R v Giri & Karki

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Tuesday 21 December 1999 070061/98 REGINA v NITIN GIRI 979214/98 REGINA v IVESH KARKI SENTENCE

1 HIS HONOUR: Each of the prisoners Nitin Giri and Ivesh Karki stood trial charged with the murder of Sajedul Haque at Kings Cross on 22 June 1996. The jury found each prisoner guilty and each was convicted accordingly. Following conviction on 5 September 1999 the prisoners were remanded in custody for evidence and submissions on sentence. The further hearing took place on 16 December 1999. 2 The deceased, Sajedul Haque, was subjected to a violent assault after he left a nightclub in Darlinghurst Road, Kings Cross early on the morning of 22 June 1996. He was knocked to the ground and thereafter he was kicked. According to one witness he was also stomped upon. 3 The deceased sustained severe head injuries and was admitted to St Vincent's Hospital where he was found to be deeply unconscious, a condition from which he never recovered. 4 Dr Cala conducted the post mortem examination upon the deceased and found the cause of death to be complications of the injuries the deceased had sustained to the head and face. Dr Cala identified those injuries as including:

(x) haematoma to the right and left peri orbital areas;

(xiii) brain damage caused by trauma to the head. 5 In the opinion of Dr Cala all the injuries found were consistent with the deceased having been assaulted, and the evidence established beyond reasonable doubt that the injuries were so caused. The verdict of the jury inculpates both prisoners in their infliction. However Dr Cala was unable to determine what impact or impacts caused the brain damage that led to the death of the deceased. 6 The deceased was a young man twenty-seven years of age who came from Bangladesh. He visited Kings Cross with friends from Bangladesh on the night of 21 June 1996. The party visited the "Illusions" nightclub and it was here that there was an altercation that involved the deceased and the prisoner Ivesh Karki. It seems that the deceased laughed at the way this prisoner's brother was dancing and exception was taken to this reaction. 7 Later there was a confrontation between the deceased and his friends and the prisoner Ivesh Karki and his companions outside the Kings Cross Hotel where Ivesh Karki and the deceased held on to each other. 8 Later still there was a further confrontation outside the nightclub Illusions and the deceased and his friends were followed into Illusions by both the prisoners and their Nepalese companions. It was when the deceased left Illusions for the second time that the fatal assault occurred. The deceased was followed from Illusions by the prisoners and a number of their companions. There were a number of eye-witness accounts of what then occurred and, not unexpectedly, there were differences in the various accounts of these eye-witnesses. However, it is clear from the jury's verdict that the jury was satisfied beyond reasonable doubt that both prisoners were inculpated in the assault upon the deceased who, as the evidence establishes, was affected by intoxicating liquor at the time. 9 Because the medical evidence did not establish which act or acts of violence caused death, the jury was directed that it could only find either prisoner guilty if in the case of that prisoner the jury was satisfied beyond reasonable doubt that the act or acts causing death were performed in a joint criminal enterprise in which the particular prisoner was participating and that that prisoner either

(i) shared a common intention with the other participant(s) of causing death or grievous bodily harm to the deceased, or

(ii) contemplated the intentional infliction of grievous bodily harm by one or other of the participants as a possible incident in the joint criminal enterprise. 10 It is clear from the jury's verdict that it was satisfied beyond reasonable doubt that each prisoner for relevant purposes was a participant in the joint criminal enterprise in which the fatal injuries were sustained. 11 This is a significant matter because Mr Walsh, on behalf of the prisoner Nitin Giri, submitted I should assess his client's criminality as being less than that of Ivesh Karki. I have concluded I should not approach my sentencing task on this basis. 12 When interviewed by the police, Ivesh Karki admitted he struck and kicked the deceased, kicking him "once". When interviewed by the police, Nitin Giri admitted that he struck the deceased causing him to fall to the ground. He conceded he may have kicked the deceased "if somebody else has seen me". Neither prisoner gave evidence at the trial. 13 The eye-witness evidence, as I assess it, proved that both prisoners kicked the deceased after he fell. Rahman Mahbubur said that after the deceased fell down both prisoners kicked him. Darren Diolosa also said that there were two men kicking the deceased on the ground, that each kicked the deceased four times and, from the way they were moving, these men were putting a lot of weight into their kicks. Jim Diamond said that two men kicked the deceased on the ground, one man kicking him once and the other kicking him two or three times. Sheikh Islam said that he saw both prisoners kick the deceased. Daniel Thompson described a frenzied kicking attack and he specifically recalled that "Ponytail" (that is, Nitin Giri) kicked the deceased. He said that the assault on the deceased ended when the deceased was stomped on the head three times. Simon Page, who had been at an automatic teller machine at a bank, arrived later than his companion Daniel Thompson, but he remembered one, maybe two, men kicking the deceased on the ground. Orapai Taria saw two men kicking the deceased on the ground and each kicked him more than once. Anthony Bayes only saw one man kick the deceased on the ground. 14 Allowing for the discrepancies in the eye-witness versions, I am nevertheless satisfied beyond reasonable doubt on the evidence given at the trial that both prisoners kicked the deceased as he lay upon the ground. 15 Mr Walsh referred to the evidence of Mr Thompson and Mr Page in support of the submission that his client should be viewed more favourably than Ivesh Karki in assessing the objective gravity of the crime as the evidence pointed to Ivesh Karki being the one who stomped on the deceased. He also submitted that the evidence did not establish that Nitin Giri became involved in events until he and Ivesh Karki met up with the deceased outside Illusions before the deceased entered that place for the second time. These features, he submitted, warranted the conclusion that Nitin Giri's criminality was less than that of Ivesh Karki. I am not persuaded that this is so. Each man participated in what was a savage and cowardly assault upon the unfortunate victim who, after he was knocked to the ground, was kicked by each prisoner as he lay defenceless and unconscious. Each prisoner had the requisite intent for the crime of murder. Each prisoner committed a crime which, viewed objectively, was extremely serious. 16 The sentences that I impose must recognise the objective gravity of what was done and must address in an adequate manner the consideration of deterrence. These observations apply equally in the case of each prisoner. 17 I turn to consider the subjective features of each offender.

Ivesh Karki 18 Ivesh Karki was born on 2 June 1976. The pre sentence report prepared following conviction, and dated 26 November 1999 records in summary the prisoner's background and I draw upon it to outline this background. This prisoner was born in Nepal where he was brought up, the son of a prominent figure in Nepal. His father is the Secretary of the Forestry Commission. The prisoner was educated at a prominent and prestigious boarding school in India. Having completed his studies there he came to Australia to study for a business studies diploma with the intention of returning to Nepal to assume responsibility for family business interests. The prisoner was part way through the course when his studies were interrupted by the commission of this crime and its consequences. Since he has been in Australia, apart from attending to the study referred to, the prisoner has worked with a fast food outlet for some six months and as a cleaner for some two years. In the period he has been in custody since his conviction, the prisoner has pursued study and the education officer at Parklea has assessed him as being an excellent student with a high level of commitment to his studies. 19 The author of the pre sentence report has reported that the information gathered by him indicates that the offence was out of character for this prisoner. 20 The prisoner was assessed by a psychologist, Dr Duffy. The prisoner gave this witness an account of his involvement with the deceased which is not consistent with the evidence led by the Crown at the trial and which evidence I accept. In particular the prisoner told Dr Duffy he did not intend to hurt the deceased and that he was afraid of the deceased. Plainly the jury found the prisoner had the requisite intent and what the prisoner did in following the deceased and in assaulting him was inconsistent with the fear he asserted that he entertained at the time he consulted Dr Duffy. Nevertheless, although the prisoner appears to have been less than frank with Dr Duffy about the circumstances of this crime, the concluding paragraph in the psychologist's report is noteworthy: "Whilst in custody, Ivesh has taken advantage of courses offered to him such as anger management and drug and alcohol counselling. The major problem for him, however, is reconciling what he has done with the shame and humiliation this has caused him and his family back in Nepal. He still seems to be unable to come to terms with this and has avoided speaking to his father since his arrest and has not been able to tell his mother about the Court proceedings. He will need some supportive counselling from a psychologist, particularly following his sentence. Ivesh is eager to make amends and is prepared to assume all the responsibilities of study and work when he returns home to his family." 21 This prisoner gave evidence on the hearing on sentence. He said that he had been drinking on the night of the offence and that he had had half a bottle of vodka and a quantity of beer. The prisoner was cross examined about this account of what he had been drinking and about what he had said to the police on this topic during the later interview. 22 The evidence certainly does not establish that the prisoner was intoxicated but Mr Cusack made it clear that evidence of alcohol intake was led not in an effort to excuse the prisoner's behaviour but by way of possible explanation for it, bearing in mind the prisoner's prior good character. Assessing the evidence in point, I am prepared to accept that the prisoner had been drinking and that this may have loosened his inhibitions. 23 The prisoner said that relations with his father were strained before the commission of this offence and although he used to communicate with his mother since his arrest he has not communicated with his parents because of his sense of shame about what has happened. I accept that the prisoner is ashamed and I accept also that he entertains genuine contrition for what he has done. 24 I am satisfied that this prisoner is a man of prior good character and that the commission of this crime has already had, and will continue to have, tragic consequences for him. 25 Mr Cusack submitted that I should find special circumstances in this case. Of particular relevance is the prisoner's age, his background as I have reviewed it, and the need for extended supervision in the interests of the prisoner's rehabilitation after what must be a lengthy period in custody in the case of a person who has never been in prison before. I accept that there are special circumstances.

Nitin Giri 26 This prisoner was born on 17 September 1976. I draw on his pre sentence report dated 19 November 1999 to record his background. He too was born in Nepal and he too comes from a privileged background. His family own a tea plantation and the family has developed a reputation for generosity, benevolence and support of community projects in Nepal. It seems that the prisoner himself was involved in community projects before he left Nepal. The prisoner studied to year ten level at a college in Kathmandu but then came to Australia in February 1996 to study for his Higher School Certificate. He enrolled at the TAFE at Granville College for this purpose and he obtained part time work at a fast food outlet where it seems he was well regarded because he was promoted (after the commission of this offence) to the position of Trainee Manager. 27 The author of the pre sentence report has concluded that the prisoner is a young man who "apart from his involvement in this offence appears to have led a responsible and dutiful lifestyle". The author added that the prisoner "appears conscientious and devoted to his family with concern about them being foremost in his thoughts." 28 The prisoner gave evidence on the hearing on sentence. He too expressed his contrition and his shame concerning his involvement in this offence. I accept that the expression of these sentiments was genuine. 29 This prisoner has been supported since the commission of this offence by his brother, Nabin Giri, who has come to Australia and who gave evidence on the hearing on sentence. According to Nabin Giri, his brother will not be left completely without support after sentence is imposed because there is a cousin living in Australia who will afford, with friends, some measure of support. Nabin Giri however will be returning to Nepal. 30 Dr Waters, psychiatrist, assessed this prisoner on two occasions, in July 1996 and again in November 1999. On the first of these assessments the prisoner expressed shame for what he had done and the dishonour he has caused his family. He also expressed his contrition. When last seen, the prisoner presented with what Dr Waters has assessed to be an adjustment disorder with depression. In the doctor's opinion, this prisoner will have particular difficulty in serving his sentence. 31 It has been submitted that I should find special circumstances in the case of Nitin Giri. Like Ivesh Karki this prisoner is a man of previous good character with no prior convictions. He is a young man who is about to be sentenced to a lengthy term of imprisonment. In the interests of his rehabilitation he will need an extended period of supervision when he is released. As in the case of Ivesh Karki, I am satisfied that there are special circumstances for the purpose of s 5(2) of the Sentencing Act. 32 Evidence was introduced concerning the fact that the prisoner co-operated in providing a statement and subsequently in giving evidence under subpoena at a criminal trial in the District Court. The subject matter of the statement and the trial was an offence of a sexual nature committed in premises in which the prisoner was living at the relevant time. It was not suggested that the prisoner was in any way involved in this offence and it was another person who stood trial for it. From the material placed before me, the evidence which the prisoner was able to give assisted neither the prosecution nor the accused. Mr Walsh did not contend that the prisoner's involvement in this matter is of great significance nor do I consider this to be the case. I suppose that it does show a measure of responsibility in that it reflected a willingness on the part of the prisoner to co-operate with the police and to give evidence when called upon to do so. I take this into account. 33 Each prisoner has been in custody continually since the jury returned with its verdict on 15 September 1999. Each prisoner was taken into custody for one night during the trial in circumstances and for reasons which it is unnecessary to state for present purposes. Each prisoner had spent time in custody between the date of arrest and the date of the grant of bail. Nitin Giri was arrested on 24 June 1996 and was granted bail on 8 August 1996. He then remained on bail until the trial. Ivesh Karki was in custody following his arrest on 24 June 1996 until 24 October 1996 when he was admitted to bail. He then remained on bail, like Nitin Giri, until the date of his trial. It is to be observed then that Ivesh Karki has spent longer in custody so far than Nitin Giri. However assessing overall the objective and subjective features in both cases, I have concluded that I should impose the same sentence in each case. I do so alert to the periods each prisoner spent in custody before being admitted to bail and I do so intending to backdate each sentence to commence on 15 September 1999. 34 It has been urged on behalf of each of these prisoners that imprisonment will impose exceptional hardship because each prisoner is going to be incarcerated away from home in a foreign country. The Crown acknowledged that this is a relevant consideration as was urged by both Mr Cusack and Mr Walsh. 35 In Ferrer-Esis (1991) 55 A Crim R 231 Hunt J, as he then was, with whose judgment the Chief Justice and the Chief Judge at Common Law agreed, said at 239 that the fact that the respondent in that case was to be incarcerated in a foreign country was not a circumstance to be attributed "very much weight". In that case however the offender appears to have come to Australia for the purpose of importing a prohibited drug. More recently in Jelks (unreported, NSWCCA, 1 December 1995), Hidden J, with whom the other members of the court agreed, commenting upon the fact of incarceration in a foreign country, said: "As to the undoubtedly invidious position of a foreign national in prison in this country, the most anyone in this court has ever said is that very little weight can be given to that fact: see Ferrer-Esis in the judgment of the Chief Judge at Common Law at 239." 36 In Kogelbauer (1993) 65 A Crim R 357, a decision to which Hidden J referred in Jelks, it was submitted that the prisoner should have attracted a shorter sentence because, being a foreign national, his security progression through the gaol system would be restricted, and he could never progress beyond a C1 classification, with the consequence that he would have to serve his entire period in custody quite confined by a physical barrier. The members of the Court of Criminal Appeal in that case were not in agreement about the significance of this for sentencing purposes. Meagher JA considered this ought not to be taken into account. Hunt CJ at CL considered it was relevant to take into account loss of the usual progression through the prison system. Sully J appears to have agreed with Meagher JA. 37 The only other authority to which I have been referred is Brown (unreported, NSWCCA, 13 July 1993). This case went on appeal on the issue of the severity of the sentence imposed at first instance. The appeal was dismissed. One of the matters that had been taken into account by the sentencing judge was that a sentence would be more onerous upon him because of his race and culture and the appellate court did not conclude that the trial judge had erred in this approach. 38 I have regard to the concession of the Crown to which I referred earlier and I recognise that the facts in the present case can be distinguished from Ferrer-Esis because neither of these prisoners came to this country for the purpose of committing a crime. I am satisfied that in the case of each prisoner incarceration is going to be more difficult for him away from his native land. This I will take into account. 39 The pre sentence reports in the case of each of these prisoners disclose that the Department of Immigration has stated that each prisoner will be deported once he is released from custody. However, as I understand the authorities, this prospect of deportation ought not influence the sentence which I pass. In R v Shrestha (1990-91) 173 CLR 48, the offender, coincidentally a resident of Nepal, was convicted in Western Australia of three drug offences against s 233B of the Customs Act. The judge at first instance declined to order that the prisoner become eligible for parole but the Court of Criminal Appeal determined otherwise. An application for special leave to appeal to the High Court was refused. It was determined that there was no rule that it was inappropriate for a foreign offender, who had no ties in Australia and whose only purpose in entering Australia was to commit serious crime, to be eligible for parole. It was pointed out in that case also that policy may change between the date of sentence and the date of expiration of sentence. Moreover in the course of their joint judgment Deane, Dawson and Toohey JJ said at 69: "It would be closing one's eyes to reality to deny that the parole system is sometimes abused and is often ineffective. Nonetheless, in a society where imprisonment for the punishment of crime is accepted as being sometimes unavoidable, the parole system represents an important influence for the reform and rehabilitation of those in gaol. In a case where subsequent eligibility for parole is not precluded by order of the sentencing judge, the indeterminate nature of the period (within the confines of the head sentence) which will actually be served in custody provides the offender with 'a basis for hope of earlier release and in turn an incentive for rehabilitation' (see Bugmy v The Queen (1990) 169 CLR 525 at 536). From this flow two significant and valuable consequences. The first is that the prisoner is likely to be better behaved while in confinement. The second is that a prisoner who retains at least some degree of control over his future fortunes and who has a real incentive to reform is more likely to retain basic self respect and to enjoy some real prospects of eventual rehabilitation. In the harsh context of a prison environment, the potential advantages - in terms of hope, self esteem, incentive for reform and rehabilitation - which eligibility for release on parole offers a prisoner in an Australian gaol should not be underestimated. The mitigation of sentence which the parole system allows is ordinarily directed towards rehabilitation. It is not, however, exclusively so. Circumstances can arise in which mitigation of sentence by release on parole is justified upon purely compassionate grounds. An obvious example is where a prisoner who has become eligible for release on parole is terminally ill. Another example is where the severe illness or other unusual needs of the spouse or infant children of a prisoner are strong grounds for release. It is true that it is only in exceptional circumstances that the mitigation of punishment for reasons of compassion, rather than rehabilitation, will justify release on parole. Where those reasons exist, however, they can be all-important. An inability on the part of the authorities to take them into account at all may devastate an individual and brutalize the prison system. It is a real benefit of the parole system that it enables some compassion to be exercised, if necessary, when a prisoner has reached the stage of eligibility for release on parole." 40 Their Honours went on to say: "This country has a direct and significant interest in the well-being and rehabilitation of all who are detained within its gaols, whether or not their origins, ties or future prospects lie in this or in some other country. It also has a responsibility, both moral and under international treaty, to treat all who are subjected to criminal proceedings in its courts or imprisonment in its gaols humanely and without discrimination based on national or ethnic origins (see e.g. International Convention on the Elimination of All Forms of Racial Discrimination: (1965), Art. 5(a); Reg v Binder [1990] VR 563 at 569-570). To deny foreign offenders of the kind in question the opportunity for the amelioration of their situation and the incentive for reform and rehabilitation which the parole system offers is not to differentiate by reference to degrees of criminality or prospects of rehabilitation. It is to discriminate against prisoners of that class because of their origins, their place of residence and their family ties." 41 In Liang (unreported, NSWCCA, 2 June 1995) the prisoner was illegally in the country. Sully J, with whom the other members of the court agreed, said at p 4 of his judgment: "There is clear law to the effect that the court is not entitled to take the respondent's immigration status into account in actually determining what it considers to be an actual sentence warranted in law…" 42 More recently in Jap (unreported, NSWCCA, 20 July 1998) Sully J, with whose judgment Smart J agreed, said this at p 3: "I think that the course of authority dealing with that vexed and difficult question of liability to deportation of foreign nationals committing criminal offences in this country, has settled, at least broadly, the principle that whether such a person will or will not be deported at the end of an appointed minimum term is not a matter for the courts, but is a matter for the executive government; and that, so far as the courts are concerned, such a person should be dealt with as though he or she were a national of this country, it being left to the proper processes of the executive government, and the public administration machine otherwise, to deal with the question of deportation." 43 There has been unanimity at the Bar table in the course of submissions that whether or not these prisoners face deportation at the end of any minimum term which I fix is not a relevant consideration for me any more than it would be a relevant consideration for the Parole Board when eventually considering their release: as to the position of the Board see s 17(2) of the Sentencing Act. In my opinion the correct approach requires that I proceed to sentence putting aside consideration of possible deportation of either prisoner upon release from custody. 44 Having weighed the objective and subjective circumstances concerning each of these prisoners, I have concluded that the appropriate total sentence in each case is one of penal servitude for seventeen years. Finding as I do special circumstances in each case, I fix a minimum term in each case of twelve years and an additional term of five years. 45 Accordingly in the case of each prisoner I impose sentence as follows: I sentence each prisoner to a minimum term of twelve years penal servitude commencing on 15 September 1999 and to expire on 14 September 2011 and an additional term of five years to commence on 15 September 2011 and to expire on 14 September 2016. I specify 15 September 2011 as the first date upon which the prisoner is to be eligible for release upon parole. **********

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