R v Desai [2012] NZHC 1062 (17 May 2012)

Last Updated: 24 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-002402 [2012] NZHC 1062

THE QUEEN

v

UDAY KRISHNANKANT DESAI

Hearing: 17 May 2012

Counsel: A Perkins and J Donkin for the Crown

U K Desai in person

P Dacre as Amicus Curiae

Judgment: 17 May 2012

_{SENTENCING NOTES OF WOOLFORD J}

Solicitors/Counsel:

Meredith Connell, Auckland for the Crown

Mr P Dacre, Auckland – Amicus Curiae for the Prisoner

Copy to:

Mr U Desai, 80571259 PRN, Foxtrot 1, Cell 15. Mt Eden Corrections Facility, Private Bag 92625, Symonds Street, Auckland 1150.

R V DESAI HC AK CRI-2011-092-002402 [17 May 2012]

Introduction

[1] Uday Krishnakant Desai you appear for sentence having been found guilty at trial of one count of murder, one count of threatening to kill and one count of assault with a weapon. Those charges carry maximum penalties of life, seven years and five years imprisonment respectively.

Facts

[2] Mr Desai, the victim in this matter was your wife of 27 years, Titiksha Uday

Desai, with whom you have a 20 year old daughter.

[3] In about 2007 you started travelling to Australia regularly for work. You decided in 2008 that it would be better to relocate there. Your wife, however, did not want to move. Eventually, you and your daughter did move to Australia and your wife remained behind in the home you jointly owned with her. You became estranged and there were ongoing issues between you regarding the division of matrimonial property.

[4] On 13 February 2011, you returned to New Zealand from Australia on a one way ticket without luggage, having given up your accommodation in Australia and sold your belongings. You hired a car at Auckland Airport and travelled directly to a supermarket where you purchased a screwdriver set to assist you to break into the marital home and a box-cutter knife you would later use to kill your wife.

[5] After ruminating overnight and for much of the next day, during which time you remained in the rental car, at about 9:45pm on 14 February 2011, you entered on the property occupied by your wife and spoke to a tenant in a unit at the rear of the property. You then went to the marital home and smashed a glass pane in the front door with an empty beer bottle. You entered the house and went directly to your wife’s room and confronted her. You asked her to confess to unspecified wrongs. You then dragged her through the house to the back porch.

[6] When you got outside, your wife started screaming for help. You reacted by slashing her about the throat and upper body with the box-cutter knife you were carrying. The blade broke at the outset of the assault but you continued to assault her using the remnant of the blade.

[7] The tenant, hearing the commotion, armed himself with a golf club and confronted you. You attempted to continue your attack, even as your wife lay fatally injured on the ground. Other neighbours came to the aid of your wife and you were eventually restrained.

[8] Despite the medical treatment provided by your neighbours, your wife died at the scene.

[9] The other two counts relate to the tenant and a neighbour who came to the aid of your wife. The jury found that you momentarily turned your attention to them when they tried to interfere, threatening and assaulting them.

Victim Impact Statements

[10] I have received Victim Impact Statements from your wife’s family and friends. All of them describe the immense sadness and trauma which her death has caused them. They describe a happy woman who thrived in her job as a librarian, a woman who was hardworking and compassionate.

[11] Your wife’s brother, Vivian, says that the loss of his sister has shaken their close-knit family tremendously. He describes how his 81 year old mother still struggles with the loss of her only daughter.

Personal circumstances

[12] Mr Desai, your pre-sentence report shows that you are 48 years old and were born in Mumbai, India. You are the youngest of three sons and describe an uneventful upbringing. You met your wife when you were about 17 years of age and first came to this country in 1997 together with your daughter.

[13] As I have already noted, your marriage broke down in 2007 when you moved to Australia with your daughter. There were historic issues between you and your wife about the reasons for the separation and the treatment of your daughter as well as ongoing issues regarding the division of the matrimonial property.

[14] You have no previous convictions although you admitted during a psychiatric assessment that there had been previous incidents of domestic violence between you and your wife. This is corroborated in one of the Victim Impact Statements.

[15] I have also had the benefit of a psychiatric report prepared by Dr Ian Goodwin. Dr Goodwin interviewed you on two separate occasions and reports that your thought form at times appeared to be abnormal with you moving from one area to another and becoming quite distracted.

[16] Dr Goodwin assessed you as having a number of overvalued ideas about your wife and daughter which were related to your culture and your personality style. He was of the opinion however that there was no evidence of a psychotic illness. He was concerned that you be monitored regularly whilst in custody so that any mental illness which may develop can be dealt with appropriately.

Purposes and principles of sentencing

[17] In deciding what sentence should be imposed on you I have to take into account established sentencing principles. You must be held accountable for the harm done not only to your victim, but the harm done to those who provided the Victim Impact Statements to which I referred, and others who have suffered as a consequence of your offending. In sentencing you, I must provide for these people’s interests. There is a need to denounce your offending and hold you accountable to the community. There must be an element of deterrence against both future offending by you, and by others who might consider similar offending as a course to resolving their own disputes.

[18] I must also take into account the gravity of the offending, and the degree of your culpability. The sentence I impose on you must be consistent in kind and in

length with those imposed on others who have offended similarly. I must take into account any information provided to the Court concerning the effect of the offending on the victim, and the victim’s family. However it is also necessary to impose the least restrictive outcome possible in the circumstances. Finally, I must consider your re-integration into the community.

Submissions

Crown

[19] The Crown submits that s 104 of the Sentencing Act 2002 is engaged on account of three factors – the lengthy planning involved,[1] the unlawful entry into your wife’s home,[2] and the high level of brutality and callousness involved in the killing.[3]

[20] Consequently, the Crown suggests that the starting point of life imprisonment with a minimum period of at least 17 years is required. It submits that a modest uplift to the starting point may be necessary to reflect the charges of assault with a weapon and threatening to kill.

Amicus

[21] Mr Dacre has made submissions, not on your behalf, but rather emphasising the legal tests which I must apply. He has compared and contrasted the language in ss 9 and 104 of the Sentencing Act, emphasising that the Court must focus on the wording of the specific section at issue when considering the sentence to be imposed. Mr Dacre concurs with the Crown view that it is not open to me to make any allowance for provocation on the part of your wife in these circumstances. He

_{also refers me to a case called R v Rajamani}[4] _{which he considers analogous.}

[22] Mr Desai, murder is the most serious offence in our criminal calendar and consequently a special sentencing regime applies to it. That regime requires me to impose a sentence of life imprisonment upon you unless it would be manifestly unjust to do so.[5] When life imprisonment is imposed, the Court must impose a minimum period to be served. This period should properly reflect the circumstances of the offending and the level of culpability of the offender.[6] In the worst cases of murder there is a presumption that a minimum period of 17 years imprisonment will be imposed.[7]

[23] In sentencing you, I must first compare your offending to the standard range of murders and assess your culpability, bearing in mind the potential application of s 104. I must then decide what the appropriate minimum term is, taking into account all the circumstances of the offending and the offender. Where s 104 has been engaged, I must then consider if the imposition of a 17 year minimum period would be manifestly unjust.

Analysis

[24] In assessing your culpability with regard to the standard range of murders, I consider each of the s 104 factors advanced by the Crown in turn. I note that if any one of the three factors cited by the Crown is present, s 104 requires me to impose upon you a minimum period of imprisonment of at least 17 years unless to do so would be manifestly unjust. In effect, the sentence is dictated by Parliament. I have

_{little judicial discretion.}

[25] In my opinion s 104 is engaged in your case on account of one of the three factors used by the Crown – the calculated or lengthy planning involved in your offending.[8]

[26] It became apparent at trial that you had for some time contemplated killing your wife. You admitted to police that you had previously returned to New Zealand, in November 2010, for that purpose but had changed your mind at the last minute.

[27] Before you returned in February 2011, you gave up your job and your accommodation and sold your belongings. You put money into your daughter’s bank account to ensure she had enough capital to support herself for some time. You bought a one way ticket and travelled without luggage. In my mind, you obviously prepared yourself for what was to follow by way of your apprehension and imprisonment.

[28] In February 2011, when you returned, you went, almost immediately, to the supermarket and purchased the box-cutter knife you would later use to kill your wife. You claimed at trial that you were merely trying to build up your set of tools, but I absolutely reject that explanation.

[29] Your comments, in the aftermath of the killing, to those who had come to your wife’s aid is also revealing of your planning and intentions. You told one neighbour that you had come back to do what you were supposed to do and that your daughter was free. You told another neighbour “I’ve done my job. She will die”. You also referred later to putting your wife down.

Unlawful entry into dwellinghouse

[30] As to the second factor cited by the Crown, I am not satisfied that there was necessarily unlawful entry to a dwellinghouse in this instance. The requirement in

_{s 104(1)(c) that the entry or presence in question be unlawful is a real one. Owing to}

the joint ownership, with your wife, of the marital home and your arguable right of entry, I cannot be satisfied that your entry was illegal.

[31] The situation would, of course, have been different if there was a protection order in place. That, however, was not the case.

[32] That said, I do regard the fact that this offending happened in your wife’s home as a generally aggravating feature. You had become, in the last three years, a stranger to this home and it was a place where your wife was entitled to feel safe. As the Court of Appeal noted in R v McLean:[9]

In sentencing [intruders within the home], the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence. Conduct of this kind affects the sense of security of the whole community.

High level brutality, cruelty, depravity, or callousness

[33] As to the third factor cited by the Crown, there is no murder that is not in its own way brutal, cruel, depraved and callous. The offence, by definition, is all of those things. As has been observed before, assessment of whether those features are present to a high level is an invidious exercise.[10]

[34] In the end, I am not satisfied that that is the case here. I do not wish to in any way minimise your offending, but I am satisfied that, when comparing your offending to the cases to which the Crown and Mr Dacre have referred, s 104(1)(e) is not engaged. The assault was not prolonged. There was only one weapon used, which was a common household implement. You did not sever your wife’s windpipe or any artery in your wife’s neck. It was nonetheless still a heinous assault.

Manifest injustice

[35] Having found s 104 to be engaged, I must then go on to consider whether there is any reason to depart from the presumptive 17 year starting point or whether a

17 year minimum term would otherwise be manifestly unjust. The correct approach to assessing manifest injustice is set out in R v Williams.[11]

[36] I am satisfied in your case that there is no manifest injustice if a 17 year minimum term was to be imposed.

[37] Although you are a first offender, your previous good character cannot be called to your aid in a case of such serious offending. There was no guilty plea or any real remorse. Although you say you loved your wife, throughout the trial you characterised her as manipulative, deceitful and provocative. You believed that she turned the community against you and that she treated your daughter exceptionally badly. None of this, however, is sufficient, even if it were true, to amount to provocation which might affect the minimum period which I am otherwise required to impose.

[38] As Dr Goodwin noted in his psychiatric report, to which I have already referred today, you have a tendency to overvalue ideas and that tendency is evident in the extent to which you feel wronged by your wife.

[39] However, in all the circumstances I am not satisfied that any increase in the

17 year minimum term is required. I agree with Mr Dacre that the other two offences of which you were found guilty can be seen as part and parcel of the murder of your wife.

Conclusion

[40] Accordingly, on the charge of murder, you are sentenced to life imprisonment with a minimum period of imprisonment of 17 years.

[41] On the charges of threatening to kill and assault with a weapon, you are sentenced to concurrent terms of 2 years and 18 months imprisonment respectively, the end result being that you will serve a minimum period of imprisonment of

17 years. Stand down.

.....................................

Woolford J

---

[1] _{Sentencing Act 2002, s 104(1)(b).}
[2] _{Sentencing Act 2002, s 104(1)(c).}
[3] _{Sentencing Act 2002, s 104(1)(e).}
[4] R v Rajamani HC Auckland CRI-2005-004-1002, 28 March 2006.
[5] _{Sentencing Act 2002, s 102.}
[6] _{R v Howse [2003] 3 NZLR 676 (CA).}
[7] Sentencing Act 2002, s 104.

[8] Sentencing Act 2002, s 104(1)(b).
[9] _{R v McLean [1999] 2 NZLR 263 (CA) at 266.}

[10] R v McKee HC Christchurch CRI-2007-009-17060, 7 August 2008 at [11].

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