Malik v R [2015] NZCA 597 (9 December 2015)

Last Updated: 16 December 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA130/2015 [2015] NZCA 597
BETWEEN	ISHRAT MALIK Appellant
AND	THE QUEEN Respondent

Hearing:	14 October 2015
Court:	Miller, Simon France and Asher JJ
Counsel:	P L Borich and A Rasheed for Appellant K S Grau for Respondent
Judgment:	9 December 2015 at 2.15 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1] Ishrat Malik murdered his wife Farhat and 18 year old daughter, Sidra. He pleaded guilty and was sentenced in the High Court to life imprisonment with a minimum period of imprisonment of 18 and a half years.^[1] He now appeals the minimum period.

The offending

[2] Mr Malik and Farhat married in 1988 in Pakistan, where he was a construction foreman and she a scientific officer. The marriage was arranged. They had three children. The family emigrated to New Zealand in 2002 and they settled in Auckland, where Mr Malik worked as a bus driver.
[3] Mr Malik maintains that the marriage was a loving relationship, but in the circumstances that seems implausible and the background information available to us, including witness statements,^[2] indicates that it was unhappy from the beginning. Mr Malik appears to have been a rigid and domineering husband and father, disposed to find unacceptable anything less than complete deference and strict obedience to his wishes as head of the house, and it appears that there was a history of domestic violence.
[4] In 2013 Farhat left the family home in Ranui, taking Sidra. The cause appears to have been an assault on Sidra. Farhat took Sidra to a Women’s Refuge and obtained a protection order against Mr Malik.
[5] Mr Malik did not accept his wife’s decision to leave. He says he was offended because he had been a loving husband and the marriage was a happy one. He manipulated the couple’s children to persuade her to return home, and sought Farhat’s forgiveness. Eventually Sidra did return home. Farhat did not, but she spent increasing amounts of time there, sometimes staying for several days at a time.
[6] Farhat eventually decided that she would not reconcile with Mr Malik. She made arrangements to move to another house. The move was arranged for 20 May 2014. She and Sidra spent the night of 18 May at the family home.
[7] Knowing of his wife’s plans, Mr Malik spent the night brooding. He decided that he would kill her, and Sidra too. At about 5.30 am he phoned his employer to say that he would not be at work for a few days. He took a large kitchen knife and went to Farhat’s room, where he stabbed her 31 times. He then went to Sidra’s room. She realised what was happening and tried to flee. He overcame her and stabbed her 25 times.
[8] At 10 am Mr Malik dialled 111 but hung up without saying anything. When the operator called back he said that there had been a murder and confirmed his address, telling the police to come. The police arrived quickly. They found both women dead.
[9] When the police arrived Mr Malik called his older daughter, Rida, from whom he seems to have been estranged. He told her that she and her husband would not win, because he had killed Farhat and Sidra.

The court process

[10] Mr Malik was arrested on 19 May 2014 but did not enter his guilty pleas until 23 December 2014. In the intervening period he underwent an extended process of evaluation under the Criminal Procedure (Mentally Impaired Persons) Act 2003. No fewer than eight expert reports were obtained from four experts. The experts gave evidence at a hearing held on 15 December 2014, following which Moore J found Mr Malik fit to stand trial.^[3]
[11] Because one of the issues on appeal is whether Mr Malik entered his pleas at the first reasonable opportunity, we outline briefly when the expert reports were prepared and what they said. Following arrest Mr Malik was seen by a consultant psychiatrist at Mt Eden prison, where he was held on remand. There were thought to be indications of malingering but because of communication difficulties a mental disorder could not be excluded. That appears to have resulted in two further assessments in June 2014. Both raised the possibility of malingering. The first formal report for the Court was dated 5 August 2014. It was written by Dr Sakdalan. The report concluded that there was good evidence that Mr Malik was feigning psychiatric illness and cognitive problems, but that did not exclude mental health issues. Dr Sakdalan considered that Mr Malik’s highly unusual presentation could not be explained by malingering alone. The doctor concluded that Mr Malik suffered dissociative amnesia and opined that he was unfit to stand trial.
[12] A series of reports was then prepared by Drs Goodwin, Nuth and Pillai. In a letter of 24 October 2014 Dr Nuth recorded the outcome of a meeting with Dr Sakdalan and Dr Goodwin. They agreed that Mr Malik was likely malingering but that did not necessarily preclude actual impairment. Difficulties that defence counsel was experiencing taking instructions from Mr Malik were likely to result from him being uncooperative and unwilling rather than unable to engage. The experts differed with respect to the possibility that Mr Malik also suffered from some form of mental illness. Dr Sakdalan and Dr Goodwin could not rule out psychosis and Dr Sakdalan considered that dissociative amnesia could not be ruled out entirely. Dr Nuth considered that there was minimal reliable evidence of mental impairment.
[13] In a report dated 4 December 2014 Dr Pillai diagnosed narcissistic personality disorder, which is characterised by a prominent sense of entitlement, exploitation of others and absence of empathy. Dr Pillai discounted dissociative amnesia and concluded that there were no symptoms of a significant major mental illness such as psychosis. He concluded that Mr Malik’s presentation on a wide range of health symptoms was most likely consciously feigned. It followed that Mr Malik was fit to stand trial.
[14] Dr Sakdalan subsequently agreed, in a report dated 9 December 2014, that Mr Malik suffers from a narcissistic personality disorder at the severe end of the spectrum. Personality disorders can qualify as mental disorders for legal purposes and it remained Dr Sakdalan’s opinion that Mr Malik was unfit to stand trial.
[15] In a report dated 11 December 2014, Dr Goodwin concluded that Mr Malik was not mentally disordered. He accepted that Mr Malik has a personality disorder but considered that even if one were to take a generous view of its impact there was certainly a component of conscious free will in Mr Malik’s presentation. He concluded that Mr Malik was not unfit to stand trial.
[16] The fitness hearing was held before Moore J on 15 December 2014. The psychiatrists gave evidence as a panel. The Judge summarised the evidence:^[4]

[41] At the hearing there was agreement between the experts that Mr Malik was feigning or exaggerating his symptoms and that he was not suffering from either dissociative amnesia or psychosis of any kind. There was also broad agreement that Mr Malik displayed a narcissistic personality structure, with two of the experts taking the view that this amounted to a personality disorder. Of the experts, only Dr Sakdalan was of the view that his condition would render Mr Malik unfit to stand trial. The other experts considered that the difficulties which Mr Malik would face at trial, while contributed to by his narcissistic personality, would be the result of his own wilful decisions, in other words a conscious election on his part not to participate.

[17] The Judge concluded that Mr Malik was malingering. He was satisfied on the balance of probabilities that Mr Malik’s narcissistic personality structure did not amount to a mental impairment. Within a short time Mr Malik had entered guilty pleas.

The sentencing

[18] Mr Malik was sentenced on 13 March 2015. Moore J accepted that s 104 of the Sentencing Act 2002 was engaged for two reasons, the double murder and the high degree of brutality. There were other aggravating factors, notably a degree of premeditation, the vulnerability of the victims, the impact on other family members and the breach of trust. The Judge concluded by reference to other sentences for double murders that a minimum period of 21 years was an appropriate starting point.
[19] Turning to mitigation, the Judge was prepared to grant an additional discount for Mr Malik’s mental condition. He was satisfied that a personality disorder contributed to the offending and might make the effect of a prison sentence more difficult to bear. He allowed a deduction of one year for that.
[20] However, the Judge did not accept that a discount for remorse was justified. Mr Malik asserted remorse but the Judge questioned his sincerity and observed that Mr Malik still seemed to think himself the person wronged.
[21] The Judge was not prepared to give credit for good character. He recognised that at the age of 56 Mr Malik was a first offender, but the background to the offending and its seriousness precluded a further discount.
[22] Finally, the Judge gave a discount of 18 months for Mr Malik’s guilty pleas. He rejected Mr Borich’s submission that a discount of 25 per cent was appropriate. The authorities pointed rather to a discount of between one and two years. That was so even for cases decided after Hessell v R.^[5] He noted too that between May and December 2014 Mr Malik’s behaviour in prison and in the Mason Clinic required the Court to embark on the inquiry into his fitness to stand trial, which delayed his guilty pleas.
[23] The end result was that the sentence imposed on both charges was life imprisonment with a minimum term of 18 and a half years.

The appeal

[24] Mr Borich submitted on appeal that the starting point of 21 years was outside the available range, or at the very top end. Having pleaded at the first reasonable opportunity, Mr Malik was entitled to the full Hessell (SC) discount of 25 per cent rather than the discount of 7.5 per cent actually given. A discount ought to have been given for good character too. Had these things been done, the minimum period would have been less than 17 years and the Court would have had to grapple with the question whether a 17 year minimum period would be manifestly unjust. In this case it might have been, having regard to two considerations: the difference between 17 years and the period of, say, 15 years that would result from a correct application of sentencing principles; and Mr Malik’s mental health difficulties, previous good character, and likely age on release.

Minimum periods for murder

[25] It is convenient to begin with counsel’s proposition that minimum periods for murder ought to be set using the ordinary sentencing principles and practices — such as that of giving a discount of as much as 25 per cent for an early guilty plea — that apply when setting determinate sentences. This is not the occasion to review sentencing practice for murder, which the Court has previously described as “unfinished business”.^[6] We confine ourselves to explaining why, in our opinion, counsel’s proposition is wrong.
[26] An offender who is convicted of murder must be sentenced to life imprisonment absent exceptional circumstances making that sentence manifestly unjust.^[7] Exceptions are rare; as this Court noted in R v Williams, the presumption of life for murder is strong, reflecting the sanctity accorded human life and the community’s abhorrence of the crime.^[8] Rare exceptions aside, the usual sentencing methodology in ss 7 to 10 of the Sentencing Act does not apply because the sentence is indefinite and mandatory, whatever the mitigating factors. No question arises, for example, of a discount being given for a guilty plea. The court must also fix a minimum period of imprisonment, which may not be less than 10 years.
[27] This regime is now of very long standing. The 10 year minimum period was originally fixed under the Criminal Justice Amendment Act 1962, following abolition in 1961 of the sentence of capital punishment for murder. Previously offenders whose capital sentences had been commuted to life imprisonment might seek parole after five years.^[9] A 10 year period was considered sufficient for denunciation and deterrence, and it was thought that a prisoner could survive it with prospects of rehabilitation.^[10] It corresponded approximately to the terms actually served by such offenders in practice.^[11] The Court had no power to fix a lesser sentence, but in exceptional cases the Parole Board might consider earlier release.^[12]
[28] The Sentencing Act 2002 adjusted the murder sentencing regime in important ways. As noted above, a court may impose a determinate sentence where life would be manifestly unjust.^[13] The Court may also set a longer minimum period. Under s 103 the minimum must be the period that the Court thinks necessary to satisfy the sentencing objectives of accountability, denunciation, deterrence and community protection.^[14] Of course these are not the only objectives of sentencing. They address features of an offence that aggravate its seriousness or point to a need for community protection. Mitigating factors can and do offset these features when setting a minimum period,^[15] but the fact remains that the statutory criteria for a minimum period do not include the full set of sentencing purposes and principles that apply when a determinate sentence is being fixed.
[29] Further, for certain qualifying murders the minimum period may not be less than 17 years unless that period would be manifestly unjust.^[16] The qualifying criteria do not correspond directly to those in s 103, rather, they can be characterised as features of the offence — such as multiple or vulnerable victims, calculated planning, unusual brutality, or entry to a dwelling place — that the legislature considered especially worthy of accountability and denunciation. They have the effect of restricting sentencing discretion.
[30] The judgment in Williams was delivered in 2004. This Court was called upon to consider in what circumstances mitigating factors — notably, a guilty plea — might justify a minimum period of less than 17 years under s 104. The Court recognised that the relative culpability of the s 104 criteria varies and the qualifying criterion may be of more or less significance on the facts of any given case.^[17] It accordingly concluded that cases in which a 17 year minimum was manifestly unjust need not be rare, though they must be exceptional.^[18]
[31] The Court indicated that one way of setting minimum periods under s 104 would be to adopt a two step methodology. First, the sentencing judge would consider the culpability of the instant case against the standard range of murders, deciding what additional minimum period above 10 years was needed to meet the objectives of accountability, denunciation and deterrence and the legislative policy that certain features of an offence warrant a 17 year minimum.
[32] Having decided what minimum period was justified in all the circumstances, the judge would go on to consider the second step: whether a 17 year minimum would be manifestly unjust. A lesser minimum period would be warranted where the judge decides as a matter of overall impression that the case falls outside the legislative policy that certain murders are sufficiently serious to warrant at least that minimum period.^[19] The full range of sentencing criteria in ss 7 to 9 of the Sentencing Act may inform that overall impression, but because the legislative policy in s 104 must be respected, powerful mitigating factors may be needed to displace the 17 year presumption. A guilty plea is not always entitled to significant weight, and the discount required for the plea may be less than it would have been but for s 104, which requires something more than the fact that a particular discount would have been given had the presumption not applied.^[20]
[33] As is well known, R v Hessell (CA), which was delivered in 2009, was a guideline judgment in which this Court pursued consistency of practice for guilty plea discounts for determinate sentences of imprisonment, for home detention, for community-based sentences, and for fines.^[21] It set a maximum discount of 33 per cent for a plea at the earliest reasonable opportunity.^[22] As noted above, the Court left the topic of guilty plea discounts for murder by describing it as unfinished business, stating that Williams should not be regarded as the last word on the topic.^[23] But it did adopt a Law Commission recommendation that guilty plea discounts for minimum periods for murder should be left to the discretion of the sentencing judge.^[24] And the Court accepted a submission for the Crown that to apply the standard guideline guilty plea discount in s 104 cases would be to undermine legislative policy, although it suggested that some of the discounts given under s 104 may have been too light.^[25]
[34] Hessell (CA) was overruled on appeal. The Supreme Court held that discounts for guilty pleas and remorse are in the discretion of the sentencing Judge. However, Hessell (SC) did set an upper limit of 25 per cent on a guilty plea discount for determinate sentences.^[26] The Supreme Court did not address the impact of a guilty plea on minimum periods or discuss sentences for murder.
[35] This discussion points to two reasons why the guilty plea discount of
25 per cent is not directly applicable to minimum periods fixed under s 104 of the Sentencing Act. First, counsel’s argument is not comparing like with like. The Hessell (SC) discount applies to a determinate sentence, which fixes the maximum term that the offender may serve and does so by reference to all relevant sentencing considerations, including credit for a guilty plea and remorse. In the ordinary way, he or she will be eligible for parole after serving one third of that sentence. By contrast, a minimum period increases the period that the offender must serve before becoming eligible for parole and the statutory criteria in s 103(2) are narrower. They do not include, notably, the offender’s need for rehabilitation and reintegration.^[27]
[36] It is of course true that we are here dealing with murder, to which the usual sentencing methodology does not apply. But it does not follow that the usual methodology should be applied instead to minimum periods set under s 103 or s 104. Counsel complained of injustice, suggesting that a guilty plea may never be recognised, but to say that the plea is not reflected in the headline sentence is not to justify applying the discount to the minimum period. It is to question the community’s continued use of a mandatory and indeterminate sentence for murder.
[37] Second, Hessell (CA) and Williams recognise that the legislative policy in s 104 limits the credit that may be given for mitigating factors, including guilty pleas, when calculating the minimum period and applying the manifest injustice test. The discount lies in the discretion of sentencing judges, who have been using the Williams methodology. If an appellate court were to insist that the full Hessell (SC) discount be allowed for minimum terms, respect for the legislative policy in s 104 would require that starting points for minimum terms for murder be revisited and perhaps increased. In the meantime, it is not appropriate to treat the starting point used when calculating a minimum period under s 104 as the direct analytical equivalent of the starting point used when setting a determinate sentence.

The starting point in this case

[38] Mr Borich submitted that the starting point for the minimum period of imprisonment here was too high, relative to those adopted in three other double murder cases: R v Ogle (23 years), R v Maheno (21 years), and R v Frost (19 years).^[28] He also referred to R v Lundy, also a double murder, in which the minimum period of imprisonment was set at 20 years without explicit reference to a starting point.^[29] He submitted that Ogle, Maheno and Lundy were all more serious cases than Mr Malik’s.
[39] We do not agree that the starting point was too high. It is broadly consistent with other cases. We regard Maheno as comparable to this case, while in Lundy, undoubtedly a worse case, the 20 year minimum period was fixed on a
Solicitor-General’s appeal. In Dawood v R, a similar case but with only one victim, this Court upheld a 19 year starting point.^[30] We have no doubt that s 104 was engaged on two grounds; the murders of Farhat and Sidra Malik were brutal and exceptionally callous. As Ms Grau put it, one of them would have justified a 17 year minimum. We find the starting point of 21 years unexceptional. Indeed, it could have been higher.

The discounts for mitigating factors

[40] We have rejected Mr Borich’s submission that the full Hessell (SC) discount should be available under s 104. Apart from that, counsel urged us to accept that the discounts given were too low because Mr Malik pleaded at the first reasonable opportunity and ought to have had a discount for good character.
[41] As we have explained, the decision whether to make allowances for these matters was a discretionary one. So far as the guilty plea discount is concerned, it is reasonable to engage Criminal Procedure (Mentally Impaired Persons) Act processes in a case such as this, and we accept that those processes may delay the first reasonable opportunity to take full advice and to plead. However, it was open to the Judge to conclude that Mr Malik was malingering and that by pursuing a charade of mental incompetence he delayed the fitness to plead inquiry; in short, that he ought to have pleaded sooner than he did. Conviction was also inevitable. We observe that the Judge need not have given a discount for Mr Malik’s narcissistic personality disorder.
[42] We agree with Ms Grau that the Judge’s decision to make no allowance for previous good character was unremarkable in the circumstances of the case. Mr Borich acknowledged that malingering may have offset any reduction for remorse. We think it also reflects poorly on Mr Malik’s character, as did the pattern of behaviour towards his family that culminated in the murders.
[43] We are not persuaded that Moore J was wrong to exercise his discretion by allowing a discount of 18 months from the starting point of 21 years.

Decision

[44] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Malik [2015] NZHC 466.

^[2] Prepared for a hearing held under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

^[3] R v Malik [2014] NZHC 3300 [Capacity judgment].

^[4] Capacity judgment, above n 3.

^[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 [Hessell (SC)]; and R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 [Hessell (CA)].

^[6] Hessell (CA), above n 5, at [73].

^[7] Sentencing Act 2002, s 102.

^[8] R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [57].

^[9] Criminal Justice Act 1954, s 33(2)(c).

^[10] Ernest Arthur Gowers and others Royal Commission on Capital Punishment: 1949–1953 Report (Her Majesty’s Stationery Office, September 1953) [the Gowers report] at [649]–[650] and [652]–[656].

^[11] Department of Justice Crime in New Zealand: A Survey of New Zealand Criminal Behaviour (1968) at 25; and the Gowers report, above n 10, at [646].

^[12] The Prison Parole Board was empowered to consider the case of any offender undergoing imprisonment for any term under s 33A(5) of the Criminal Justice Act 1954.

^[13] Sentencing Act, s 102.

^[14] Section 103(2), which was inserted on 7 July 2004 by s 12 of the Sentencing Amendment Act 2004. The same criteria apply to minimum periods set in connection with determinate sentences under s 86 of the Sentencing Act.

^[15] R v Williams, above n 8, at [60]–[62].

^[16] This was introduced in the Sentencing Act, s 104.

^[17] R v Williams, above n 8, at [51].

^[18] At [63].

^[19] R v Williams, above n 8, at [67].

^[20] At [72]–[73].

^[21] Hessell (CA), above n 5, at [49].

^[22] At [15].

^[23] At [73].

^[24] Hessell (CA), above n 5, at [67].

^[25] At [70].

^[26] Hessell (SC), above n 5, at [75].

^[27] Sentencing Act, s 7(1)(h).

^[28] R v Ogle HC Wellington CRI-2009-091-2763, 16 October 2009; R v Maheno [2013] NZHC 2430; and R v Frost HC Greymouth CRI-2010-018-344, 3 October 2011.

^[29] R v Lundy [2002] NZCA 197; (2002) 19 CRNZ 574 (CA).

^[30] Dawood v R [2013] NZCA 381.