Supreme Court New South Wales Medium Neutral Citation: R v Kumar [2014] NSWSC 1747 Hearing dates: 2 October 2014, 17 October 2014 and 14 November 2014 Decision date: 10 December 2014 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: For the murder of Rajeshwari Kumar, sentenced to imprisonment consisting of a non-parole period of 17 years to commence on 6 March 2012 and to expire on 5 March 2029. The balance of the term will be 6 years, expiring on 5 March 2035, making a total sentence of 23 years. The earliest date on which Raj Kumar will be eligible for release on parole will be 6 March 2029. Catchwords: CRIMINAL LAW - sentence - convicted after trial - murder Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Category: Principal judgment Parties: Regina (Crown) Raj Kumar (Defendant) Representation: Counsel: M Hobart SC (Crown) D Dalton SC (Defendant) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Defendant) File Number(s): 2012/74019 Publication restriction: Nil JUDGMENT 1. On 4 June 2014 Raj Kumar was charged by way of indictment that, on 1 February 2012, at Colyton NSW, he murdered Rajeshwari Kumar. The accused pleaded not guilty, and a jury trial then proceeded. On 26 June 2014 the jury, by a majority of 11 to 1, found the accused guilty of murder. He comes now to be sentenced for this offence. 2. The factual background, briefly, is as follows. The offender and the deceased were Fijian Indians. They were married in Fiji in about 1989, and moved to Australia, via New Zealand, some time later. Precise timings are unclear, but it was probably in the early 1990's. They have lived here ever since. They had three children: two girls, SK (born in 1990) and KK (born in 1998) and a boy, AK (born in 1999). Their relationship had deteriorated significantly over the three or four years before the killing. I shall be saying more about this later. Suffice it to say for present purposes that at the time of the killing the offender was on bail in relation to two charges of sexually assaulting the deceased. One of the conditions of his bail was that he stay away from the matrimonial home at 13B Kent Place Colyton. Accordingly, since November 2011 he had been living with relatives of the deceased in a house at Turner Street Colyton. Their son, AK, also lived there much of the time, so that at the relevant time the deceased and their younger daughter, KK, were living alone in the house at Kent Place. 3. On Wednesday 1 February 2012 the deceased drove KK to school. When KK returned from school, at about 2.40 that afternoon, she found the house locked and her mother's car absent, indicating that the deceased must be away from home. This had never happened before: the deceased had always made a point of being at home when KK returned from school. For this reason, KK did not have a key to the house. After knocking on the door and receiving no response, she walked to the house in Turner Street where her father was living with her mother's relatives, and told them what had happened. Various subsequent attempts to locate the deceased proved unsuccessful, and later that evening the matter was reported to the police. The next morning police officers made their way to the rear of the Kent Place house. They entered a large covered patio area. There they saw that one of the windows into the house proper had been broken. The window looked into a room which was described as a study, containing a bed on which a woman's body was lying. One of the officers gained access to the room by putting his arm through the hole in the broken window, opening the window from the inside and then climbing through it. He found the deceased's body lying on its back. The police looked through the house which appeared to be neat and tidy. There was no indication that it had been ransacked, and no sign of forced entry other than the broken window. 4. A subsequent post mortem examination showed that the cause of the deceased's death was suffocation by external airways occlusion. There was no indication that pressure had been applied to the neck, leading the forensic pathologist, Dr. Wills, to conclude that the suffocation had been caused by forcible obstruction of the deceased's facial airways. This was consistent with bruising and abrasions around her nose, mouth and chin. Given other matters at the scene, Dr. Wills considered it probable that the deceased's face had been forcibly pushed down into the bedding for at least part of the time that she had been deprived of oxygen. 5. The offender has always denied that he had any involvement in the killing of his wife. The case against him was therefore a circumstantial one. When the whole of the evidence was put together it became a very strong circumstantial case. The following is a brief description of the evidence as given at the offender's trial. 6. There had been increasing conflict between the offender and the deceased in the years leading up to the killing. It is likely that this was precipitated by the deceased's suspicion that her husband was having an affair with a woman in Fiji, Asha Singh. Until late 2011 the two of them continued to live in the family home, but in separate bedrooms. There was also escalating domestic violence on the part of the offender, which included sexual assaults on the deceased. The first known incidence of a sexual assault was in November 2009. The deceased did not report this to the police for another two years, but she told her local doctor about it the following month. The police first became involved in their domestic affairs in July 2011, when the deceased reported an assault by the offender and had an Apprehended Domestic Violence Order ("ADVO") taken out against him. The following month the offender himself applied for an ADVO, saying that the deceased had become verbally abusive towards him. Also in August 2011 the deceased twice attended St Marys Police Station, where she started to make a statement setting out a history of domestic violence. However she never completed this statement. The situation came to a head on 2 November 2011 when the deceased reported to the police that she had been sexually assaulted by the offender the previous month. It was then that she told them about the earlier sexual assault in November 2009. Two days later the offender was arrested and charged with two counts of sexual assault. Bail was initially denied, but was granted two days later, on 6 November, on condition that the offender not go within 100 metres of the Kent Place house except for the purpose of collecting his belongings, which was to be done in the presence of a police officer. It was then that the offender moved into the Turner Street house where the deceased's mother, brother and other relatives were living. The sexual assault charges were due to come before the Penrith Local Court on 7 February 2012. 7. On the morning of 1 February, by considerable coincidence, both the offender and the deceased went to the Penrith office of the Legal Aid Commission. The deceased was seeking advice about a family law issue, while the offender was concerned about his forthcoming court appearance in relation to the sexual assault charges. The offender told the legal aid solicitor that he had seen his wife in the waiting room - something which he later denied, but I have no doubt that he did. Indeed, it is very likely that it was the sighting of his wife in this context which led to his decision to kill her. 8. By about mid-morning both the offender and the deceased had left the Penrith area. The offender's van was seen at 10.18 am, driving in the direction of Colyton, while the deceased drove to the Aldi supermarket in St Marys where she bought a number of grocery items. CCTV footage shows her leaving the store at 11.27 am. 9. I have already described KK coming home after school and finding the Kent Place house locked, ultimately leading to the discovery, the next day, of the deceased's body in the downstairs study. Later that day, 2 February 2012, the offender voluntarily attended St Marys Police Station and participated in an interview. He said that he had not seen his wife since 4 November the previous year. As to his movements the previous day, he said that after leaving the Penrith Legal Aid office he had gone straight home to Turner Street, where he remained until he left, that afternoon, to collect his son from school. After that his movements were well documented. 10. It was not long after the offender had left the police station on 2 February that other police officers located the deceased's car in Dorothy Crescent, Colyton, not far from Kent Place. The car was unlocked, and the key was in the ignition. The offender's DNA was found on the key, although the car had been purchased after he and the deceased had separated, and he had apparently never been in it. The car also contained some of the groceries that the deceased had purchased at Aldi the previous day, although quite a number were missing. The police subsequently searched the offender's Hi-Ace van, where they found virtually all the Aldi groceries which had been missing from the deceased's car. And if this was not enough to implicate the offender in the deceased's death, a tea towel which was located beside the broken window of the Kent Place house was later found to have a bloodstain containing the offender's DNA. 11. On 6 March 2012 the offender was arrested and charged with the murder of his wife. He has been in custody ever since. 12. The above summary is only an extremely brief précis of the extensive evidence given at the offender's trial. The offender himself gave evidence, in which he continued to maintain his denial that he had been in any way responsible for his wife's death. Nevertheless, the cumulative effect of the various circumstances pointed inexorably to the offender as his wife's killer, and it ultimately became a very strong Crown case. 13. Nobody other than the offender knows precisely when and how the deceased was killed. In terms of the timing, there are two possible scenarios. The first, and in my view by far the most likely, is that the offender went virtually directly from the Penrith Legal Aid office to the Kent Place house, arriving there well before the deceased did. He almost certainly would have parked his van some distance away, probably in the vicinity of Dorothy Crescent, in order to prevent the deceased being alerted to his presence by seeing it in the vicinity of the house. He then gained entrance to the house by breaking the study window, and waited inside for the deceased to return home. When she did so he attacked her and ultimately suffocated her. The other possible time scenario suggested by the Crown is that he broke into the house later in the day, when the deceased was already at home. However, as already indicated, I consider the first scenario to be much more likely. In either case, after killing the deceased he drove her car to Dorothy Crescent where, before abandoning it, he removed some of the Aldi groceries and put them into his own van. He then presumably returned to the Turner Street house. In this regard, the deceased's mother said that the offender returned home at about 2.00 that afternoon. This was in direct conflict with what the offender told the police, namely that he went straight home after leaving the Penrith office, and was there by 11.00 that morning. 14. It follows that this was an entirely unprovoked killing, in which the offender took the deceased by surprise in her own home and deliberately suffocated her. He has consistently denied being involved in the killing, and thus has shown no remorse. His motive almost certainly was to prevent her from giving evidence against him in relation to the charges of sexual assault, which were due back before the courts the following week. 15. The Crown submissions on sentence describe this offence as "callous and violent", and in the mid range of offences of murder. The defence submits that it is slightly below the mid range of offences, and describes it as essentially a spontaneous offence, with little or no planning. In this regard I accept that it was probably only on the morning of the killing that the offender decided on this course of action. But it by no means follows that it was a "spontaneous offence", a term usually reserved for offences which occur in the heat of the moment. There was sufficient premeditation for the offender to break into the deceased's home in such a manner that the deceased, entering from her car, could never have discerned that this had happened, and then to wait for her return so that he could attack and kill her without the possibility of anybody witnessing these events. In this regard, it is clear that he intended to kill the deceased, rather than to inflict grievous bodily harm. 16. In my view this offence falls within the mid range of offences of murder. 17. I turn now to say something about the offender personally. He was born in Fiji in January 1960, and is thus 54 years old. He had little formal education, having left school at about the age of 14 years. Thereafter he worked as a carpenter, although without any formal qualifications. Apart from a brief time in Canada in 1980, he remained in Fiji until leaving for New Zealand in the late 1980's and then coming to Australia in the early 1990's. By that time he was married to the deceased and their oldest daughter, SK, had been born. In this country he had a stable employment history: for 15 years, until only three months before this offence, he was employed by Spotless Dry Cleaning as a driver, delivering clean sheets and towels to hotels. He has never previously been convicted of any criminal offence, but at the time of the killing was on bail in relation to the sexual assault charges involving the deceased. He must have been highly regarded by the deceased's family, for it is most unusual, to say the least, for a person who has been forced to leave the matrimonial home because of domestic violence allegations, to then move in with his wife's closest relatives. On all accounts he has a continuing relationship with his two younger children, KK and AK, who visit him in gaol, but he is estranged from his older daughter, SK. 18. On 24 September 2014 the forensic psychologist, Tim Watson- Munro, interviewed the offender in Long Bay Gaol in the presence of an interpreter. His report, dated 1 October 2014, was tendered by the defence. He found the offender to be suffering from a degree of reactive depression, which essentially relates to his current circumstances. There was nothing to indicate any major psychiatric disturbance, either in the offender's presentation or his prior history. His physical health is not good, but his problems are apparently not sufficiently severe to raise issues which are relevant on sentence. 19. Section 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Act") sets out a number of aggravating and mitigating circumstances which are required to be taken into account on sentencing. There are two aggravating factors which are relevant in this case and are not inherent in the offence of murder. They are as follows: first, pursuant to subsection (2)(eb), that the offence was committed in the victim's home, thereby violating what should have been the deceased's reasonable expectation of safety and security. This is a significant issue in the circumstances of this case, where - as already indicated - the offender almost certainly broke into the deceased's home and then lay in wait for her to return so that he could attack her without the possibility of being observed by anyone else. The other aggravating factor, pursuant to subsection (2)(j), is that the offender was on bail in relation to the charges of sexual assault relating to the deceased. The Crown submissions also refer, in this context, to the fact that the proceeds of sale of the matrimonial home have been used to fund the offender's defence to the current charge. The defence submits, rightly in my view, that this is not a relevant circumstance. I am therefore putting it to one side for present purposes. 20. The primary mitigating factors under s 21A which are relevant to this case are, first, pursuant to subsection (3)(e), that the offender has no record of previous convictions. This is undoubtedly correct, but it must be seen in the context of the fact that there had been a lengthy history of domestic abuse perpetrated by the offender upon the deceased. Given the whole of the evidence in the trial, I find this to have been established beyond reasonable doubt. The other mitigating circumstances relied upon by the defence, which are interrelated, are that the offender is unlikely to re-offend and has good prospects of rehabilitation, pursuant to subsections 21A(3)(g) and (h). I am inclined to accept this as correct. The offender faces a lengthy term of imprisonment. He will be a relatively elderly man by the time he is eligible for release, and - given that he has no previous criminal convictions - I consider it unlikely that he will offend again. 21. The offender has continued to deny his involvement in this offence, and has thus displayed no remorse. This, of course, cannot be used in aggravation of sentence, but it deprives him of what can sometimes be a powerful mitigating feature. 22. It is also relevant to consider the primary purposes of sentencing, as set out in s 3A of the Act. Without listing these purposes comprehensively, they effectively represent the goals of punishment, deterrence, rehabilitation and denunciation. In this regard, I accept the defence submissions that the offender has good prospects of rehabilitation. Personal deterrence is, in the circumstances, unlikely to be relevant, but general deterrence remains a real issue, as do the remaining considerations of punishment and denunciation. 23. The maximum penalty for murder is life imprisonment, which is reserved for the worst cases of its kind. The Crown does not submit that this case falls within that category, nor could it in the circumstances. The standard non-parole period is 20 years. This has been recognised, since the High Court judgment in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, as being a guidepost rather than a starting point, as had previously been considered. 24. Both counsel have referred me to a number of sentencing cases, most of which involve men who have murdered their partners. I have taken these cases into consideration, but again they can operate only as guideposts. Each case must depend on its own individual circumstances. The circumstances in this case, as I have said, place the offence itself into the mid range of offences of murder. Taking into account the various other considerations relating to the offender himself, I propose to impose a non-parole period which is below the standard non-parole period, but not to a significant degree. 25. The defence submits that there are special circumstances which justify the imposition of a longer parole period than specified in s 44 of the Act. In this regard it is submitted that the offender will need ongoing assistance upon his release from prison when he is attempting to reintegrate himself into the community. In view of the lengthy term of imprisonment which I am bound to impose in this matter, he will, in any event be subject to quite a lengthy parole period. Nevertheless, I propose to take this into account in slightly varying the statutory ratio between the total sentence and the non-parole period. 26. Extremely moving victim impact statements were read by or on behalf of a number of the deceased's relatives, including her and the offender's three children. These statements bear testimony to the devastating effect that the deceased's violent death has had upon her family members. The Court expresses its sincere sympathy to all those whose loss has been so eloquently expressed in these statements. Nevertheless the law does not permit them to be taken into account in determining the appropriate sentence. 27. The offender has been in custody since 6 March 2012. His sentence is therefore to be backdated to commence on that date. 28. Raj Kumar, for the murder of Rajeshwari Kumar, I sentence you to imprisonment consisting of a non-parole period of 17 years to commence on 6 March 2012 and to expire on 5 March 2029. The balance of the term will be 6 years, expiring on 5 March 2035, making a total sentence of 23 years. The earliest date on which you will be eligible for release on parole will be 6 March 2029. ********** Amendments 22 July 2016 - Publication restriction removed – judgment published DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2016