You continued to follow her making a series of manoeuvres in your vehicle in order to do so. Ultimately, you accelerated your vehicle as you approached the victim. You swerved abruptly over
1 Crimes Act 1961, s 172.
2 Sections 128(1)(b) and 128B.
3 Land Transport Act 1998, ss 35(1)(b) and 35(2).
the kerb and onto the footpath. She had to run to her right, onto grass beside the footpath, to avoid being hit by your car. You swerved back onto the road and drove away.
[6] You had been following the victim for approximately 20 minutes before you attempted to run her over.
The murder/the sexual violation
[7] I am now going to discuss briefly the murder and the sexual violation. Members of Ms Harrap’s family may want to leave the Court briefly. I will invite you back in when I have finished. [Members of family leave].
[8] The following day, you murdered Ms Harrap. She was a 27 year old female. She had downs syndrome. She suffered from significant visual impairment and had other physical disabilities. She resided with her family and as part of her regular morning routine, she would go for walks around her local area.
[9] Early in the morning of 22 September 2021, Ms Harrap left her home address to begin her morning walk. You were walking on the opposite side of the road, a short distance ahead of her. She was walking at a slow pace. You looked back towards her on several occasions. You then walked a short distance up a bush-lined concrete pathway, pulling off to one side and leaning against a rock wall. From this position, you could see the victim as she walked slowly up the road.
[10] As Ms Harrap walked up the pathway, you approached her and at some point, you assaulted her. You then subjected her to a prolonged assault over a period of approximately two hours. In the course of one attack, you assaulted Ms Harrap to her head. This caused her significant facial injuries. You also sexually violated her. You forcibly inserted either a foreign object or a part of your own body into her vagina. At some point, Ms Harrap died as a result of the injuries she had received from you. You left her body partially concealed amongst the bushes and shrubbery, approximately five metres off the pathway. You then left the area.
[11] When Ms Harrap did not return from her walk, her family became concerned and began to search for her. The police were contacted and there was then an extensive search involving a large number of police staff and others. Ms Harrap’s body was ultimately discovered by a member of the public.
[12] When you were spoken to by the police, you denied being at the scene and you denied having met Ms Harrap.
[13] Ms Harrap’s body was examined by a forensic pathologist on 23 September 2021. She had 13 injuries to her head and face. There were bruises and abrasions to her forehead, cheeks, nose, chin, lips, the top of her head, the left side of her head and around her right ear. Her brain showed focal traumatic axonal injuries consistent with blunt force trauma to the head however the brain injuries alone were insufficient to have caused her death. Her neck had multiple bruises, as did the internal structures of her airways. Ms Harrap’s hard palate, uvula and tonsil region suggested that an object or objects had been inserted into her oral cavity. There were injuries consistent with neck compression and suffocation. Ms Harrap had also suffered injuries to her genitalia which had caused her to bleed profusely. There were three significant lacerations, the largest of which was 30 millimetres long and extended into underlying muscle tissue. These injuries were consistent with an object or objects having been inserted into her vagina with force. There were also superficial lacerations to both of Ms Harrap’s nipples, consistent with bite markings.
[14] The cause of death was identified as the combined effects of neck compression and suffocation. The blunt force head injuries also contributed.
[15] Now if we can ask members of the family to come back in please. [Members of family return].
Victim impact statements
[16] I have received a number of victim impact statements from Ms Acharya, from Ms Harrap’s father, mother, sisters, aunt, cousin, brother-in-law and a close friend.
[17] Ms Acharya told me of her mounting concerns as events unfolded on the morning of 21 September 2021. She noted your arrogance, commenting that you made no attempt to be subtle in following, circling, doubling back and hunting her. She says that she does not know how close you came to hitting her with your car, but that you missed her only because of her actions. She described the guilt she felt when she found out that, on the following day, Ms Harrap had been murdered and violated – guilt because she had “effectively been safe, when [Ms Harrap] hadn’t”. She described in passionate terms the anguish she has suffered as a result of your offending against her and the depths of despair it has driven her to.
[18] Ms Harrap’s family all speak of the loss they have suffered. They comment on the horrendous circumstances of Ms Harrap’s death and their torment when they think of what she had to endure at your hands. Many of them struggle to comprehend your offending and they spoke of the anger that wells up in them when they think of what happened on that day. All say that their lives will never be the same and that Ms Harrap’s death has left an emptiness in their hearts and lives that cannot be filled. Some criticise you for the fact that you maintained your innocence for a period of some 13 months after being arrested, knowing what you had done. Other say that your actions have caused them to lose trust in their fellow citizens.
[19] It is clear from all the various victim impact statements that I have heard that your actions have had a very significant effect upon your victims, their families and their loved ones.
Letter from you
[20] Your counsel, Mr Hudson, has made available to me a copy of a letter you have sent to Ms Harrap’s family. In that letter you offer an apology to the family. You say that there is no excuse for your actions and that you regret what you have done.
Provision of Advice to Courts report
[21] I received a helpful Provision of Advice to Courts report. You are 33 years of age. You were born in Fiji. You moved to New Zealand with your mother and stepfather when you were 10 years of age. When you were aged 27, your father passed
away. Although you have three stepsisters, you do not maintain a relationship with them. You spoke highly of your mother during your interview and described your relationship with her as being “very good”.
[22] You attended both primary school and high school in New Zealand. You completed an engineering course and then a chef’s course. You were employed as a catering assistant for approximately four years. At the time of your offending, you were unemployed. You previously had a role packing aluminium, but your employment was terminated at the end of 2016 because you took too many sick days.
[23] You told the report writer that you used to be a regular church attender, but that your attendance became more sporadic from 2019 onwards. You also advised the report writer that you used alcohol, cannabis and methamphetamine, particularly in recent years. However, the report writer considered there was nothing to suggest that you were under the influence of any of these substances at the time of your offending.
[24] You have a criminal history dating back to 2007, largely for unrelated offending such as alcohol related offending, driving related offending, cannabis offending, dishonesty offending, wilful damage, behaving threateningly and, in one case, unlawfully carrying an imitation firearm.
[25] You did not exhibit any insight into your offending to the report writer. You did state that you had no intention of hurting the victims. In reference to the dangerous driving charge, you stated that you did not intend to run the victim over and that you did not try to do so. In relation to the murder and sexual violation charges, you referred to your mental health difficulties and suggested that they were the catalyst for your offending. You said that you had stopped taking your medication at the time due to side effects it was causing. You also reported suffering from abuse in your younger years, but you were unwilling or unable to further elaborate. You did not describe yourself as violent. It was suggested that your offending related factors are a lack of consequential thinking, an inability to regulate your emotions, an unstructured lifestyle and a propensity for violence. It was also noted that your underlying mental health concerns have exacerbated these factors.
[26] The report writer considered that you appeared to have regretted your actions. You expressed sorrow at your offending and sympathy for the victims and their families. You reiterated that you were mentally unwell at the time.
[27] You were assessed as posing a very high risk of harm to others. It was noted that the only viable sentencing option is imprisonment.
Section 27 report
[28] A s 27 cultural report dated 26 April 2023 was prepared by Ms Stephanie Whittock. You were interviewed by Ms Whittock on 14 April 2023. You engaged well and you were forthcoming with details of your background. Ms Whittock noted that you have experienced several disadvantages which, she considered, have led you to a dysfunctional adulthood, namely, an unstable upbringing, parental separation, the absence of your father, cultural disconnection, substance abuse, abuse and violence and a sense of abandonment. You reported that your stepfather was an alcoholic and that he physically and violently assaulted both you and your mother on a regular basis. You said you were also beaten by your mother. You also reported that between the ages of six and nine you were abused by a family member. While you initially performed well at school, as the abuse progressed, you began to withdraw and you fell behind in your schoolwork. You became withdrawn and befriended anti-social peers who introduced you to drugs and alcohol. At age 14 or 15, you returned to Fiji to meet your biological father and cousins. You spent time drinking alcohol with them. You were introduced to methamphetamine at age 17 or 18 and eventually became addicted to both cannabis and methamphetamine. You also experimented with party pills and cocaine.
[29] At age 18 or 19, you were diagnosed with early psychosis and, after being admitted to a mental institution at age 20 or 21, you were diagnosed with schizophrenia and paranoia. You were treated with aripiprazole and risperidone which caused issues for you. You reported self-medicating with cannabis, methamphetamine and alcohol. Ms Whittock noted that your mental health diagnosis made you paranoid and delusional and have “cost [you] dearly”. You struggled to retain employment and
accommodation due to your conditions. Ms Whittock described you as having “liv[ed] from day to day in a haze of prescription medication, drugs and alcohol”.
[30] For a period of time you lived with your mother. In 2016, she asked you to leave after you allowed the house to be trashed by your friends while your mother was away. Despite asking you to leave, your mother kept in contact with you and encouraged you to approach the Ministry of Social Development. You returned to live with your mother throughout the COVID-19 restrictions however you became abusive towards her and she eventually helped you find other accommodation.
[31] You described having one significant relationship. This relationship however lasted only some two months. You described engaging sex workers.
[32] In 2017, you were remanded at Mt Eden Corrections Facility for approximately three weeks. You were released to a boarding house but left and began living on the streets. You had occasional contact with your mother but you did not have any friends. You described yourself as “lonely, suicidal, homeless”, sleeping and living in your car. You obtained accommodation at the YMCA but you were evicted a few days before your index offending due to fighting. You felt shunned by society and found your paranoia overwhelming. You said that voices in your head were getting louder and that it seemed to you as if people were staring at you all the time.
[33] Since 22 September 2021, you have been on remand or in custody awaiting sentence at the Mt Eden Corrections Facility. You are currently receiving treatment for your mental health conditions and you say that you are more lucid than you have been in a long time. Your paranoia and schizophrenia are currently under control. You are hoping to undertake counselling for the abuse you say you suffered as a child.
[34] Ms Whittock considered that you faced disadvantages and traumatic experiences from your early childhood. She noted the abuse that you were exposed to, and your alcohol and cannabis use from a young age. These influences have been present throughout your adult life. Ms Whittock was of the view that your lack of long term relationships have left you with feelings of inadequacy when you are with women.
Psychiatric assessments
[35] I have received two psychiatric assessments – the first from Dr Fred Bauer, a registered clinical psychologist and the other from Dr Krishna Pillai, a forensic psychiatrist and the clinical director of Auckland Regional Forensic Psychiatry Services.
(a)Dr Bauer’s report
[36] Dr Bauer interviewed you on three separate occasions. He also reviewed several key documents. He considered that you presented as cognitively able, lucid and co-operative. You responded readily to his questions and showed an understanding of the seriousness of your situation. Although you identified as being depressed, a mental health status screen test revealed no issues of concern.
[37] Dr Bauer outlined your background and noted earlier reports on you by Dr Pillai and Dr Joseph. Dr Joseph’s report requires brief comment. It was prepared in 2010. It noted that you then presented with issues including headaches, odd behaviour, talking nonsense, irritability and concerns that you might be hearing voices. You were diagnosed as presenting with “first episode psychosis in the context of escalating polysubstance misuse, against a background of substance misuse starting from the age of 13”. Dr Joseph also recorded that there were three incidents of reported inappropriate sexual behaviour by you between 2009 and 2010. First, you allegedly pulled a women’s dress down at a night club. The second and third incidents were reported to have occurred at your work – you grabbed and kissed a female colleague and you pulled down the pants of another. No charges were laid but you were assessed as demonstrating sexual disinhibition.
[38] Dr Bauer recorded that December 2016 also marked a period of offending for you. He noted that, according to a Provision of Advice to Courts report dated 1 May 2017, you claimed that your behaviour had been affected by your then decision to stop taking your medication.
[39] You reported to Dr Bauer that 2021 marked a year of significant change for you. You stopped attending church, ceased taking your medication regularly and
stopped having regular contact with your mother. You thought that stopping your medication would lead to you having more energy. Instead it led to a destabilisation in your mental health, behaviour and living circumstances. A crisis psychiatric assessment was conducted on 31 August 2021 after you were found hiding in bushes wearing only your underwear. That assessment did not find any evidence of mental illness but noted that you were disinhibited and that you exhibited aggressive and offensive behaviour. Your last contact with mental health services before your index offending was on 7 September 2021. You did not then display obvious signs of mental illness.
[40] Turning to the index offending, Dr Bauer noted that you accept that you murdered and sexually assaulted Ms Harrap but that you said you “didn’t mean to do all of those things”. You claimed diminished responsibility for the offending because you said you were “mentally unwell, demon possessed … and did not have control of [your]self”. You acknowledged that your offending was a “really bad” thing to do and described yourself as “snapping into black mode”. You stated that if you could turn back time it would not have happened. Dr Bauer considered that “[r]egret and remorse were evident”.
[41] Dr Bauer conducted the Millon Clinical Multiaxial Inventory-IV (MCMI-IV) test on you. It is a psychometric instrument designed to help gain an understanding of an individual’s personality style by examining the overall pattern of an individual’s responses to test items. Your profile did not indicate severe personality pathology or a severe clinical disorder; rather, Dr Bauer noted that “it indicated a tendency towards paranoid thinking and depression”.
[42]Dr Bauer stated as follows:
There appears to have been a clear correlation between Mr Sharma’s periods of mental health issues, his general and prior offending, and his index offending. However, while risk-aggravating due to disinhibition and diminished impulse control, this influence is not considered by the writer to be fully causative. Two mental health assessments in the three weeks prior to his index offending did not find obvious signs of mental illness …
[43] Dr Bauer also made various observations about the risk you pose of reoffending in the future. I return to this shortly.
(b)Dr Pillai’s report
[44] Dr Pillai’s report is dated 11 April 2023. It cited a previous report he prepared on 28 November 2021. He also referred to your criminal and traffic histories and an interview with you on 7 March 2023. Dr Pillai also had a telephone conversation with your mother. He outlined your background. He noted that from early 2021 there was a general deterioration in your mental health and social stability. This ultimately led to a period of homelessness, heavy substance abuse and an extensive sexual preoccupation in a lead up to the index offending.
[45] During the interview, you disclosed to Dr Pillai that you had previously been abused between the ages of six and nine and that you had been “smashed up” by your mother. Dr Pillai noted that you had not disclosed either of these matters to him in previous interviews. You denied previously having forced sex on anyone, but admitted violence towards intimate partners in the past. You said that in 2021, you had “smacked [your] missus up” after she “lied to [your] mother”.
[46] When asked about the impact of your offending, you mentioned the victim’s family. You stated that you were “deeply sorry” and “remorseful”. Dr Pillai considered however that you “showed limited insight into the cause of [your] offending, having to be prompted to consider issues …”
[47] Before the index offending, you stated that you had been living in your car for approximately two weeks with no medication or food. You were smoking a lot of methamphetamine which usually triggered sexual feelings. You also stated that the night before the events on 21 September, you had smoked $200 worth of methamphetamine. You said that you were intoxicated on methamphetamine when you drove past the victim of that offending. You described your attraction to both victims. You recalled your interaction with Ms Harrap and thinking it was “too late to turn back” and that you had to “finish the job”. You said that you were “demon possessed” at the time of the offending. Some of the matters you reported to Dr Pillai however are inconsistent with the summary of facts you accepted when you entered your pleas. I discuss them no further.
[48] In line with his assessment in December 2021, Dr Pillai was still of the opinion that you have paranoid schizophrenia but he considered that this illness is in remission. He also noted that you have a history of substance use disorder but that this is also in remission because you are in custody. Dr Pillai stated as follows:
The question of personality disorder is significant. [You have] demonstrated deceitfulness, impulsivity, aggression, rule breaking behaviour and irresponsibility in adulthood. This could be consistent with personality disorder. The extent to which these dysfunctional traits in adult hood [sic] have been preceded by childhood behavioural problems is unclear as the background history regarding [your] childhood is inconsistent. It is possible that these phenomena are a by-product of the substantial substance abuse and the psychotic illness of onset in [your] early 20s. In any event whether primary or secondary to substance use disorder and psychosis these traits may create significant barriers to [your] treatment and rehabilitation in the future.
He noted that you are currently accepting treatment on a voluntary basis, that you are under regular supervision and that you are in contact with mental health services whilst in custody.
[49]Again, I will return to Dr Pillai’s report shortly.
Submissions
[50] Mr Nathan, for the Crown, submitted that a sentence of life imprisonment should be imposed in relation to the charge of murder, that an adjusted minimum period of imprisonment of 22-23 years should be imposed, that a further sentence of preventive detention is appropriate for the sexual violation offending and that a concurrent sentence is appropriate for the dangerous driving offending, with a mandatory order of six months’ disqualification from driving, notwithstanding that you will be incarcerated.
[51] Mr Hudson, on your behalf, accepted that a sentence of life imprisonment is appropriate for the charge of murder. He argued that the starting point for the minimum period of imprisonment should be 20-21 years, with reductions to take into account your mental health disorder, your guilty pleas, the remorse you have expressed and the factors raised in the s 27 report. He argued that following adjustment, the final minimum period of imprisonment to be imposed should be in the vicinity of 19 years. He argued that a sentence of preventive detention is not appropriate for the sexual
violation offending and that rather, a concurrent sentence of nine and a half years’ imprisonment should be imposed for that offending. Finally, he argued that a concurrent sentence of one month imprisonment is appropriate for the dangerous driving offending, together with mandatory disqualification for a period of at least six months.
Principles and purposes of sentencing
[52] In sentencing you, I have considered the principles set out in ss 7 and 8 of the Sentencing Act 2002.
[53] I have had regard to the need to hold you responsible for your offending, the need to promote in you a sense of responsibility for and an acknowledgment of that offending and, importantly in this case, the need to denounce the appalling conduct in which you were involved. I have also been mindful of the need to deter others from committing the same or similar offences. I have taken into account the gravity of your offending, including your culpability. I have considered the seriousness of the offending, as well as the general desirability of consistency of appropriate sentencing levels between similar offenders committing similar offences. I have had regard to the relevant aggravating and mitigating factors identified in s 9 of the Sentencing Act.
Analysis
[54]I start with the charge of murder. It is the lead charge.
[55] The Crimes Act 1961 provides that everyone who commits murder is liable to imprisonment for life.4 The presumption of life imprisonment reflects the value Parliament places on the sanctity of human life and its intention that those who commit murder should be sentenced to the maximum possible penalty available under New Zealand law.5
[56] The presumption of life imprisonment is subject to s 102 of the Sentencing Act. It records the presumption in favour of life imprisonment and requires the Court to
4 Crimes Act 1961, s 172.
5 R v Van Hemert [2021] NZCA 261 at [35].
impose that sentence unless, given the circumstances of the offence and the offender, a sentence of life imprisonment would be manifestly unjust.
[57] Before the Court displaces the presumption, it must be satisfied that both the circumstances of the murder and the offender are such that life imprisonment would be manifestly unjust.6 The assessment of whether a sentence of life imprisonment for murder is manifestly unjust requires an overall assessment.7 It is a conclusion likely to be reached in exceptional circumstances only.8
[58] In my view, a sentence of life imprisonment is clearly appropriate in your case. There are no circumstances which render such sentence manifestly unjust.
[59] The only factor potentially impacting on whether it is manifestly unjust to sentence you to life imprisonment is your mental health status. However, offenders suffering even from serious mental health issues at the time of offending can still be sentenced to life imprisonment if the offending was particularly aggravated,9 and it is only in rare cases that the Courts have been persuaded that offenders who are suffering from even severe mental illness should avoid a sentence of life imprisonment for murder.10 In those cases where the Courts have departed from the presumption of life imprisonment on the grounds of mental illness, the illness was found to be causative of the offending, the offender presented no risk to the community and the offender exhibited the potential for rehabilitation.11
[60] Here the materials before me suggest that the mental health difficulties which you suffer from were not directly causative of your offending; they were relevant but they were not fully causative. Further, you continue to present a risk to the community. A sentence of life imprisonment helps protect the public from the risk you pose.12
6 At [37].
7 R v Rapira [2003] 3 NZLR 794 (CA) at [121].
8 At [121]; Tu v R [2023] NZCA 53 at [26].
9 Tu v R, above n 8 at [27].
10 R v Van Hemert, above n 5 at [40].
11 Tu v R, above n 8, at [27], citing R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011; R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775; R v Cole [2017] NZHC 517.
12 R v Van Hemert, above n 5, at [41] citing R v Yad-Elohim [2018] NZHC 2494; R v Morris [2012] NZHC 616; R v Mikaele HC Auckland T013638, 30 August 2002. Skilling v R [2011] NZCA 462; Momoisea v R [2019] NZCA 528 at [19].
[61] The Crown and Mr Hudson, on your behalf, agreed that a sentence of life imprisonment is appropriate for the murder charge. I agree. I do not consider that the impact of your mental health status on either you or on the circumstances of your offending justifies a sentence less than life imprisonment.
[62] Section 103 of the Sentencing Act requires that when the Court sentences an offender convicted of murder to imprisonment for life, it must also order that the offender serve a minimum period of imprisonment. The minimum period of imprisonment must be not less than 10 years and must be the minimum term necessary to satisfy all or any of the following purposes:
(a)to hold the offender accountable for the harm done to the victim and the community by the offending;
(b)to denounce the conduct in which the offender was involved;
(c)to deter the offender or any other person from committing the same or a similar offence; and
(d)to protect the community from the offender.
A minimum period of imprisonment of 17 years or more must be imposed if any of the factors listed in s 104 of the Sentencing Act are engaged, again unless it would be manifestly unjust to do so. If s 104 is engaged in several distinct respects, a starting point higher than 17 years can be appropriate.13
[63]There are a number of the s 104 factors which apply in your case:
(a)s 104(1)(a) – attempt to avoid detection. The Crown submitted that the murder was committed in an attempt to avoid detection for your assault on and sexual violation of Ms Harrap. Mr Hudson acknowledged that you murdered Ms Harrap in the course of sexually assaulting her. He
13 Geoff Hall Hall’s Sentencing (online ed, LexisNexis) at [SA104.1] citing R v Baker [2007] NZCA 277; Skilling v R [2011] NZCA 462; Momoisea v R [2019] NZCA 528 at [19].
also accepted that while Ms Harrap’s death occurred in the course of the sexual and physical assault, it could also be described as an attempt to avoid detection. In my view, Mr Hudson’s acknowledgement was appropriate. I note your comment to Dr Pillai that you “had to finish the job”. In my view, s 104(1)(a) is engaged;
(b)s 104(1)(b) – calculation or lengthy planning. The Crown accepts that your choice of victim was impulsive and opportunistic. It notes however that the murder of Ms Harrap was preceded by your predatory stalking and attempt to run over Ms Acharya the previous day. It argues that this offending was also sexually motivated and that your actions indicate a heightened level of premeditation and an intention to sexually assault and harm women prior to the murder of Ms Harrap. Mr Hudson on your behalf denies this. While I accept that you were sexually preoccupied at the time, I do not consider that Ms Harrap’s murder involved any calculated or lengthy planning. As Mr Nathan acknowledged in his oral submissions this morning, your meeting with Ms Harrap was a matter of pure coincidence. The two sets of offending were very different in nature. The fact that they were committed on consecutive days does not to my mind demonstrate calculated or lengthy planning. I do not consider that s 104(1)(b) is engaged;
(c)s 104(1)(d) – the murder was committed in the course of another serious offence. Neither counsel mentioned this factor in their written submissions, but I raised it with them this morning. Both submitted that it overlaps with the s 104(1)(a) factor which I have already discussed. I agree with that analysis. While your version of events presented to Drs Bauer and Pillai is different from that in the summary of facts you accepted when you entered your pleas, it seems that the murder was committed in the course of the sexual violation by unlawful sexual connection of Ms Harrap, to my mind s 104(1)(d) is engaged
(d)s 104(1)(e) – a high level of brutality, cruelty, depravity or callousness. The injuries inflicted on Ms Harrap in the course of the prolonged
assault which she was subjected to demonstrate that your offending involved a high level of brutality, cruelty, depravity and callousness. Mr Hudson properly acknowledged the presence of this factor. It clearly applies; and
(e)s 104(1)(g) – the vulnerability of the deceased. As I have already noted, Ms Harrap was highly vulnerable. Again, this was acknowledged by Mr Hudson.
[64] In my view, the murder you committed featured the aggravating factors noted in subs 104(1)(a), (d), (e) and (g) of the Sentencing Act although I accept that there is an overlap between the s 104(1)(a) and (d) in this case. Given that s 104(1) applies, I must therefore impose a minimum period of imprisonment of not less than 17 years, unless it would be manifestly unjust to do so.
[65] There is nothing to suggest manifest injustice and counsel did not suggest otherwise.
[66] To determine whether to adopt a starting point minimum period of imprisonment of 17 years, or some longer period, I must assess your degree of culpability by reference to the aggravating and mitigating features of your offending.
[67] As I have noted, there were a significant number of aggravating features to your offending. I do not double count these but I do observe that the aggravating features of your offending which I have identified, were at the highest level. The harm caused by your offending could also not have been more serious. Ms Harrap lost her life.
[68]There are no mitigating features to your offending.
[69] I must also try and ensure a level of consistency between the minimum period of imprisonment you will serve and the minimum periods of imprisonment imposed on other offenders who have committed similar offences.
[70] I have considered the various authorities referred to me by counsel.14 Each turns on its own facts. Minimum periods of imprisonment ranging from 19 to 24 years have been adopted by the Courts for broadly similar offending.
[71] The Crown submits that the starting point minimum period of imprisonment in your case should be 25 years. It argues that this starting point reflects that Ms Harrap, because of her disabilities, was profoundly vulnerable, and that this factor justifies a higher starting point than that which has been taken in comparable cases. Mr Hudson submitted that the starting point sought by the Crown is excessive and overstates the vulnerability of Ms Harrap when your offending is compared to similar offending. He argued that a starting point of 20 to 21 years is more appropriate.
[72] In my judgment, a starting point minimum period of imprisonment of 22 years is appropriate in your case. The features of your offending bear a resemblance to some of the comparable cases. I refer in particular to R v Robertson,15 where a minimum period of imprisonment of 24 years was adopted by the sentencing Judge. It was not disturbed on appeal. Both the victim in that case and Ms Harrap were vulnerable and the offending in both cases was cruel, callous, depraved and brutal. A slightly lower starting point for the minimum period of imprisonment is justified in your case, because unlike Mr Robertson, you were not on release conditions at the time of your offending. You were however on bail.
[73] In my view, a starting point minimum period of imprisonment of 22 years properly recognises your culpability and the aggravating features of your offending. It is broadly in line with the various authorities referred to me by counsel.
14 Robertson v R [2016] NZCA 99—sentencing for rape and murder—murder was exceptionally cruel and brutal. Victim particularly vulnerable and suffered greatly. Minimum period of imprisonment of 24 years not disturbed on appeal; R v Tainui [2019] NZHC 626—sentencing for rape and murder—before accounting for guilty pleas, a starting point minimum period of imprisonment of 23 years was considered appropriate; R v Borton [2019] NZHC 2662—violence and sexual assault on a mother and her daughter. Offender killed mother in order to sexually assault the child. Starting point minimum period of imprisonment of 21 years; R v Brider [2023] NZHC 56—murder and sexual abduction. Minimum period of imprisonment of 23 years, uplifted by 18 months to reflect offender’s criminal history and the fact that he offended whilst on release conditions; R v Reid [2009] NZCA 281—rape and murder of one victim and rape, attempted murder and robbery of a second victim. First victim vulnerable. Minimum period of imprisonment of 26 years’ imprisonment adopted by the High Court—reduced to 23 years on appeal; R v Cameron HC Christchurch CRI-2008-009-6389, 24 August 2009—rape and murder of 15 year old girl. Minimum period of imprisonment of 19 years.
15 R v Robertson [2015] NZHC 1849.
[74]I now turn to consider factors personal to you.
[75] As I have indicated, you have a modest criminal history. Notably you have no previous convictions for serious violence or sexual offending. No uplift to the minimum period of imprisonment was sought by the Crown for your criminal history, and I do not consider that one is appropriate.
[76] Counsel were agreed that the minimum period of imprisonment imposed on you should be discounted to allow for your mental disorder. They disagreed as to the appropriate length of any discount. The Crown suggested that a discount of one to two years is appropriate. Mr Hudson submitted that a discount of three years is more appropriate.
[77] As I have noted, your mental health disorder is relevant to your offending, albeit that it was not the direct cause of it. Dr Pillai considered that there were three causative factors – your psychosis, your drug and alcohol abuse and your personality disorder. While you say that you were suffering from hallucinations when you murdered Ms Harrap, it is difficult to place too much reliance on this self-serving assertion. Medical health assessments conducted only a matter of weeks before your offending recorded that you did not then display any obvious signs of mental illness, that you were taking your medication and that you did not want any further contact with Mental Health Services. It is noteworthy that you decided to cease taking your medication shortly prior to your offending. You were involved in an earlier spate of offending in 2016. You then claimed that your behaviour had been affected by a decision you made at that time to stop taking your medication. You must have been aware of the resulting problems for you, but you nevertheless decided to stop taking your medication again in 2021, and instead to resort to alcohol and illicit drugs. I also note advice I received from the Crown that immediately following the commission of the murder and sexual offending, you had the presence of mind to offer deliberate falsehoods to distance yourself from what occurred. When you were arrested by the police and interviewed, you denied any involvement in the offending.
[78] Mental health issues can be engaged in the sentencing process. They can affect the starting point sentence and they can also operate as a mitigating factor.16
[79] In my judgment, your mental health disorder entitles you to a relatively modest discount. Your disorder does not appear to have contributed significantly to your offending. Other offenders who have obtained discounts for mental health disorders have, for example, had ongoing delusions and acute psychotic symptoms at the time of their offending.17 There is little or nothing to suggest that you suffered from such difficulties at the time you offended. Your mental health disorder goes some way towards explaining why you were living in chaotic circumstances, which perhaps made your offending more likely.18 Your schizophrenia explains why you were homeless at the time. It may also explain why you decided to cease taking your medication but it was not the direct cause of your offending.
[80] In my judgment, a reduction to the minimum period of imprisonment of 18 months is appropriate to recognise your mental health disorder. Such a reduction recognises the difference in culpability between you and a person who is otherwise in good mental health.19
[81] Your guilty plea should also attract a discount. It has avoided a trial for Ms Harrap’s family. However, discounts for guilty pleas in cases of murder do not adopt the customary methodology for guilty plea discounts. Deductions for guilty pleas in cases where s 104 of the Sentencing Act is engaged are more limited than discounts allowed in so called “ordinary” sentencings.20 Ordinarily discounts for guilty pleas apply to finite sentences which fix a maximum term of imprisonment after considering all relevant sentencing factors. The legislative policy in s 104 is intended to limit the credit that can be given for mitigating factors, including guilty pleas.21
16 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [45]–[48]; E (CA689/10) v R [2011] NZCA
13, (2011) 25 CRNZ 411; R v Yad-Elohim, above n 12.
17 See R v Yad-Elohim, above n 12.
18 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
19 Hall v R [2021] NZCA 314.
20 Malik v R [2015] NZCA 597.
21 R v Brider, above n 14, at [68]; Momoisea v R, above n 13 at [36].
[82] The Crown submitted that a discount of 12 months for your guilty plea is appropriate. It argued that the plea came at a late stage and that you were faced with an overwhelming case. Mr Hudson submitted that your guilty plea was timely and that a discount of 18 months was appropriate to reflect the same.
[83] You entered your guilty pleas on 20 October 2022, some 13 months after your offending and after you were charged. Your trial was scheduled to commence some three and a half weeks later – on 14 November 2022.
[84] The plea came at a late stage. I accept that you were arrested and then placed in custody on remand when the prison was closed because of the COVID-19 pandemic. Also you had to be assessed by various health assessors. Even so, your plea was, in my view, very late. Further, you faced an overwhelming Crown case. You were captured on CCTV immediately prior to Ms Harrap’s murder as you watched her. You were then captured on CCTV leaving the scene of the murder some two hours later. You were not wearing your shirt and jersey, which you had earlier been wearing. Your abandoned clothing had been left with the deceased. It was heavily bloodstained. Your DNA was on the clothing found at the scene and in swabs taken from Ms Harrap’s clothing and body. The shoes and the pants you wore during the murder were seized on your arrest. This clothing was bloodstained and Ms Harrap’s DNA was found on it.
[85] In the circumstances, I consider that you are only entitled to a discount of one year for your guilty plea.
[86]I have also considered the s 27 report and the remorse you claim to express.
[87] I accept that you appear to have had a difficult childhood, characterised by difficult relationships with key adults in your life, with abuse in the household and with dysfunctional parents, albeit that you maintained a good relationship with your mother. I also accept that you resorted to alcohol and then drugs at an early age, and that as a result you have suffered from poor educational outcomes and resorted to further substance abuse.
[88] As the Supreme Court has noted, there will always be connections between the different dimensions of an offender’s background and his or her choice to offend, although the nature and strength of such connections varies.22 Where the background was an operative or proximate cause of the offending, this is likely to be a potent sentencing factor. If the background was a causative contributor to the offending, it will also be relevant to the sentencing task. This test however must still be satisfied. There is a point at which background factors no longer assist in explaining the offending.23
[89] Here, there is nothing in the s 27 report to suggest that your difficult and dysfunctional background was a causative contributor to the horrific offending in which you engaged.24 I am not satisfied that the matters disclosed in the s 27 report justify any further discount.
[90] Nor do I consider that the remorse you profess justifies any discount. The report writer who prepared the Provision of Advice to Courts report and Dr Pillai question the sincerity of your remorse. Dr Bauer seemed more convinced by it. In my view, your remorse is too late and I am suspicious of its sincerity. Insofar as I can glean, you have little or no genuine insight into your offending. You sought to minimise aspects of your offending when you were interviewed by both Drs Bauer and Pillai. I suspect that the remorse you have expressed is driven largely by the circumstances you now find yourself in.
[91] It follows that I am prepared to allow you a total discount of two years and six months from the minimum period of imprisonment I would otherwise have imposed.
[92] For the sake of completeness, I record that I have considered the possibility of dealing with you under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Counsel did not raise this option in their written submissions and Dr Pillai considered that it was inappropriate. You are currently fully cooperative with your treatment and medication and the compulsory care provisions under the mental health
22 Berkland v R, above n 18 at [107].
23 At [109]–[110].
24 And see, [111].
legislation are unnecessary for you at this stage. The rehabilitation you need is available without support from mental health services and whilst you are in custody and the evidence suggests that you are well enough to access the appropriate programmes. I do not consider that disposition under s 34 is appropriate in your case.
Preventive detention
[93] I turn to consider preventive detention and your sexual offending. The Crown seeks a sentence of preventive detention for your sexual offending of Ms Harrap.
[94] The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members. The sentence has a preventive and not a punitive purpose.25 If such a sentence is imposed, you will be imprisoned indefinitely, with your actual date of release being determined by the Parole Board.
[95] A sentence of preventive detention can be imposed only in certain defined circumstances. In particular, the Court must be satisfied that the person in respect of whom the sentence is sought is likely to commit another qualifying sexual or violent offence when that person is released at their sentence expiry date. In your case, that will not be until early 2041 at the earliest.
[96] Where preventive detention is in contemplation, the Court must first determine what finite sentence it would have imposed if it were not considering imposing a sentence of preventive detention.
[97] Here, your sexual offending had various aggravating features. First, you assaulted Ms Harrap. Secondly, the violence you inflicted on her in the course of the sexual assault was of the highest degree. It was depraved and sadistic. You caused significant injuries to her. Further, and as already noted, Ms Harrap was highly vulnerable.
25 R v Johnson [2004] 3 NZLR 29 (CA).
[98] There is a guideline judgment which assists in sentencing for such offending – R v AM.26The Court of Appeal there grouped sexual offending into four bands, depending on the presence and number of any aggravating features the offending involves. It suggested the appropriate sentencing range for each band. The Crown submitted that your offending fell at the high end of band three offending, attracting a starting point sentence of 12 to 18 years’ imprisonment. Mr Hudson accepted that this was appropriate.
[99] Band three offending encompasses sexual offending accompanied by aggravating features at a relatively serious level. It is appropriate for cases where there is a high degree of culpability and two or more aggravating features, including where there is a particularly vulnerable victim and serious additional violence. Particularly cruel, callous or violent episodes of offending involving rape fall into this band. I agree that your offending falls into band three.
[100] I am satisfied that, as a stand-alone offence, your sexual offending attracts a starting point sentence of 15 years’ imprisonment. I accept that you would have been entitled to a discount for your mental health disorder in the range of 15 per cent (or 27 months) and a discount for your guilty plea of 10 per cent (or 18 months), recognising that it was entered late and in the face of a very strong Crown case. That would have resulted in an end sentence of 11 years and three months’ imprisonment. The minimum period of imprisonment I would have imposed would have been two thirds of that sentence – seven years and four months.
[101] Section 87(4) of the Sentencing Act sets out the factors I have to take into account in determining whether or not to impose a sentence of preventive detention. It provides as follows:
4When considering whether to impose a sentence of preventive detention, the court must take into account—
(a)any pattern of serious offending disclosed by the offender’s history; and
26 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
(b)the seriousness of the harm to the community caused by the offending; and
(c)information indicating a tendency to commit serious offences in future; and
(d)the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
(e)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.
[102] The reports I have obtained from Drs Bauer and Pillai address these various factors.
[103] Dr Bauer used several psychometric tests in an endeavour to assess the risk you pose of further violent or sexual offending.
(a)Your risk of sexual reoffending was assessed using the STATIC-99R and STABLE-2007 risk assessment tools. These tools assessed you as being in the well above average risk category.
(b)Your risk of serious violent reoffending was assessed using the HCR- 20 v 3 assessment tool. You were assessed as posing a moderate risk of committing serious violence.
Risk management recommendations included continued mental health oversight, treatment programs and a comprehensive safety plan prior to your release.
[104]Dr Bauer stated as follows:
If [you] were to seriously reoffend, it would likely be sexually motivated and may be accompanied by violence while controlling the victim. Precursors to potential future sexual offending by [you] would likely include general destabilisation in his circumstances, thinking, and behaviour, mental health issues, and non-compliance with prescribed psychoactive medication as a key risk-aggravating factor. Early warning signs would include [you] reporting feelings of depression/stress, and expressing discontent with the side effects of his medication, such as a cognitive "slowness", and loss of libido or erectile function. In the event that [you] were to sexually reoffend, the victim would likely be a female over 16, unknown to him and vulnerable through location or disability. [You] would likely approach the victim in circumstances where
[you] could subdue her physically without apparent witnesses. Once he commenced, [you] would likely continue in subduing the victim by serious violence inflicting serious harm (including fatal) until she was unable to resist [your] sexual violation, which might include violent aspects to it as well. Such offending would likely end only with the culmination of [your] sexual violation and sexual gratification.
[105] Discussing the factors relevant to the Court’s assessment under s 87 of the Sentencing Act:
(a)Dr Bauer considered that you do not show a pattern of serious offending. Prior to your current offending, your offending history includes general offences and two low-level violence offences. There are three instances of reported unwanted sexualised behaviour towards females in early adulthood, but these were not prosecuted.
(b)Dr Bauer was of the view that there is a high risk of you committing a serious sexual offence in the future, enduring for some five years in the community following your release. Compliance with prescribed psychoactive medication and psychological treatment programmes would likely serve as partial risk-mitigation/public protection measures.
(c)Dr Bauer noted that since the index offending and while you have been in custody, you have complied with your prescribed medication. This is relevant in managing your risk of serious reoffending. You have also expressed a willingness to participate in further treatment to address the possible causes of your offending.
[106]Ultimately, Dr Bauer was of the view that:
From a psychological risk-needs perspective, there is a pathway towards risk mitigation and management for [you], which includes (but is not limited to) psychoactive medication controlling his mental health issues, relevant psychological treatment/interventions targeting violent sexual offending risk factors, a safety plan specifying enduring community supports following potential release in the future, and supervision in the community. However, [your] compliance in the long term cannot be guaranteed. In the opinion of the writer, there is a feasible pathway via a lengthy determinate sentence to provide
adequate protection for society against serious sexual reoffending by [you], subject to [your] lifetime compliance with such a pathway.
[107] Dr Pillai said that it is difficult to provide the Court with an accurate picture of your risk of future sexual offending. He noted as follows:
Such an assessment can only be carried out based on current information regarding [your] risk and is predicated upon [your] attitudes, emotional state and the psychosocial circumstances at this time. It is difficult to prognosticate as to [your] risk at the time of a future release to the community after a period of imprisonment. It is possible that [your] risk at that time could be less than now due to continued improvement in [your] condition, growth in [your] insight, and participation in treatment around [your] substance abuse and sexual offending. It is also possible that in the intervening time the risk could increase due to other factors not foreseen at this time.
[108] Dr Pillai administered the STATIC 99R and SVR 20 v 2 tests. On the Static 99R test, you were placed in the “well above average” risk category—a category of offenders with a 25 per cent risk of sexual recidivism within 10 years. On the SVR 20 v 2 test you exhibited several prominent risk factors: substance abuse, sexual deviance, psychotic illness and personality disorder. All of these factors require treatment to reduce risk and your personality disorder may present a barrier to treatment as you seek to minimise your own responsibility and blame others.
[109]Turning to the s 87 factors, Dr Pillai considered that:
(a)your pattern of serious offending is “incredibly concerning”. You targeted a vulnerable member of the community and, while there is no previous history of similar or sexual offending, the events of the previous day indicated that such an attack was likely premediated. Additionally “the reported hyper sexuality and continued preoccupation with sexual conquest indicate a concerning pattern of sexualised behaviour” and “a pathway for future offending if the underlying issues are not mitigated”;
(b)you share characteristics with a group of offenders who pose a well above average risk of reoffending in a sexual manner, although many of the risk factors can be addressed during a period of incarceration; and
(c)you have not yet had the opportunity to address the underlying root causes of your offending. This is your first conviction for violent offending and the first time that such concerning sexual risks have been identified for you. You have some indicators of suitability for psychological therapy. You have shown the capacity to maintain stable employment and to avoid criminal conviction in the past. However, the inconsistent information you have provided suggests you continue to minimise responsibility for your offending.
[110] Ultimately, Dr Pillai considered that “[t]he prognosis for sustained risk reduction is unknown”.
[111] I have taken these reports into account as I am required to do by the Sentencing Act. I turn to briefly consider each of the s 87(4) matters.
(a)You have no previous convictions for serious violence or sexual offending. While Dr Pillai expressed the view that your behaviour in the days preceding your sexual offending raised matters of serious concern, suggesting that you targeted Ms Acharya, I do not, in context, consider that that was offending of the same level of seriousness. I am not persuaded that your history discloses a pattern of serious offending.
(b)I accept that the seriousness of the harm you have caused to the community by your index offending is at the highest degree.
(c)I also accept from the experts reports that you exhibit a tendency to commit serious offences in the future.
(d)You have not previously had the opportunity or sought to address the causes of your offending. Both Dr Bauer and Dr Pillai agree that your mental health disorder is likely to be addressed whilst you are in custody. You are currently managing your medications well. You have expressed a willingness to engage in rehabilitation.
(e)The principle that a lengthy determinate sentence is preferable if it provides adequate protection for society applies in your case, but only so long as you remain on your prescribed medication and respond positively to the rehabilitation courses you will be offered.
[112] Ultimately, I must ask myself pursuant to s 87(2)(c) of the Sentencing Act whether you are likely to commit a qualifying sexual or violent offence when you are ultimately released. In my judgment, it is not possible to conclude, on the evidence currently before the Court, that you are likely to present a risk to the public when you are ultimately released into the community. Dr Bauer considered that treatment and continued use of your medication is a feasible pathway to protecting society and Dr Pillai, while considering that you present a high risk, was unable to reach an ultimate conclusion on the future risk you pose, given the potential rehabilitative measures that can be undertaken whilst you are in custody. Following the expiry of your minimum period of imprisonment for Ms Harrap’s murder, you will still be subject to a sentence of life imprisonment. You will be required to satisfy the New Zealand Parole Board that you should be released. If released, you will remain subject to recall for the rest of your life. In addition, there are other options which may be open to the Department of Corrections under the Parole Act 2002 when the minimum period of imprisonment expires if your release seems likely.
[113]I decline to impose a sentence of preventive detention on you.
Sentence
[114]Mr Sharma, will you please stand.
[115] Members of the media, I remind you that there is no photograph or filming permitted at this point.
[116]Mr Sharma:
(a)In respect of the murder of Lena Harrap, I sentence you to life imprisonment. You are to serve a minimum period of imprisonment of 19 years and six months for Ms Harrap’s murder.
(b)In respect of the sexual violation by unlawful sexual connection of Ms Harrap, I impose a sentence on you of 11 years and three months’ imprisonment with a minimum period of imprisonment of seven years and four months. This sentence is to be served concurrently with the sentence for murder.
(c)In respect of the dangerous driving charge, I impose a sentence on you of two months’ imprisonment, also to be served concurrently. I also make an order disqualifying you from driving for a period of six months. I am required to do so by law, notwithstanding that you will be in custody throughout that six month period.
[117]Mr Sharma, you may stand down.
Wylie J
0
15
0