R v Narayan [2012] NZHC 2823 (26 October 2012)

Last Updated: 2 November 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-110 [2012] NZHC 2823

THE QUEEN

v

_{NEHA NARAYAN}

Hearing: 26 October 2012

Counsel: M Williams for the Crown

R Mansfield for Ms Narayan

Judgment: 26 October 2012

_{SENTENCE OF WOODHOUSE J}

Solicitors / Counsel:

Mr M Williams, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr R Mansfield, Barrister, Auckland

R V NARAYAN HC AK CRI-2012-092-110 [26 October 2012]

[1] Ms Narayan, you can remain seated. I do realise it is difficult for you, but it is most necessary that I explain the sentence that I am going to impose. I need to explain it to you, of course. But I need also to explain it to those who were affected by what happened, and to the community as a whole. I do understand that these things are painful for you and have resulted in serious difficulties to you and your health in the last few weeks. But you have assistance available to you and I think if you can make the most of that you will get through it.

[2] You appear for sentence having pleaded guilty to a charge of kidnapping a new born baby. In accordance with the sentencing indication that I gave on 7

September 2012, and as I have already stated in discussions with counsel, the sentence I will impose today is 2 years intensive supervision, with special conditions attached to that in relation to treatment and associated matters, together with 200 hours community work that you will need to do, but the community work will not commence for 9 months.

[3] The sentence indication that I gave was based in particular on the following:

(a) The summary of facts prepared by the prosecution and which you accepted.

(b) There were three psychiatric or psychological reports about your mental health that I had at that time.

(c) There was the mother’s victim impact statement which I had available at that point.

(d) And there were, of course, at the sentence indication hearing the submissions from the Crown as well as those from Mr Mansfield on your behalf.

[4] You pleaded guilty soon after that sentence indication was given, and that is a fact that goes substantially to your credit.

[5] I have subsequently received a pre-sentence report and two further reports from one of the psychologists, Dr Sakdalan. That further information, as will be apparent from what I have already said, does not alter the basis on which the sentence indication was given.

The facts

[6] I will state the objective facts of what happened concisely.

[7] The abduction occurred when you walked out of a hospital with a baby born that day. You got into a car in the hospital carpark. The car was driven by your former partner. The baby was recovered without any difficulty and without any harm to the baby while you were still in the carpark in the car. The baby was away from her mother for only a few minutes.

[8] That is the essence of the act which constitutes the offence.

[9] What is critical in this case in relation to the sentence is the reason why you did this, or what led you to this. I will describe the relevant background again briefly. It is unnecessary to go into the detail.

[10] You had a miscarriage around 6 months before the abduction. As a result of problems in your relationship with the father and because of some of your psychological difficulties, which are fully described in the reports, you maintained the pretence that you were still pregnant. This included buying clothing and various other things for a baby. When the father asked about the birth that he thought was due you got into a state of panic. You got the father to take you to hospital. You phoned him later and told him you had given birth. This was when you were walking out of the hospital with the baby.

Victim impact statement

[11] Mr Williams has read the victim impact statement. As we have heard, the mother describes the anguish she felt when she realised her baby had been taken.

And everybody would understand that. Although her baby was back with her very soon after there was entirely understandable anxiety for some time after that about the safety of her baby. And it is fortunate, as she said, that she has had the support of her extended family to help her get through this. I am sure you understand that – and I accept that you do, which is important.

Personal circumstances

[12] You are 25 years old. You have no previous convictions of any description. [13] As has already been indicated, you do have significant mental health

problems requiring both psychological and psychiatric treatment.

[14] These matters are fully described in the reports I have referred to and in particular in the report from Dr Sakdalan. I note that Dr Sakdalan is, amongst other things, head of the psychology department at the Auckland Regional Forensic Psychiatry Service based at Mason Clinic.

[15] You have expressed remorse for the harm you inflicted on the family of the baby. And, as I say, I accept that this is genuine.

[16] It is also correct, as Mr Mansfield has just pointed out, that there was absolutely no element of financial gain in this. There was no – in a conventional sense at all – there was no evil intent.

[17] Subject to your receiving appropriate treatment – and it may take some time, and I am sure you accept that – the risk of this ever happening again is very low.

[18] And, of course, as also indicated, you have pleaded guilty – and that is a significant matter.

The sentence

[19] Coming more directly to the sentence.

[20] It is not in question that you have committed a serious offence. However, the extent of your culpability – that is, the level of your criminal responsibility – has to be measured as well. Your complex psychological difficulties mean that a sentence of imprisonment is not required to meet the purposes and principles of sentencing. Other forms of detention also would not be appropriate because the adverse consequences for you, given your psychological state, would be harmful in ways that could not be justified in terms of the Sentencing Act.

[21] A sentence of intensive supervision of 2 years is, in relative terms, a reasonably severe sentence in itself. In terms of severity, based on restrictions, only imprisonment and home detention are more restrictive. And 2 years is the maximum period that can be imposed.

[22] In addition, and partly why this sentence is being imposed, special conditions can be added to the sentence to assist in your rehabilitation which is for the benefit of the community as a whole as well as for you.

[23] A sentence of community work of 200 hours – which is a reasonably lengthy community work sentence – will also serve, to the extent necessary in this case, to meet the objectives of sentencing.

Formal sentence

[24] Ms Narayan, I now come to impose the formal sentence and it is necessary please to stand.

[25] You are sentenced to intensive supervision for 2 years.

[26] The intensive supervision is subject to the following special conditions, and these will be provided in writing, of course:

(a) You are to receive individual psychotherapy from a clinical psychologist as required through the Manukau Community Mental Health Services with the assistance and advice of your key worker at

Manukau Community Mental Health Services, currently Ms Shahi, and on that basis as directed by your probation officer. The expectation is that Mr Fraser Cross, with Ms Shahi’s assistance, will be engaged as your clinical psychologist.

(b) Secondly, Dr Sakdalan’s psychological reports are to be provided to

Mr Cross.

(c) Thirdly, you are to receive psychiatric treatment from a psychiatrist as required through Manukau Community Mental Health Services, and again with the assistance and advice of your key worker and on that basis also as directed by your probation officer. The expectation is in this regard that Dr Joti Chandra, with Ms Shahi’s assistance, will be engaged.

(d) You are to be available at your home for visits by your key worker once a week over the next 6 months, and subsequently as may be determined by your key worker in consultation with your probation officer. You are to be available for visits by your key worker more frequently if she requires it. In this regard you are to co-operate in mental state assessments at regular intervals.

(e) You are to attend an assessment for an alcohol and drug treatment programme as directed by your probation officer and, if found suitable, to attend and complete the programme as directed by your probation officer.

(f) You are to attend an assessment for any community or departmental programme, and if found suitable attend and complete the programme, as directed by your probation officer.

(g) You are not to undertake employment or voluntary work, or visit any place, where you would have unsupervised access to babies or young children.

[27] You are further sentenced to undertake 200 hours of community work. This is to commence 9 months from today’s date. Your probation officer may apply to further extend the commencement date if that is necessary. The probation officer may direct that 40 hours of this total of 200 hours be spent in training and basic work and living skills.

_{[28] Thank you. You should now stand down.}

Woodhouse J