R v Akash [2016] NZHC 2348 (4 October 2016)

Last Updated: 4 October 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-057-000606 [2016] NZHC 2348

THE QUEEN

v

_AKASH

Hearing:	4 October 2016
Appearances:	G Kayes and P Winiata for Crown M S Gibson for Prisoner
Judgment:	4 October 2016

_{SENTENCING REMARKS OF PALMER J}

Solicitors/Counsel:

Kayes Fletcher Walker Ltd, Manukau

M S Gibson, Barrister, Auckland

R v AKASH [2016] NZHC 2348 [4 October 2016]

Introduction

[1] Mr Akash, you have pleaded guilty to, and been convicted of, the murder of

Ms Gurpreet Kaur. Today I decide your sentence.

Facts

[2] First, I need to record the essential facts of the murder. I realise this may be difficult for those affected to hear but it is an essential aspect of the sentencing process.

[3] You are known as Mr Akash, although you also sometimes go by Akash Sharma. You are 24 years old. For about 12 months you were in a relationship with Ms Gurpreet Kaur, who was 22. You told Corrections that you both kept the relationship secret from your families.

[4] Around 8 am on Thursday 7 April 2016, Gurpreet Kaur’s mother dropped her off at the Manurewa train station, as she often did, thinking she was going to study. Instead, you picked her up. You drove south. The medical evidence suggests Gurpreet was some 7 to 10 weeks pregnant. She had not yet told her parents.

[5] Around 9 am you bought methamphetamine in Meremere and continued south. You told Corrections that you used some shortly before the murder. Sometime after that, you told Corrections, Gurpreet Kaur told you she wanted to break off the relationship with you and she said the baby she was carrying was not yours.

[6] You reacted violently. Using a knife you kept in the car, you cut and stabbed Gurpreet 29 times, in her scalp, face, neck, chest and abdomen. A cut to her neck injured her jugular. There were also cuts on her right hand and left forearm, consistent with her defending herself. Of the nine stab wounds, you stabbed her five times in the abdomen. The deepest stab wound was to her mid abdomen.

[7] You disposed of Gurpreet’s body in scrub on the roadside of Hampton Downs

Road, south of Meremere.

[8] At 12.18 pm you bought a few things at the Meremere Superette and headed north. You threw Gurpreet’s bag out the window near Mercer. At Otahuhu you bought new clothes and put your old bloodied clothes in a plastic bag, though you left your old top in the changing room of the shop from where the Police recovered it. Sometime after 5 pm you left your old clothes under the house of an associate in Manurewa.

[9] On the evening of Saturday 9 April 2016 your brother, Mr Nishent Sharma, called the Police to say that you had confessed to the killing and were going to kill yourself. You now say that he did so at the urging of your father in India. The Police found and interviewed you on Sunday 10 April. You made three statements to the Police. In the third you told the Police you were present when Gurpreet was stabbed but that the injuries were self-inflicted, other than one. You located her body for the Police.

[10] The Police found obvious blood staining in the front passenger side of your car. Under a search warrant, they found the bag of bloodied clothing under your associate’s house.

[11] On 11 April 2016 you appeared in the Pukekohe District Court charged with murder. You were remanded in custody. In the High Court you initially pleaded not guilty. But on 17 August 2016 you pleaded guilty. You were convicted and given a first strike warning. You have no previous criminal history.

Impact on victims

[12] We have heard the Victim Impact Statements of the deceased’s father, brother and cousin. They leave no doubt about the devastating impact of your actions Mr Akash. Gurpreet was the loved daughter of parents whose dreams are now shattered and destroyed. She was the fun, vibrant sister with a bubbly personality whose killing means her family will never be the same. Gurpreet was the clever, independent, cheeky cousin whose killing still causes nightmares, inability to work or sleep. Some of her family apparently worry that they played some part in her death. They did not. They now feel like birds who have lost one wing, and can’t ever imagine flying again.

Offender’s personal circumstances

[13] Mr Akash, you are a 24 year old citizen of the Republic of India who entered New Zealand in 2013 on a student visa. You have been studying IT in Auckland and working part time. I am advised that you are from a respected family in India, who are likely to be deeply shamed by your actions. I am also advised by the Department of Corrections that your visa expired on 31 May 2016, that you are now unlawfully in New Zealand and that you will be deported at the completion of your sentence.

[14] I have received a report from the Department of Corrections which indicates you have a background of psychotic episodes. You took prescription medication in India but stopped taking it in New Zealand. Instead, at some point, you became a regular user of methamphetamine. The Department of Corrections assesses you as having a medium to high risk of harm to others, particularly when in a relationship with a woman, though that may be mitigated by medical assistance for management of your mental health. The Department understands you have attempted suicide and to be deeply depressed and assesses you as having a medium to high risk of self harm, which they will need to monitor and manage.

Approach to sentencing

[15] New Zealand law requires me to sentence you according to the purposes and principles of the Sentencing Act 2002. In this case these purposes include, particularly:

(a) holding you, Mr Akash, accountable for the harm done to

Ms Gurpreet Kaur and to the community by your offending;

(b) promoting in you a sense of responsibility for, and acknowledgement of, that harm;

(c) denouncing your conduct and deterring you and others from committing such offences; and

(d) protecting the community from you.

[16] Parliament has also provided that everyone who commits murder is liable to imprisonment for life. You must be sentenced to life imprisonment unless that would be manifestly unjust. In this case, as both the Crown and your submissions recognise, a sentence of life imprisonment is appropriate.

[17] The only remaining question is what should be the minimum period of imprisonment. Parliament says that must be the minimum term required to satisfy several of the purposes I have just mentioned and must be at least ten years.

[18] Parliament also says that, for the most serious cases of murder the minimum period must be at least 17 years unless that would be manifestly unjust. That includes where the murder was committed with a high level of brutality, cruelty, depravity or callousness.

[19] To decide on that the Court of Appeal says I have to consider your culpability compared with that in other cases.¹ Of course, any murder is brutal, cruel, depraved and callous. But I am required to compare different cases to ensure that the sentence I impose is fair.² If this comparison suggests a minimum term of less than 17 years is justified I need to consider whether a 17 year minimum would be manifestly unjust.

Minimum period of imprisonment

[20] I have considered the three cases identified by the Crown of frenzied stabbings of a person with whom the offender had an intimate relationship, which attracted minimum periods of imprisonment of 14 years, 15 years and 15 years respectively.³ I have also considered six other similar cases Mr Gibson identifies

where minimum terms of imprisonment of less than 17 years were imposed.⁴ Like

these cases, I consider your infliction of 29 cuts and stab wounds with a weapon, a knife, on Gurpreet Kaur exhibited brutality. As the Crown submits, it indicates a

_{persistent and frenzied attack.}

¹ _{R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA); Malik v R [2015] NZCA 597 at [30]- [32].}

² _{Blake v R [2016] NZCA 82 at [14](d).}

3. R v Tiumalu HC Wellington CRI 2005-091-581, 9 November 2006; R v McSweeney [2007] NZCA 147; R v DFL HC Auckland CRI 2004-044-8643;

⁴ R v Prole [2013] NZHC 1267; R v Singh [2015] NZHC 2369; R v Eddy [2014] NZHC 1543; R v

Schofield [2015] NZHC 2109; Holl v R [2015] NZCA 67; R v Gottermeyer [2014] NZCA 205.

[21] But compared to the cases where less than a 17 year period of imprisonment has been imposed, as the Crown submits, I consider your offending, Mr Akash, is aggravated by the fact that Gurpreet Kaur was in her first trimester of pregnancy. That did not make her particularly vulnerable in terms of s 104(1)(g) of the Act, though it can be expected to have contributed to her feeling psychologically vulnerable. But the point is that you knew she was pregnant, and you stabbed her most deeply and most often in the abdomen. Not only did you murder Gurpreet Kaur and deprive her family of her existence, but you deprived her and her family of the potential of another life. That is the key factor that raises your culpability above the other, relatively less serious, cases.

[22] I have read carefully, and taken into account, the heartfelt victim impact statements to which I have already referred. Mr and Mrs Singh, Mr Parkesh Singh, Mrs Dhillon and other family members, I acknowledge your presence in court and your pain. You have suffered that which no family should have to suffer. Your loss will be with you always. Nothing I can say will make up for that. I simply apply the law in sentencing Mr Akash on behalf of the New Zealand state.

[23] I have considered whether there are mitigating factors in this case, compared with the other cases.

(a) Mr Akash, you have no previous criminal history and no known history of violence which I take into account. You have admitted to regular use of methamphetamine, which was also a feature of your offending.

(b) I have considered the advice from the Department of Corrections about your medical condition. But I do not regard that as a mitigating factor. No expert evidence is before me about it. And you must take some responsibility for ceasing to take your medication in New Zealand.

(c) Mr Gibson emphasises that you were reacting to the suggestion that the baby was not yours. Emotional upset at such news is

understandable but it does not excuse or justify reacting with any violence, let alone the extreme violence you used. Nothing Gurpreet Kaur did justified your actions.

(d) The Department of Corrections assesses that you are “deeply ashamed of the horrific act” you committed, you are strongly conscious of the pain you have caused Gurpreet’s family and you do not blame the victim in any way. The Department assesses you as genuinely remorseful and you have written a letter to the court expressing remorse. I take that into account. But I also note that the terms of your letter blame your anger, not yourself. You blame your “anger” which “led” you to commit such a horrific crime and which “took” your freedom, your love and your life away from you. You need to further reflect on, and own, your responsibility for your actions.

(e) I also take into account your guilty plea, which spares Gurpreet Kaur’s family from the delay and upset, and the Crown and courts from the expense, of a trial to establish your guilt. I note that it comes after your efforts to cover up the murder, and to deny that you committed it in three Police interviews until confronted with overwhelming evidence and you pleaded guilty four months after arrest.

(f) Mr Gibson, on your behalf, submits that the cultural context is of significance. But if, by this, he means that cultural factors mitigate murder in New Zealand, I cannot agree. The right to life is a universal human right that is not subject to cultural qualification.

[24] One of the cases to which your counsel, Mr Gibson, referred concluded that cases involving killing with a knife where the 17 year minimum period has been triggered “have tended to involve additional acts of torture or cruelty, the presence of children or cases where death has occurred less quickly”.⁵ I am satisfied, after

_{considering the aggravating and mitigating factors, that the minimum period of}

⁵ R v Eddy [2014] NZHC 1543.

imprisonment in this case is comparable to those categories and to other cases where a minimum of 17 years was found to be justified.⁶

[25] In any case Mr Akash, overall, I am persuaded that the cruelty, brutality and callousness of your murder of Gurpreet Kaur was such that your minimum period of imprisonment should be the 17 years sought by the Crown under s 104 of the Sentencing Act. I do not consider that period is manifestly unjust.

Sentence

[26] Mr Akash, please stand.

[27] I order that you be imprisoned for a minimum period of 17 years. Depending on the decisions of the Parole Board, that minimum period may well be more than

17 years; you may not be released even then, depending on their decision. That is because you are sentenced to imprisonment for life.

[28] Please stand down.

_{Palmer J}

⁶ Blake v R [2016] NZCA 82; Pandey Johnson v R [2012] NZCA 595; R v Milner [2014] NZHC

233, R v Desai [2012] NZHC 1062; R v Smith [2013] NZHC 2782; R v Dawood [2013] NZHC

122.