R v Panja [2018] NZDC 12491 (20 June 2018)

Last Updated: 1 June 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT MANUKAU

CRI-2018-092-003724

[2018] NZDC 12491

THE QUEEN

v

[SHARAD PANJA]

Hearing:	20 June 2018
Appearances:	H Watts for the Crown G Duff for the Defendant
Judgment:	20 June 2018

NOTES OF JUDGE J BERGSENG ON SENTENCING

[1] [Sharad Panja], you appear today for sentence on a charge of wounding with intent to cause grievous bodily harm, pursuant to s 188(1) Crimes Act 1961. The maximum penalty available on that charge is 14 years’ imprisonment.

[2] The offending took place on 3 April 2018. The summary of facts is not in dispute. You and your wife had been living together. You had been married for 30 years. On the evening of 2 April 2018 there was an argument. The summary tells me that the argument was about your drinking. The police were called, it appears, by a neighbour. When the police arrived both you and your wife were asleep and it appeared to them that whatever the issues that had been present had been resolved.

[3] By 1.20 am your wife was in bed. You came into the bedroom having armed yourself with a large knife. You were holding it above your head. Your wife moved from the bed as you struck down with the knife. There was a large wound to her right

R v [SHARAD PANJA] [2018] NZDC 12491 [20 June 2018]

forearm. She tried to escape but you stabbed her a second time. There was a large wound to her left forearm. On both occasions she had raised her arms to protect herself. She was able to seek help from [details deleted] who lives [nearby]. The police were called. Moments before the police arrived you inflicted an injury to your own throat, cutting it.

[4] The injuries to your wife were a laceration to her right forearm, the nerves were severed and a laceration to her left forearm. The blow was with such force that it broke a bone. Surgeries were required on both arms.

[5] You have one previous conviction. That goes back to [year deleted] and that is a charge of male assaults female. Your wife was the victim on that occasion.

[6] There is a victim impact statement and your wife and a number of family members are present in Court today. The first victim statement was taken the day after this incident. In that statement your wife said not much more other than that she was completely shocked by what had happened. The victim impact statement which I have today notes that your wife has forgiven you for what you have done to her. She notes that you have been together for [more than 30] years and that throughout this time you have been a good husband. She cannot understand what happened that night for you to do this. It is not something that you have ever come close to doing in the past.

[7] She notes that you have had poor health over a number of years with [multiple surgeries] and other ongoing medical problems. You have worked when you can but you are now unable to do so because of your health. That has caused financial stress within the family. She would like you to be able to stay with your [child] when you are released from prison so that the two of you can talk about what has happened. She is of the view that prison is not the place for you. She seeks a protection order.

[8] Additionally there is a restorative justice conference report. The meeting took place on 15 June at Mt Eden Prison. You, your [children], your wife and your son-in- law were all present at the meeting. You immediately apologised to your wife. You could not understand why you had done this. Your wife has been incredibly gracious.

She has accepted your apology and she has forgiven you. She describes you as being in her heart for ever.

[9] You have yourself taken steps to address issues which have been identified. You have attended at Alcoholics Anonymous. You have attended a number of sessions of the CADS programme while in custody. You have undertaken a relationship course, an anger management programme and you have enrolled yourself in literacy and numeracy courses.

[10] It is clear when I read the report from this conference that you are incredibly sorry for what had happened. It is clear that you are having difficulty explaining it. Your family cannot understand how they have all ended up sitting in Court today having to deal with this situation. This was something that never in their wildest dreams did they think that they would be having to deal with.

[11] To your credit you decided you will never drink alcohol again.

[12] In addition to restorative justice you were interviewed by probation for a Provision of Advice report. Unfortunately the report-writer did not have the summary of facts with her when she met you. There were also some communication issues. She noted that you have a lack of recollection as to what had happened. You acknowledged that you had been drinking whisky that night and that alcohol has been a problem for you.

[13] In terms of your background you have been in New Zealand since [the 1980s], coming from [country deleted]. You are having difficulty comprehending what has happened to you and at the time of the report there has not been any contact from your family. You advised the report-writer that you had been in receipt of an ACC benefit over a number of years, that resulted in a degree of boredom on your part and that you would regularly consume alcohol.

[14] Because this offending has unusual characteristics about it, in that it is so out of character a report was called for from a psychiatrist. Dr Josephs has met with you and has provided a report to the Court. The purpose of that report was to see what Dr

Josephs could suggest in terms of assisting the Court when it came to sentencing and if there were any mental health issues that needed to be addressed.

[15] What Dr Josephs has reported is that there are no mental illnesses. You do not fulfil the criteria for a mental disorder. There is nothing conclusively suggestive of a diagnosis of a substance abuse disorder. He notes that there is collateral evidence to suggest that you had consumed a slightly larger than normal amount of alcohol that night, and in the days leading up to this offending, but specifically on the day of the offending and that you were under the influence of alcohol. You are at a low risk of offending violently again in the future. However, if you did offend in the future it is likely that the level of violence would be high. That is the impact of Dr Josephs’ report.

[16] The Crown have filed written submissions in terms of what the starting point should be. They rely on the case of R v Taueki1 as setting the starting point. They submit that the starting point falls between the upper end of what is called band two and the bottom end of band three. They highlight the aggravating features as being the extreme level of violence, the use of a weapon, the serious injury that your wife sustained, the breach of trust in that she was a vulnerable victim, and that to a limited degree this was premeditated offending.

[17] Two cases have been referred to in addition to Taueki, Seto v R and Bartlett v R so as to give a nuanced approach as to where they say the starting point should be. The submission from the Crown as has been again made in Court by Ms Watts today is that the starting point should be nine years’ imprisonment. It is acknowledged that in your circumstances there should be a reduction for your previous good character, that remorse is shown and that you are entitled to the full credit for a plea of guilty.

[18] On your behalf Mr Duff has filed written submissions and also addressed me in Court. He acknowledges the aggravating features as being the use of a weapon, the fact that serious injuries were sustained by your wife and that she was vulnerable. However, it is submitted that this is not a case of extreme violence. It was neither

1 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372

prolonged and there were two strikes only. He submits there is an element of provocation, due to the fact that there had been the earlier argument. He submits that there is nothing to suggest that this was premeditated offending beyond the fact that you used a weapon. He highlights that this is offending which is very much out of character for you and that you last appeared before the Court in [the 1990s]. While acknowledging that it is not a mitigating factor he highlights that you had been drinking, and that you yourself attempted to take your own life after attacking your wife.

[19] Based on these factors and distinguishing the cases that the Crown have referred to, Mr Duff submits a somewhat lower starting point, somewhere in the region of six to seven years.

[20] The mitigating factors that Mr Duff points to are your previous good character, your efforts at rehabilitation, your age and your health issues; you are now [over 60] years old and in poor health. You have been on ACC because of [injury deleted] and that effectively a term of imprisonment will be more severe for you because of those particular factors. He submits that combination of features should allow a 40 percent reduction in the starting point and then a further 33 percent for your plea of guilty and for your genuine remorse.

[21] In sentencing you today I am going to adopt a three-stage process. First I will set a starting point. That will be based on the features of the offending itself, and I will take guidance from previous cases. Next I will adjust the starting point based on any aggravating or mitigating features and your personal circumstances. Thirdly I will consider any discount for guilty plea and remorse. Throughout the process I will have regard to the purposes and principles of sentencing set out in s 7 and 8 Sentencing Act 2002.

[22] These include the need to impose a sentence that denounces your conduct, promotes accountability, deters others from engaging in similar behaviour. At the same time I must bear in mind the need for rehabilitation and the principle that I should impose the least restrictive outcome that is appropriate in your circumstances. I also need to ensure that there is consistency with similar cases in general.

[23] The Court of Appeal in R v Taueki has given guidance as to how the Courts should approach sentencing in cases of this type. They have set out a number of bands depending on the seriousness of the offending. Band one is for three to six years, that is where there are limited aggravating features, no more than one. Band two is a range of five to 10 years where there are two or three aggravating features, and band three the range of nine to 14 years where there are three or more aggravating features or the combination of factors is particularly grave.

[24] What I need to do is to assess the circumstances of your offending to establish within which band in Taueki your offending falls. In your case the aggravating features that I identify are first that this was premeditated offending. It required you to obtain a knife before you committed the offending. However, in terms of premeditation it is not a high degree. The second aggravating feature is that a weapon was used. It has been described in the summary of facts as a large knife. Third, this is a case of extreme violence. I disagree with the characterisation of your counsel that it does not involve extreme violence.

[25] The facts clearly describe that you entered the room holding the knife above your head. You struck down at your wife. It was just lucky that she woke at the time and was able to move away from that strike. The wounds that she sustained were defensive wounds. The knife was clearly being wielded with some significant force and that is shown in the injuries. Associated with the extreme violence is that this offending does involve serious injury. The injuries to your wife’s forearms required surgery. A bone was broken by the force of the knife.

[26] This was offending which involved a breach of trust. You had been in a long term marriage with your wife. She was to a degree vulnerable at the time being in bed and asleep.

[27] When I consider all of these factors I find that this offending fits within band two of Taueki, but more towards the mid to upper range. The starting point that I adopt, given all of these circumstances, is one of eight years and six months’ imprisonment.

[28] There are no personal aggravating features that I need to consider.

[29] There are, however, personal mitigating factors that I can take into account. While you do have a prior conviction involving your wife, male assaults female, that is [more than 20] years ago. The Crown acknowledge that you can call upon your previous good character given that it was [more than 20] years ago, and also given that this is offending which is acknowledged as being very much out of character.

[30] Dr Josephs in the medical report spoke to members of your family and some of the comments are relevant. One of your [children] noted that this was completely out of character for you. She told Dr Josephs that your family members and neighbours were shocked at what had happened. She described you as being a humble, down to earth and an always follow the rules and law type of person. She described you as good and caring towards everyone in the family, including your wife. She denied that there had been a history of conflicts between yourself and your wife. She said that you enjoyed doing things together. That is all indicative of this being very much out of character.

[31] For that reason I reduce the starting point by 10 percent.

[32] I can also take into account the fact that you have attended at restorative justice and you have participated in the conference. I can only see good coming out of that conference. It has given you the opportunity, and more importantly your family and your wife to meet with you, and in a controlled setting to discuss what had happened. I can also take into account your age, although at [over 60] that is not a particularly old age which would not of itself mean that there should be any reduction. However, it is clear that over a number of years you have suffered from health issues, in particular your [injury] which causes you significant and ongoing pain. For those factors I reduce the sentence also by another 10 percent.

[33] From a starting point of eight years and six months I reduce the sentence to one of six years and eight months.

[34] I accept that there is genuine remorse on your behalf. That has been expressed through restorative justice and also the comments that you have made to Dr Josephs. I therefore reduce the sentence by a further six months.

[35] You are entitled to the full credit for your plea of guilty. That came at the time of your second appearance. It could not have come any earlier so again that is a recognition of acceptance and remorse on your behalf. I reduce the sentence by a further 19 months.

[36] The end sentence imposed today is one of four years and seven months’ imprisonment.

Addendum

[37] In the course of delivering my decision Mr Duff raised the issue that his wife was not asleep when the defendant entered the bedroom. That would not have made any difference to my sentence. It was simply one of the factors that I took into account. The reality is that the defendant entered the room armed with a knife and he had every intention to use it against his wife.

Judge J Bergseng

District Court Judge

Date of authentication: 31/08/2018

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.