R v Skantha

[2020] NZHC 442

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-012-000310

[2020] NZHC 442

THE QUEEN

v

VENOD SKANTHA

Hearing:

6 March 2020

Counsel:

R P Bates and R D Smith for the Crown

J H M Eaton QC and J Oliver-Hood for the Defendant

Judgment:

9 March 2020

SENTENCING REMARKS OF NATION J

[1]    I am going to begin my remarks by acknowledging the presence of the family and friends of Amber-Rose Rush. I particularly acknowledge those who provided victim impact statements. I appreciate the courage of Jayden Rush in reading his. I can understand fully why others felt they were unable to read theirs but all can be assured that I have read those statements carefully and I would expect, in the normal way, that Mr Eaton would have made sure that Dr Skantha was aware of what was in those reports. Those reports were provided to make sure the Court, and that is me as the sentencing Judge, and also Dr Skantha are fully aware of the terrible consequences the murder of Amber-Rose has had on all those who were close to her. I appreciate that, preparing those statements originally and revisiting them for this sentencing, will have been painful for you. You have, however, done all you can to ensure the Court is fully informed as to the effects of Dr Skantha’s offending. That is a matter which,

R v SKANTHA [2020] NZHC 442 [9 March 2020]

along with a number of other matters, the Court must take into account in sentencing Dr Skantha.

[2]    I hope the fact you have done those things has brought you some comfort and that it brings you some comfort, and helps you move on from the intense grief and stress you have suffered through to this point, and which I appreciate will continue to be part of your lives for a long time, perhaps always.

[3]    You will however appreciate that Dr Skantha is charged with his offending because of the ways it was alleged he committed a serious crime. The prosecutions were brought by the State, on behalf of the community, in the name of the Crown. The sentences I must impose have to be fixed in accordance with legislation and the precedents available from other cases. The appropriate sentence cannot be determined through trying to find some way of compensating you for your loss and I cannot try and do that. All I can say is that, in arriving at an appropriate sentence in the way I am required to, those of you who made victim impact statements have made me aware of how the murder of Amber-Rose has affected each of you.

[4]    Dr Skantha, in January 2018, you were 30 years old. You had qualified with a Bachelor of Medicine and Bachelor of Surgery from the University of Auckland in 2015. In 2017, you took up a position as a junior doctor at the Dunedin Public Hospital. During 2017, your life went off the rails. You were drinking alcohol excessively. You had disciplinary issues at the hospital and were on a final warning. You began socialising with various people much younger than yourself, often this socialising was at your home. On occasions, you supplied them with alcohol. They no doubt took advantage of the way you were willing to indulge them. But, you also behaved with some females in ways that put you at risk of at least being suspected of criminal sexual offending.

[5]    On Friday 2 February 2018, between 7.43 pm and 11.34 pm, you were involved in messaging with Amber-Rose. She was talking about going to the hospital and the Police and telling them about how you turned up at work drunk, supplied alcohol to minors and touched them up without consent. At 11.18 pm, she sent you a message saying she was going to make sure everybody knew what you had been doing,

including your work and the Police. At 11.21 pm, you asked if she was serious. She replied, “best believe I am”.

[6]    You were made aware that some of these postings had been put on-line and conveyed to others. You then arranged to meet up with a 16 year old associate who frequently drove your car in taking you to places. You picked him up about 11.41 pm. You were wearing dark clothing, a beanie and gloves. You told him you had a “master plan”. You had him drive you to outside Amber-Rose’s home. You had the associate explain to you just where her bedroom was and also where to find a spare key which was outside the house. Amber-Rose was in her bedroom, probably using earphones connected to her phone. Nearby in another bedroom her mother and her mother’s partner were sleeping.

[7]    You entered Amber-Rose’s room, smothered her with a pillow and, using a knife you brought with you, made a deep cut to the left side of her neck, cutting part of her left ear through to the front of her neck, and causing massive bleeding from which she soon died. There were also two non-fatal stab wounds to the back of her neck.

[8]    You were able to kill Amber-Rose without waking her mother and mother’s partner.

[9]    You took Amber-Rose’s cell phone, left the address and went out to the car. The associate drove you to Blackhead Quarry where you attempted to dispose of the cell phone which you had also tried to smash. You then went to your home in Fairfield where you had your associate help in cleaning your car.

[10]   You and he then drove to Balclutha to the address of a person with whom you had been in a relationship. She had expected you to arrive the previous evening because she had some documents for you to sign. When you did not turn up, she no longer expected you.

[11]   When in Balclutha, you told your young associate and demonstrated to him what you had done. You threatened that, if he told anyone, you would kill him and

members of his family. You spent the rest of that night and Saturday in Balclutha. During the Saturday morning, you went to the Warehouse and bought a pot. Back at the address where you were staying, you burnt certain clothes in that pot. On the Saturday, you learnt that others knew Amber-Rose was dead. On the Sunday, you, the associate and your then friend returned to Dunedin. You met with Amber-Rose’s mother. Unbeknown to you, a Police officer was also present at that meeting. You professed sympathy to her and suggested other people who might have been involved. The young associate was not one of those people. You returned the associate to his home, making it clear to him he was not to tell anyone about what you had admitted to.

[12]   Over the Sunday, you endeavoured to communicate with the associate, consistent with your being agitated at not knowing where he was or what he was doing.

[13]   The Police located you on the Sunday evening. You voluntarily went to the Police station and participated in an interview. You denied having anything to do with Amber-Rose’s death. And you still do.

[14]   I must now sentence you. You were found guilty of Amber-Rose’s murder as well as four charges of threatening to kill relating to the way you threatened the associate that you would kill him and members of his family if he told anyone about what you had told him. As I have said, you continue to deny that you offended in any of the ways that you were found guilty of. Your counsel has said you will be appealing the verdicts on the basis there was a miscarriage of justice. That is your right. Your protestations as to your innocence mean that I have no explanation as to how someone, who had the discipline and intelligence to train as a doctor and whose vocation should have been to preserve life, could come to kill a young woman in the way you did.

[15]   As you have heard, I have had detailed submissions from both the Crown and your counsel Mr Eaton. So, I have been familiar before now with the particular submissions that have been made, the legal principles that have been referred to.

Sentencing for murder

[16]   Murder attracts a presumption of life imprisonment unless this would be manifestly unjust.1 I know, from the submissions presented by your counsel, that you accept you will be sentenced to life imprisonment.

[17]   The minimum term of imprisonment, before parole may be granted, is 10 years but, pursuant to s 104 Sentencing Act, the Court must impose a minimum term of imprisonment of 17 years if the murder occurs under certain circumstances, unless this would be manifestly unjust.2

[18]The approach to s 104, set out in R v Williams, requires the Court:3

(a)  firstly, to consider the degree of culpability in relation to the range of murders that come before the courts, including factors relevant to the offence and the offender. I must have regard to the policy of s 104 that, in general, the presence of one or more of the s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years; and

(b)  secondly, I am required to consider if a minimum term of 17 years would be manifestly unjust to you.

[19]   The Crown and your counsel both recognise that s 104 Sentencing Act is engaged, requiring the Court to impose a minimum term of 17 years. It is not suggested for you that the circumstances of this murder are such that it would be manifestly unjust to impose a minimum term of 17 years. With the submissions I have received from both the Crown and your counsel, the issue is whether the minimum term should be 17 years or higher.

[20]   One of the aggravating features of this murder that activates s 104 is that the murder was committed to avoid the detection of an offence. Your counsel does not reject that as an aggravating feature. Amber-Rose was threatening to go to the hospital

1      Sentencing Act 2002, s 102.

2      Section 104.

3      R v Williams [2005] 2 NZLR 506 (CA).

and the Police with allegations of an indecent assault. In the messaging exchange which led to her being killed, she said she would also tell the hospital and the Police of how you supplied minors with alcohol and touched them up without consent. I accept the submission of the Crown that the murder was carried out to silence Amber- Rose from making complaints to both your employer and the Police of inappropriate behaviour. I accept the submission that, had she gone to your employer, what she had to say would likely have been career-ending for you. Had she gone to the Police, it would have triggered an investigation which could well have revealed criminal offending and led to prosecution. Even if it could be said that your conduct with young people would not inevitably have led to a prosecution, you killed her irrationally and illogically to prevent there being an investigation into your conduct. That constituted, at the very least, an exceptional circumstance, falling within s 104(1)(i) that could require a minimum period of imprisonment of at least 17 years.

[21]   Another factor provided for in s 104, which can require a Court to impose a minimum term of 17 years, is that the murder involved unlawful entry into the victim’s home. Amber-Rose was killed while in bed, in her home. She was in a place where she should have been able to feel most safe.

[22]   The Crown also suggests this was a murder involving a high level of brutality or callousness. Mr Eaton argues it cannot be so classified, given that all murders are brutal or callous to some degree. Mr Eaton referred to the way, at trial, I described the killing as “clinical”. He thus submits it was not one that would have caused your victim prolonged suffering.

[23]   The Crown suggests that it was a murder that involved a high degree of brutality because there were six injuries to the victim’s neck, including the deep wounds which incorporated her trachea, carotid artery and jugular vein causing death by blood loss. The Crown also refers to the additional stab wounds to the back of her neck and evidence, from what you told the associate, that she had seemingly struggled or endeavoured to scream but was subdued with her own pillows.

[24]   As the Court of Appeal and other Judges in the High Court have pointed out, many murders will involve elements of brutality, cruelty, depravity or callousness. To

bring one of those elements within s 104(1)(e), so as to require the Court to impose a minimum period of imprisonment of 17 years, one of those elements must be present to a high level.4

[25]   In R v Frost, the Court of Appeal was clear that an offender’s conduct after the murder is a matter that can be taken into account in assessing the degree of callousness involved.5

[26]   The Crown refers to the way you burnt clothes and other items associated with the murder, including the victim’s driver’s licence, toasted marshmallows over the flames and, two days after the murder, visited Amber-Rose’s mother with flowers and a card, and feigned sorrow for her loss, as being consistent with a high degree of callousness.

[27]   Mr Eaton points out that the meeting with Amber-Rose’s mother was instigated by the Police. I also accept his submission that, the different ways you attempted to dispose of evidence that would connect you to the killing were not matters that can be used to assess the actual killing as being callous to a high level.

[28]   What made it callous to a high level was, in part, the efficient and clinical way in which Amber-Rose was killed but also the non-fatal stab wounds, together with the way you left her on her bed, inevitably in a pool of blood, to be discovered in that way by her mother the following morning. It is hard to imagine a worse scene for a mother to be confronted with. Tragically, for Amber-Rose’s family, the memory of what she saw and the loss of her daughter was not in fact something she could live with. She ended up taking her own life.

[29]   In R v Frost, the Court of Appeal found that the sentencing Judge was correct to find the murder involved a high degree of callousness despite the “efficient” nature of the murder. In that case, the offender had approached a woman with whom he had been socialising during the day. He approached her from behind in the kitchen and slit her throat from ear to ear with a hunting knife. He then stabbed her through the

4      R v Gottermeyer [2014] NZCA 205.

5      R v Frost [2008] NZCA 406.

back, his knife going through her heart. The woman was found a few days later in a pool of blood on her kitchen floor. Having murdered her, the offender took food from her fridge and drove off in her car.

[30]   The Judge there referred to the way the offender had fully and frankly acknowledged to another person, days afterwards, what he had done. The Court of Appeal said there had been no error in the Judge categorising what happened as being “cold bloodedness of the highest rank … committed by someone who can aptly be described as having a “numbed sole””.

[31]   After you killed Amber-Rose, you had your 16 year old associate help clean your car in an attempt to get rid of forensic evidence linking you to the crime. Later, you told and demonstrated to him what you had done. I know that you accept that he had reason to be fearful of you because of the way you had previously used force against him. You made sure he remained fearful of you through the way you told him and demonstrated to him how you killed Amber-Rose and by your threat to kill him and members of his family if he told anyone of what he knew.

[32]   I consider, with the way you killed Amber-Rose, the way you simply left her to be found by others in her family and then told the associate of what you had done, and demonstrated what you had done to him, you exhibited not just a complete indifference to the sensitivities of others but an irrational arrogance which requires me to find that, with this murder, there was callousness to a high degree.

[33]   The Crown also suggests s 104 has to be applied because the murder involved calculated or lengthy planning. I accept Mr Eaton’s submission that the planning or premeditation of the sort that occurred here was not sufficient to bring that into play to the degree which would require a minimum period of imprisonment of 17 years.

[34]   In R v Singh, that factor had been established, where Mr Singh had decided to kill his wife on 10 November 2017, but found he was unable to do so on that day and waited for much of the following day to have the opportunity before returning in his own vehicle with gloves, a large knife and a second unidentified weapon.6 He

6      Singh v R [2019] NZCA 436.

eventually killed his wife around 1.00 am on the morning of 12 November 2017 when he knew she was on her own.

[35]   Here, you decided to kill Amber-Rose, probably only after she had made it clear in her messaging that she was serious about going to the hospital and the Police with her complaints. There was nothing particularly sophisticated or subtle about the way in which you killed her. No elaborate subterfuge was involved. It is not clear that you had planned carefully in advance how you would get rid of incriminating evidence after the killing. The associate said it was his suggestion that you went to Blackhead Quarry where you attempted to dispose of her cell phone.

[36]   Although the murder was not the result of planning and premeditation so as to bring into play s 104, there was premeditation sufficient to require me to take that into account as an aggravating feature. There was premeditation in the way you arranged for the young associate to drive you to the scene of the murder, with you being in the car dressed in black with gloves on and having with you a knife you had brought from your home, also in the way you told the associate you had a “master plan”.

[37]   You are also to be sentenced on the four charges of threatening to kill on which you were found guilty. For you to be found guilty on those charges, the jury had to be satisfied beyond reasonable doubt that you made such threats and that you intended them to be taken seriously. They were taken seriously by the young associate. He endeavoured to act as normal as he could while with you in Balclutha after going there in the early hours of the Saturday morning. However, his distress at the situation he had been in and his fear were apparent from the way he contacted family members once he was away from you to tell them how they must keep themselves safe.

[38]   On your instructions, Mr Eaton accepts there are no mitigating features either as to you or the offending which he can advance.

[39]   Accepting, as he does, that s 104 requires the imposition of a minimum period of imprisonment of 17 years, Mr Eaton submits that, having regard to the principle that a Court should apply the least restrictive sentence, the minimum period of imprisonment should be 17 years. The Crown recognises the Court must take into

account the general desirability of consistency with sentences imposed on similar offending of murder committed in similar circumstances. The Crown referred me to sentences imposed in a number of cases.7 It suggested the minimum period of imprisonment should be at the higher end of 19 to 21 years. I have also considered the sentences and circumstances imposed in other cases. Those cases will be cited with my sentencing remarks.8

[40]   I have decided that the minimum period of imprisonment that needs to be imposed is 19 years.

[41]Dr Skantha, please stand.

[42]   For the murder of Amber-Rose Rush, I sentence you to life imprisonment. I fix a minimum term of imprisonment of 19 years. This means you will not be eligible for parole until you have served 19 years.

[43]   On each of the charges of threatening to kill, you are sentenced to imprisonment for one year. Those sentences are concurrent with each other and with the sentence on the charge of murder.

[44]Please stand down.

Solicitors:

R P Bates, Crown Solicitor, RPB Law, Dunedin J H M Eaton QC, Barrister, Christchurch

J Oliver-Hood, Barrister Dunedin.

7      Singh v R, above n 6; Thurgood v R [2012] NZCA 23; Dawood v R [2013] NZCA 381; Christison v R [2017] NZCA 168; R v Frost, above n 5; R v Eddy [2014] NZHC 1543.

8      Pandey-Johnson v R [2012] NZCA 595, R v Weatherston HC Christchurch, CRI-2008-012-137, 15 September 2009; Preston v R [2016] NZCA 568, [2017] 2 NZLR 358, Roigard v R [2019] NZCA 8.