R v Patel

Supreme Court of NSW|2015-09-10|Before: Wilson J, Ms P

Judgment

During the course of her trial for the murder of Purvi Joshi the offender, Manisha Patel, told the jury of the circumstances in which she said she attended the Kyeemagh apartment where Ms Joshi lived, and of what happened after she arrived there in the early hours of 30 July 2013. On 1 July 2015 the jury returned a verdict of guilty to murder. Implicit in that verdict is the jury's rejection of the offender's account of the events.
It now falls to this Court to determine the facts of the crime, consistent with the verdict of the jury, and to pass sentence upon Ms Patel for the crime of murder. Murder is an offence contrary to s 18(1) of the Crimes Act 1900 and it carries a maximum penalty of life imprisonment. A standard non-parole period of 20 years imprisonment is specified by the table in Division 1A of the Crimes (Sentencing Procedure) Act 1999.
The maximum penalty and the standard non-parole period operate as legislative guideposts that inform the exercise of the sentencing discretion: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The other features to which the Court must have regard are the objective gravity of the crime, the personal circumstances of the offender, and the relevant principles of sentencing.
All crimes of murder are very serious, but where on the continuum of gravity an offence may fall is dictated by the facts of the particular crime and an offender's moral culpability for it. The Court has determined the facts of the offender's crime to be these.

The Background to 30 July 2013

It is necessary to go into some detail about the background to the events of 30 July 2013, because it is what occurred in the months before that date that informs and casts light upon the circumstances of the commission of the crime.
All of those at the centre of these events are Indian nationals who were living in Australia in 2013, Ms Patel as a citizen.
Nirajkumar Dave was born in 1979 in Gujarat state in India. He came to Australia in 2007 for a time, and returned to stay in 2009. Ms Patel was also born in Gujarat state, in 1982. Purvi Joshi too came from Gujurat, having been born in Ahmedabad, and spending all but the last few weeks of her life there.
The offender moved to Australia in 2008 to join her then husband, another Indian national living and working in Australia. Her marriage, which had been arranged by her and her new husband's family, was not a success, and Ms Patel separated from her husband in 2010. They later divorced.
In 2011 the offender and Mr Dave met through Shaadi.com, a web-site used by many Indian nationals, in India and all around the world, to meet others with a view to matrimony. Having been in contact on-line for a short period, the two met in about August 2011. The offender was at that time living in Westmead and working at Gymea. She later moved to Rockdale, and the frequency of her meetings with Mr Dave, who also lived in Rockdale, increased. A sexual relationship began (T745:12).
The couple became close. They saw each other three or four times a week, and spoke on the telephone daily.
In November 2011 Mr Dave moved to the apartment which Ms Patel was sharing with a number of others, sharing her small bedroom with her. Although there was a single bed and a single mattress in the bedroom, the couple were sexually involved during this time. They had discussed marriage and intended to get to know each other better through their closer living arrangements (T746). The offender asserted that, by December 2011, they had decided marriage was not for them (T781:28). Ex. K demonstrates that her relationship with Mr Dave continued to be of primary importance to the offender after that time (Ex. K:18 for example).
In March or April 2012 Ms Patel resigned from her position as an Office Manager, but was unable to immediately find another job. She lived on her savings whilst looking for work.
Mr Dave, who worked as a security officer at the International Airport at Mascot, suggested that the offender take up the same work, and in June 2012 the offender applied for and obtained a position as a security guard at the airport. She received the necessary training to obtain a security licence. Ms Patel commenced working at the airport in September 2012. She needed a car to get to work and she and Mr Dave decided to buy a black Peugot convertible together (T849 - 852). They paid or intended to pay half each, although it was the offender who used the car regularly. Mr Dave owned and used a Toyota Camry.
The offender and Mr Dave continued to share a single bedroom in their Rockdale accommodation, with occasional sexual contact between them (T783; 790). Each returned separately to India on occasion to visit family. As well as living together, they were in frequent telephone contact (Exs. K, L). At the same time Mr Dave was in regular communication with his wife in India, from whom he had separated, but with whom he was attempting to rekindle a relationship. Ms Patel was also exploring other marriage options, through Shaadi.com and her parents in India. Mr Dave's reconciliation with his wife ultimately failed, and Ms Patel did not immediately find any suitable partner.
Towards the end of 2012 the offender and Mr Dave arranged to undertake some further study together, enrolling in a course directed to enhancing their respective engineering qualifications. They continued to live together, also sharing other things, such as meals.
At some stage in early 2013 Mr Dave was put in touch with Ms Joshi, through the endeavours of their respective parents. The communication between them was on-line and via telephone or Skype. The offender became aware of Ms Joshi's existence through seeing content related to her on Facebook, but Mr Dave said that Ms Joshi was just a family friend (T810).
In early 2013 both the offender and Mr Dave planned to travel to India to see family. Unbeknownst to the offender, Mr Dave intended to meet Ms Joshi there. He and Ms Patel made joint travel arrangements and flew to India via Dubai. On arriving at the airport in India, the two went their separate ways; neither introduced the other to family members, or mentioned their shared travel arrangements.
During his stay in India Mr Dave met Ms Joshi and they decided to marry. It was arranged that she would shortly travel to Australia to marry him.
For the return flight to Sydney, both Mr Dave and Ms Patel arrived separately at the airport in Ahmedabad and, although the offender saw Mr Dave and called to him, he did not respond to her or acknowledge her until both had passed through Customs, leaving their respective families behind. Neither chose to tell family members about having a travelling companion (T814 - 815).
Ms Joshi accompanied Mr Dave to the airport, and the offender saw her there and recognised her from her photographs on Facebook.
Mr Dave and Ms Patel had a stopover in Dubai on the return journey, and took a hotel room together there. Both were drinking alcohol and they were sexually intimate. As a result, Ms Patel fell pregnant.
The pair arrived in Sydney on 20 February 2013. They returned to their shared bedroom and life working at the airport, and studying together for the course they were both undertaking. Having failed an important exam for the course before leaving for India, the pair were studying hard with the aim of again taking the exam (T827).
By mid-March 2013 the offender had discovered her pregnancy. She immediately told Mr Dave. She decided to terminate the pregnancy (T833- 834).
In the midst of this, and a couple of days prior to the termination (T844:32) Mr Dave told Ms Patel about Ms Joshi and his plans to marry her (T845:01).
On 20 March 2013 Ms Patel went to a medical facility and had a termination procedure. Mr Dave accompanied her. Ms Patel was extremely distressed by the experience (T835) and became depressed (T842).
Mr Dave, who was expecting Ms Joshi to shortly arrive from India, began to look for suitable accommodation for he and Ms Joshi (T847). He also arranged to take possession of the black Peugeot, which he intended for Ms Joshi's use. He was to pay Ms Patel for her half share of the car. Whether he paid all of the money he owed or only part of it I am unable to determine with any degree of certainty (T441; T853). With Mr Dave to help her, Ms Patel bought a Toyota Yaris for her use on 3 July 2013.
On 2 May 2013 the offender sent a text message to Mr Dave, "Can't take anymore tat m loosing u. i feel so loanly" (Ex. K).
At around that time she was assisting Mr Dave to find an apartment for him to rent in readiness for Ms Joshi's arrival (T856). In early June 2013 Ms Patel and Mr Dave found a suitable apartment for Mr Dave and Ms Joshi, in Bestic Street at Kyeemagh (T862). The two bedroom apartment was near Botany Bay and had some water views. To assist Mr Dave, the offender applied for the tenancy with him, and the two signed the lease as joint tenants (Ex. M). The offender helped Mr Dave to move into the apartment, allowing him to take crockery of hers from Rockdale (T863). She allowed her own tenancy at Rockdale to lapse in early June (T868).
The offender continued to feel distressed about the termination (T858).
The offender was taken ill soon after the Bestic Street tenancy was taken, and she was admitted to hospital for treatment in mid-June 2013. It was Mr Dave whom the offender called for help, and he drove her to hospital (T864). He visited her daily during the period of her admission, and kept in regular contact by telephone and text message. When she was discharged, Ms Patel returned not to her Rockdale share accommodation, but to the Bestic St apartment with Mr Dave. He cared for her there during her recuperation. She needed assistance with things such as walking to the toilet (T867). She slept in the only bed; he sometimes slept there beside her and sometimes on the lounge (T875).
Ms Joshi was due to arrive in Sydney on the morning of 5 July 2013. The offender moved from Bestic Street that same morning. Mr Dave had said to her "when Purvi come you go" (T869:04). He asked her to leave a sofa that she had bought as he liked it (T871). She also left the black Peugeot behind, for Ms Joshi's use (T873-874).
Ms Patel was not happy with the way she was asked to leave Bestic Street prior to the arrival of Ms Joshi, or with Mr Dave's reluctance to introduce her to Ms Joshi (T877:47).
The offender took her things to the apartment of a friend of Mr Dave's, who had also become her friend, Trusha Bhaat. Ms Patel and Ms Bhatt shared a bedroom in the Parramatta apartment. Vinai Tiwari also lived at the apartment, occupying the other bedroom.
Although Ms Patel did not see Mr Dave after leaving the Bestic Street apartment, she kept in contact with him via telephone and text message (Exs. K & L).
On 24 July 2013 the offender spoke with Mr Dave on the telephone. She raised with him the subject of her and Ms Bhatt's flatmate, Vinai Tiwari who, she complained, was inappropriately sending her text messages (T340:48) and "liked" her in a romantic way. Whilst Ms Patel may well have perceived that there was a genuine problem with Mr Tiwari, her complaint is likely to have been a stratagem to gain Mr Dave's attention. Mr Dave suggested that she come to Bestic Street to talk to him, and she drove there straight away.
It was at Bestic Street that day that the offender met Ms Joshi, when she came home from university.
In the flat, Mr Dave showed Ms Patel around as if she had not previously been there. She felt confused by that (T896 - 897). Later the three went to Parramatta to see Ms Bhatt. When it was known Ms Bhatt did not intend to stay at Parramatta that night the offender told Mr Dave she could not stay alone with Mr Tiwari. According to Mr Dave, she was crying and distressed. She accompanied Mr Dave and Ms Joshi back to Bestic Street where all three spent the night. Ms Patel slept on the lounge.
The next day all three went together to Parramatta where they met up with Ms Bhatt and went shopping at Westfield. Ms Patel said that she purchased a "cream jumper coat" (T903:32) and Ms Joshi bought some shoes. Afterwards, the four went to Bestic Street, cooked dinner, and spent the night. They separated the next morning, and Ms Patel went to work.
On Saturday 27 July 2013 Ms Patel and Ms Bhatt met up with Mr Dave and Ms Joshi at Flemington Markets. Mr Dave wished to buy a double bed for his or Ms Joshi's family to have the use of when in Australia for his and Ms Joshi's wedding, and he enlisted the offender to negotiate a price for it (T907).
Having purchased the bed the group returned to the Bestic Street apartment. The women cooked dinner and, after eating, Mr Dave went to get some sleep prior to leaving for his night shift at the airport. It was intended that the offender and Ms Bhatt would spend the night at Bestic Street. Mr Dave later left and the three women went to sleep.
The offender claimed in her evidence that she was woken from her sleep by Ms Joshi, who confronted her about her relationship with Mr Dave. Ms Patel claimed that Ms Joshi made a comment about a coat that the offender had bought during the shopping trip to Parramatta, asserting that Mr Dave had purchased the coat, and then produced the offender's mobile telephone, demanding to know about the calls and messages between she and Mr Dave.
I am not able to accept the offender's evidence about this aspect of the matter.
There was no evidence that Mr Dave had purchased a coat for the offender at Parramatta.
The offender said in evidence that she bought herself a "jumper coat"(T903:32). She specifically said when asked that Niraj had not bought anything (T903:38). It was only later, when asked in evidence in chief about Ms Joshi waking her from sleep, that she asserted that Mr Dave had made the purchase (T915:36). When she gave that evidence, the offender appeared to have only recalled when prompted by the question that Mr Dave was in any way involved in the purchase of the cream coat.
Neither Ms Bhatt nor Mr Dave were asked about a coat in evidence, although both were asked in cross-examination about the purchase of a "jumper" by Mr Dave for the offender (Mr Dave at T433:05 and Ms Bhatt at T558:18). Neither recalled it.
Given the secrecy with which Mr Dave had treated his relationship with the offender and his stated wish to keep it from Ms Joshi, it is unlikely that he would have openly bought the offender an item of clothing at a time when Ms Joshi was present (T558:27; T903:26). The purchase by a man of clothing for a woman is an intimate act that I do not accept Mr Dave would have made in front of his fiancée.
That in turn makes it improbable that witnessing such an act would have prompted Ms Joshi to examine the telephone of a woman she had only recently met, and confront her about the coat and the telephone. Since it is this supposed confrontation that underpins the offender's claims about Ms Joshi's demand for a meeting to discuss the offender and Mr Dave's relationship, that such a demand was made, also seems improbable.
There were other aspects of the offender's account of the confrontation over the purchase of the coat that contributed to its air of unlikelihood.
The offender claimed that Ms Joshi had taken her mobile telephone from where it had been left on (not in) her handbag, and read all of the messages. She asserted that the handset did not have a passcode at the time (T918:24). When the telephone was seized by police only days later, the phone was passcode protected. Perhaps the offender added a passcode in those few days, but since the damage was done on the offender's account, it would seem to have been an utterly futile gesture. It is more likely that it was always passcode protected, making it impossible for Ms Joshi to see the phone's records.
On the offender's evidence, with phone in hand Ms Joshi demanded to know "What is going between you and Niraj" and, when the offender paused before responding, said, "Tell me everything or I will not give you your passport" (T919:28). For Ms Joshi to have made such a threat she must have gone to the offender's handbag and taken her telephone; gone into the call and text history on the phone and, having gone through it; decided to question the offender, rather than her fiancé, about the communications; considered the possibility that the offender would not answer her questions; and, even though she had not previously needed to open the offender's handbag to get the phone, she must have then decided to look in the bag for an item of property to hold hostage as a persuasive measure to ensure the offender would give her the information she was seeking.
This purported sequence of events seems too complex to be realistic. It also assumes that Ms Patel would regard her passport as so valuable that she would confess to a relationship with a man to whom she was not married, something that on her evidence she regarded as shameful (T753:05; T843:29); and would go further and confess to having had an abortion, an event so distressing to her that she could not discuss it even with her sister (T842 - 843).
That the discovery by Ms Joshi of the telephone traffic between the offender and Mr Dave would lead to such confessions must of itself be unlikely, given that, in this Court, Ms Patel repeatedly denied that the messages demonstrated anything other than close friendship. Even messages professing love between the two she explained as nothing more than "a friendly term" (T776:21). If Ms Patel could maintain her insistence on oath that the messages exchanged after the end of the sexual intimacy between she and Mr Dave were demonstrative of nothing more than friendship, it might be expected she could have made the same assertions to Ms Joshi.
Instead, despite the ease with which Ms Patel discounted the significance of the messages in evidence, to Ms Joshi she "said her everything" (T920:20).
Whilst it is accepted that a passport is a document of some significance, and perhaps more so when it is the first passport issued from one's new nation, it is readily replaced. Whether Ms Patel would have rated the return of her passport more highly than she would the necessity of maintaining her best friend's secret (in circumstances where he was confident of her discretion - T434:34) seems unlikely. That she would carry with her in her handbag a document she valued so highly is also unlikely.
Although the offender relies upon the fact that her passport was found in the Bestic Street apartment after Ms Joshi's death (T409) it appears that she may have left items of property there on her departure on 5 July 2013. The offender referred in evidence (T877:10) to her belief that she had left all of her watches at the apartment, and Mr Dave deposed that she had moved "most of her stuff" out (T309:22). Since it may be that her passport was another item left behind, I do not regard evidence of its discovery there in August 2013 as necessarily supportive of her claims about Ms Joshi having confiscated it.
Nothing in Ms Bhatt's evidence of this time spent at the Bestic Street apartment, or Mr Dave's, points to there having been an emotional confrontation between Ms Joshi and the offender. Neither noticed anything unusual in their interaction. Since the offender herself refers to Ms Joshi as being emotional and angry (T921) it is reasonable to expect that Ms Bhatt or Mr Dave would have seen at least some sign of tension or distress if it existed. They did not.
Given her closeness to Mr Dave, and the significance to him of Ms Joshi's supposed discovery of the detail of his relationship with the offender, it is inconceivable that the offender would not have told him about this discussion, had it transpired as the offender asserted.
On that analysis, I am unable to accept - even on the balance of probabilities - that a confrontation with Ms Joshi occurred as the offender deposed. That being the conclusion of the Court, the basis for the fatal encounter between the two women as it was asserted to have occurred by the offender falls away.
The offender's account of that encounter is, in any event, implausible. It is too easy for the living, who have a voice, to blame the dead, who have been forever denied one.
Ms Patel asserted that, having done as Ms Joshi required and told her everything about her relationship with Mr Dave, Ms Joshi continued to hold her passport, now against a requirement that the offender provide proof of the termination she had undergone, with Ms Joshi insisting on seeing a receipt or clinic papers (T922:38). Although the offender offered to meet with Ms Joshi in the middle of the day, the offender claimed that Ms Joshi insisted the meeting take place prior to the offender beginning her next shift (T923:20). That claim defies common sense.
Ms Joshi was a student and must have had a reasonable amount of free time. That she would insist upon a meeting at a time shortly before 4am, necessitating her interrupting her sleep and getting out of bed on a cold winter night, is very unlikely. Whilst the evidence was that Mr Dave was due to finish his run of nights shifts, and would ordinarily be at Bestic Street through the day in any event, the two women could easily have met elsewhere in daylight hours, without attracting Mr Dave's attention. I do not accept that such a meeting would have been arranged for the early hours of the morning.
Had any meeting been agreed, there would surely have been some telephone traffic between the two other than a text message about some rice (Ex. AH) and one telephone call (Ex.L). There was not.
I do not accept that the offender went to the Bestic Street apartment on 30 July 2013 for a pre-arranged meeting with Ms Joshi. I have concluded instead that she went there to effect her own plan.
The Crown contends (at [11] of its written submissions, "CWS") that the offender made a decision to kill Ms Joshi on the night of Saturday 27 July 2013, after the trip to Flemington Markets when she had been asked to negotiate the price of a bed for the use of Mr Dave and Ms Joshi's wedding guests. At that time the offender was sharing a bedroom and bed with Ms Bhatt in Parramatta, both to save money and because she had nowhere else to live after leaving the Bestic Street apartment on 5 July 2013.
Whilst I accept that her own circumstances, in contrast to that of Mr Dave and Ms Joshi, must have been both distressing and - having regard to the way Mr Dave had conducted himself - galling, there is insufficient evidence to allow the Court to conclude that the offender decided at that point to kill Ms Joshi.
Meeting Ms Joshi on 24 July 2013 and the subsequent contact the offender had with Mr Dave and Ms Joshi must have crystallised for the offender the dramatic change in her own circumstances. Whilst nothing done by Ms Joshi was responsible for this, she being entirely innocent of any wrongdoing or insensitivity towards the offender, Ms Joshi became the focus of the offender's resentment. She had unknowingly walked into a psychodrama not of her making, but for which Niraj Dave and the offender were responsible. Nevertheless, the offender must have regarded Ms Joshi as to blame for the loss of the few things in her lonely life that had hitherto to made it bearable.
There was a significant issue at the offender's trial as to the nature of her relationship with Niraj Dave and it is relevant to the question of any motive the offender may have had to kill Ms Joshi.
The offender contended that she had initially harboured some romantic intent towards Mr Dave but, having quickly realised that marriage was not a desirable outcome, she had thereafter enjoyed nothing more than a close friendship with him. Mr Dave deposed that, despite having met Ms Patel through a marital web-site, he had never discussed marriage with her (T321:26). He too maintained that their relationship, despite their occasional sexual intimacy, was one of friendship.
The Crown argues (CWS [6]) that the offender "loved" Mr Dave between November 2011 and July 2013. The offender dismisses that word, love, as "too simplistic" to properly characterise the complex and evolving feelings the offender had for Mr Dave (at [15] of the written submissions, "OWS").
It is not within the province of this Court to determine the nature of romantic love as felt by one individual for another; that is something best left to poets. I accept, however, the offender's submission that it is a complex emotion not readily defined, and it is not necessarily properly descriptive of her feelings for Mr Dave.
Despite the insistence of each in evidence, I do not accept that the relationship between the offender and Mr Dave was simply one of friendship. I do not accept either as truthful witnesses in that regard. Their relationship was much deeper than friendship, and much more important to each.
Regardless of the nature and extent of the sexual relationship between the offender and Mr Dave, prior to Ms Joshi's arrival in Australia, Mr Dave and the offender had a very close and mutually dependent relationship. Each needed and cared for the other and, for each, the other was the most important person in day to day life (T435:41 - 44; T458:40; T855:06). They lived together for eighteen months in the cramped confines of a single bedroom; they bought a car jointly; and, when the time came to find a new apartment, they searched for and leased it together. They paid bills for each other or used internet or other communications facilities belonging to each other (T439:49; T440:29). Such social activity as they seemed to have - attending an occasional Indian movie or Indian restaurant - was enjoyed together. They shopped for one another and cooked for each other (T785; T839:30). Each discussed significant matters with the other, to the exclusion of others (T770:20 for example). They set life goals together and studied and worked together towards those goals. When apart, they telephoned each other or exchanged text messages constantly (Ex K). Such communications as there is evidence of, used language illustrative of love, need, and mutual dependence (Ex K).
Certainly for the offender, her relationship with Mr Dave was critical to such happiness as she had. She was a stranger in a strange land. Her marriage had failed. She had entered into a relationship which was contrary to the cultural and moral norms of her family and her culture. She had undergone the tragedy of a termination and, for all her claims in evidence that Mr Dave meant nothing to her, he was of critical importance. Ms Joshi's arrival in Australia and in Mr Dave's life changed all of that.
Because of Ms Joshi's arrival Ms Patel had had to leave a bright and sunny apartment (Ex. A) near the waterfront at Botany Bay, where she enjoyed the use of a big bed in an airy room with water views, and the company of the man who had been the most significant figure in her life for the last eighteen or so months. She had been obliged to hand over the keys to her rather chic black Peugeot convertible, a car in which she had obviously taken pride (Ex 9). She gave Mr Dave the Peugeot keys, knowing that the car, paid for at least to some extent, if not majority owned by her, was to be given to Ms Joshi. The replacement car for the offender was a small Toyota Yaris. Ms Patel was deprived of the constant company and support of her principal friend and only real supporter in Australia, knowing that his attentions were now focused on Ms Joshi.
In a country where she had no family, no support network, and no real friends, the offender had lost her marriage, failed a vital exam critical to obtaining her "dream job", lost a baby because she was unmarried, and now faced losing Niraj Dave.
Although it was irrational, all the loss and grief of the termination, the failure to find a suitable marriage partner, be it Mr Dave or another person, the ending of her close relationship with Mr Dave, the loss of her home and car, and the resentment those losses had generated, came to be focused by the offender on Ms Joshi. Her pain and resentment led to the offender's decision to kill Ms Joshi, an act by which she must have thought she would regain at least some of what she had lost.
In the early hours of 30 July 2013 Trusha Bhatt awoke to find the offender kneeling before a small shrine in prayer (T546). She had never before seen her do that. It was around 2.30 am. I am satisfied that it was then that the offender resolved to remove Ms Joshi from Mr Dave's and her life.
At 2.38 am the offender drove her Toyota Yaris out of the car park of the unit block in Parramatta. She went not to the airport but to Kyeemagh. At 3.16am she was at a service station on the corner of Bestic Street and General Holmes Drive. In an act of normality that is both startling and troubling given what was soon to come, she purchased some petrol and some coffee and then, at 3.17am, drove towards Mr Dave's apartment. Arriving there, Ms Patel did not park in front of or close to the apartment building. At 3.32am a security camera at 1 The Grande Parade caught the image of a person, the offender, walking from the direction of General Holmes Drive towards 167 Bestic Street (Ex. AA, AB; Ex. 1; T660 - 661).
Had the offender been attending an arranged meeting with Ms Joshi as she claimed, she would, in common with any other woman, have parked as close as possible to her destination to avoid the necessity of walking alone down a dark street in the early hours of the morning. That she parked at some distance, even though there were parking spaces available close to the building (T661:49) is indicative of the malignancy of her purpose in attending at such an hour of the morning.
At 4.14am the same security camera at 1 The Grande Parade filmed the offender walking away from 167 Bestic Street in the direction of General Holmes Drive.
What happened between 3.32am and 4.14am that morning will in all likelihood never be fully known. Ms Joshi did not survive to give an account of the events and I, like the jury, do not accept any aspect of the offender's account.
What can be said beyond reasonable doubt is this.
With no previous arrangement to meet Ms Joshi, the offender went to unit 9 at 167 Bestic Street and gained entry to the apartment. How she gained entry is not established on the evidence, although a forceful break in is excluded. The offender had a knife in her possession; it cannot be determined whether she brought the knife with her or picked up a knife once inside the apartment.
There was no dispute about the offender's relationship with Mr Dave, or about a receipt for the termination the offender had undergone, contrary to the offender's evidence. Ms Joshi did not say at any stage, "I'm not going to spare anybody" (T966.60); tellingly, a phrase the offender also put into the mouth of another individual, in different circumstances.
There followed a violent struggle between Ms Patel and Ms Joshi in the bedroom of the apartment. Since Ms Joshi was found by Mr Dave and thereafter by police officers lying on the floor between her bed and the window, half wrapped in the doona that had been on the bed, and wearing her nightclothes, it is likely that the offender went into the bedroom whilst Ms Joshi was sleeping and attacked her as she lay in bed. The evidence does not, however, allow that conclusion to be drawn beyond reasonable doubt.
It does establish that Ms Joshi was awake, or woke at some point before the offender's attack upon her, or as that attack commenced. She fought for her life, sustaining defence wounds to both hands in the process. The offender used her hands to both apply pressure to Ms Joshi's throat, and to occlude her mouth and nose. This combination of significant compression to the neck (T268:13 - 17) and smothering (T205:13 - 34) led to death. At about the time of death the offender stabbed Ms Joshi twice with the knife she had in her possession.
In this fatal attack, the offender inflicted a number of injuries to Ms Joshi, being: 1. superficial injuries to the front and back of the fingers on both hands; 2. petechial haemorrhages around and in the eyes, to the scalp, and in the soft tissue of the lower half of the face; 3. bruising and abrasions around the mouth and nose; 4. bruising and abrasions to the neck and within the neck muscles; 5. a fracture to the hyoid bone; 6. a relatively shallow stab wound penetrating about 15 mm into the muscles of the abdomen; and 7. a deep stab wound penetrating 100mm into the abdomen, and tracking through the right lobe of the liver, the duodenum and the inferior vena cava.
The offender was not injured at all during her attack upon Ms Joshi.
When he got home later that morning Mr Dave saw that Ms Joshi's handbag had been overturned and some baskets in the spare bedroom had been moved. Having rejected the offender's evidence about the confiscation by Ms Joshi of her passport, and her subsequent search for it, it seems most likely that, prior to leaving, Ms Patel moved items in an attempt to make it appear as if there had been a break-in. Her later comment to Mr Dave at the police station seems intended to suggest as much (p.9, Ex. N). However, I am unable to make that finding beyond reasonable doubt.
Ms Patel left the apartment, leaving her victim dying or dead on the bedroom floor. She walked along Bestic Street at 4.14 am, returning to her car. She then drove to the airport, arriving at the car park gate at Customs House at 4.22am. Despite the cold of a late July night, the knee length cream coat that she had been wearing when she left Campbell Street Parramatta, and wearing when she stopped for fuel, could not be seen (Exs. AA & AB). The offender went up to her work space at about 4.28am.
The SNP staff members who spoke with Ms Patel after her arrival saw no sign of anything abnormal in her presentation; she seemed as she always did, and went about her duties in an ordinary way. Her collected demeanour gives further support to the Court's conclusion that what had just occurred in Bestic Street was a planned and intended event, and not one that had arisen spontaneously in shocking circumstances.
The offender telephoned Mr Dave at 4.43am and 5.27am and spoke to him.
At about 5.52am Ms Patel left Customs House and went to her car. She was not carrying anything other than a set of keys and her security access card. She wore only black trousers and a white shirt with sleeves rolled up. Her cream coat was nowhere to be seen. She drove out of the airport car park.
She drove back into the car park at 6.19am and returned to her office minutes later. On her return she was carrying her cream coloured coat.
Where Ms Patel had been in the period between 5.54 and 6.19 is not established on the evidence. It seems very likely that she had accidentally left her coat somewhere, quite probably in the Bestic Street apartment, and went there to retrieve it. In the absence of any further evidence this will also remain an aspect of the matter that cannot be fully known.
At 6.33am Mr Dave telephoned Ms Joshi (T370:06). The call went unanswered. Soon after, he left work for Bestic Street.
When he entered the apartment he saw items from Ms Joshi's handbag scattered about the floor. He began calling out to her, and seconds later found her lying on the bedroom floor. Her face was black and a knife was protruding from her abdomen (T372 - 373). At 7.11am he telephoned Triple 0.
Two police officers arrived at the apartment soon after. They tried to revive Ms Joshi, but the stage when that might have been possible had long passed.
The police investigation into the murder commenced, and quickly focused on the offender.
For her part, as is perhaps not unnatural, the offender did everything she could to deflect the police from discovering her responsibility for the murder. Despite her obvious facility for falsehood, demonstrated in her recorded statement about the alleged stabbing of 1 August 2013 (Ex. Q), in her interview following arrest (Ex AG), and in her evidence in this Court, the investigating police continued to focus on the offender.
Notwithstanding her efforts, the police rapidly gathered the evidence upon which to charge the offender with the murder of Ms Joshi, and she was arrested and charged on 14 August 2013.

The Gravity of the Crime

All murders are serious and, to anyone other than a criminal lawyer, the task of seeking to "rate" the seriousness of a particular crime may well seem to be an esoteric and perhaps even a repugnant exercise. Why, after all, should the killing of one person be assessed as more or less serious than the killing of another person in different circumstances? Nevertheless, the Court is obliged to make just such an assessment of the objective gravity of a crime: R v Dodd (1991) 57 A Crim R 349. At [354] of that decision it was noted that, "Each crime […] has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category."
The Crown argues that the offender's crime, whilst falling short of requiring the imposition of a life sentence pursuant to s.61(1) of the Crimes (Sentencing Procedure) Act 1999, is a very grave example of a crime of its type, falling well above the mid range of objective seriousness. Counsel for Ms Patel contends that the offence is one of "passion and rage in the moment" (OWS at [50]) and is deserving of a sentence of "significantly less than twenty years" (at [39] OWS).
I have concluded that this was not a crime committed spontaneously in the context of a discussion about the offender's relationship with Mr Dave. There was a degree of planning, even if that planning consisted of no more than a decision made in the early hours of the morning of 30 July 2013 at Campbell Street, and then carried out without delay. I do not accept the Crown's submission (at [23] CWS) that there was "considerable pre-planning"; rather, I have concluded that the planning consisted of a resolution to carry out the crime, and to do it before Mr Dave finished his shift on 30 July 2013, thereafter having a period of days off work.
That conclusion, and the determination and force with which Ms Joshi was killed, dictate a finding that the offender acted with an intention to kill. Killing with that intention is ordinarily, although not definitively, regarded as more serious than killing without such an intention: Tran, Hoai Vinh v R [2011] NSWCCA 116 at [39]; Aytugrul v R [2015] NSWCCA 139 at [23]. In this matter, the intention to kill operates in the ordinary way, and makes the crime more serious.
Another feature which elevates the gravity of the offender's crime is that this brutal attack occurred in what should have been the safety and security of Ms Joshi's home, a home she had obviously taken some pleasure in the preceding days in arranging and decorating with her future husband.
Although Ms Joshi's death was caused by blunt force applied by the offender with her hands, a weapon was used, a feature of the offence that, whilst very common in crimes of murder is not inherent, and thus makes the offence (marginally) more serious. Of greater importance than the use of the knife however, is the force used by the offender, and the struggle in which she engaged to carry out her lethal purpose. Having regard to the evidence of Dr Bailey, it is certain that Ms Joshi did everything she could to fight off the offender. In the early hours of the morning, not long woken from sleep, she must have felt both overwhelmed with confusion as to what was happening and why, and overcome with terror. At some point she must have known she was fighting for her life, and felt it ebbing away. For a young woman to travel to Australia with great hope and excitement for her new life, to die in a strange land in this violent way with only her assailant for company is horrible.
The weight of Ms Joshi's death, whilst a blow to the community as a whole, is felt most keenly by those who loved her. The Court heard from Dr and Mrs Joshi, Purvi Joshi's parents, both in evidence at trial, and through their victim impact statement read on sentence. For Dr and Mrs Joshi, the loss is unbearable, and each has had thoughts of suicide following their daughter's murder. They were a close family, and her parents have been terribly affected.
Dr and Mrs Joshi called in their victim impact statement for the Court to impose the maximum sentence on Ms Patel. Whilst I understand entirely the origins of their desire to see the offender punished to the limit of the law, I have in compliance with s.28(4) of the Crimes (Sentencing Procedure) Act 1999 set those calls aside. In truth, no sentence this Court could impose, not even life imprisonment, can make good the loss of a loved one to that person's family and friends, or alleviate their pain. I have treated the victim impact statement as providing direct and very personal evidence of the harm done to the community when one of its members is murdered. The Court can do no more than to extend its deepest sympathies to Dr and Mrs Joshi, acknowledging that the sentence to be imposed upon the offender is no measure of the value of the life of Ms Joshi.
I do not regard the offender's conduct after the murder as operating to make the offence worse. The offender's efforts to conceal her crime were extreme, and included stabbing herself, but this conduct cannot retrospectively increase the gravity of the offence. It is not unnatural for an offender to wish to conceal a crime, and to take steps to throw any police investigation off the trail. It was open to the police to charge Ms Patel with a public mischief type offence for her false claims about the stabbing; she was not so charged. It is not for this Court to punish the offender for a crime with which she has not been charged.

Offender's Moral Culpability

The offender's moral culpability for the murder must also be assessed as part of the consideration of the overall gravity of the crime: McLaren v R [2012] NSWCCA 284 at [29]; Ngati v R [2014] NSWCCA 125 at [40] - [46].
Having concluded that the offender planned to kill Ms Joshi, and set out to execute her plan, her moral culpability for this brutal attack must be high. However, I consider it to be mitigated to a degree by the offender's personal circumstances at the time.
On sentence the offender tendered and relied upon evidence from Dr Richard Furst, a forensic psychiatrist (Ex S1). Dr Furst examined Ms Patel on 3 September 2015 for the purpose of preparing a report to be tendered on sentence. He assessed her currently as being in the severe range for clinical depression. Whilst her present circumstances are likely to have contributed to her severe depression, I accept Dr Furst's opinion that it is "more likely than not" that the offender was depressed and anxious at the time of the offence, and in the period leading up to it (p.7, Ex S1).
(The offender did not give evidence on sentence and, accordingly, some caution must attach to a report dependent to some extent upon the history given to Dr Furst by the offender, a history which could not be tested in cross-examination: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369. Since Dr Furst's opinion is precisely what even a lay person might expect of a person in the offender's position, I accept Dr Furst's conclusions. I note that the doctor was not required by the Crown for cross-examination).
There was uncontradicted evidence before the Court of a number of setbacks that the offender suffered in the period leading up to the murder of Ms Joshi.
Although marriage is highly valued in Indian culture, Ms Patel's 2008 marriage had failed. That she was unmarried at 30 years of age was a source of shame to her. She had met Niraj Dave in 2011 with a view to matrimony and, whatever the reason for it may have been, there appears to have been no prospect of marriage between them after - at the latest - 2012. In addition, despite her professional qualifications and experience in India, the offender had not been able to gain employment in Australia consistent with her skills and she was working in a capacity that, to a professional woman of her considerable intelligence, must have seemed relatively menial, and felt unsatisfying. Compounding that, she had failed a critical examination which was necessary to her in pursuing better and more fulfilling work.
Her return to sexual intimacy with Mr Dave without any future attaching to it had left her feeling despondent, and it is clear that the termination of the pregnancy to him caused her considerable personal anguish. To then be faced with the loss of her only real friend in Australia, with all that that loss entailed, must have had a significant impact on her state of mind. In the weeks and particularly the last few days before the offender murdered Ms Joshi, she saw the home that she had helped to find and lease set up for another woman, her car taken from her in readiness for its use by another woman, and her best friend and close companion distance himself as he established a new life with someone else.
It is likely that all of these events overwhelmed the usual calm and sober course of the offender's life, and she gave way to a degree to irrationality. Her crime is so far out of character as to be of itself some indication of just how irrational she had become. Her moral culpability for the murder is thus slightly less than it would otherwise have been.
Nevertheless, this a very serious example of murder.

The Offender's Subjective Case

In addition to the report of Dr Furst, the Court heard evidence from the offender's older sister, Professor Viralbahen Gnpatbhai Patel, and received documentary evidence as to the offender's academic and employment achievements, and her diminishing eyesight.
The offender was born in December 1982 and is almost 33 years of age. She was aged 30 at the time of the offence. She was born in Gujurat State in India to a family who valued hard work and education but were without the wealth to make tertiary education a straightforward matter. Ms Patel studied hard as a child and young woman and ultimately achieved tertiary qualifications, obtaining her Bachelor of Engineering in her home state. She was employed in her profession in India.
Having married a man her family regarded as suitable in 2008 the offender travelled to Australia. Although unable to gain employment in her field of expertise, she sought and obtained employment and, save for a period of some weeks in 2012, she remained employed until her arrest on 14 August 2014.
The offender's marriage broke down, and ended in 2010. Although she has no family in Australia and was alone here after the separation from her husband, the offender remained in Australia because the income she could earn here was superior to that which she could earn in India, and her family there was reliant to a degree on the money she regularly sent home.
She also fully maintained herself financially, whist saving money to pay for further education. Having met Mr Dave in 2011, Ms Patel embarked upon a course of advanced study in digital engineering, a privately operated course for which she paid herself. She studied and worked hard to support herself and her family. Her fairly uncongenial living conditions in the Bryant Street share accommodation was designed to save the money she needed for her own and her family's maintenance.
The offender has no criminal convictions in this jurisdiction or elsewhere and, having regard to her former good character, she is a person with a claim to a degree of leniency from the Court.
Since going into custody the offender has pursued her studies insofar as that is possible for a remand prisoner. She has undertaken a number of courses offered through TAFE NSW, together with a personal development course.
Although suffering from severe depression now, and probably at the time of the commission of the offence, she did not at any point choose to self-medicate, and she has no issues with either drug or alcohol abuse. That is to her credit.
In every respect other than her serious resort to violence upon a young woman innocent of any wrongdoing, the offender is a woman of impeccable and enterprising character.
Although I have concluded that the offender was not truthful in her evidence to the jury, and that together with her plea to the charge would not ordinarily allow for a conclusion that the offender is remorseful, I accept that she does regret Ms Josh's death. She gave evidence to that effect and, in that at least, I accept that she was honest. Her denial of the circumstances of Ms Joshi's death does not preclude regret for it.
Her prospects of rehabilitation must be very bright. She has in the past proven herself to be an industrious and law abiding person, who worked for the good of her family and her own educational advancement. It is very unlikely that she will ever again offend against the criminal law.
The offender's health is good other than the severe depression I have already referred to, and an ophthalmic condition from which she suffers (Ex. S4; T760). The latter condition involves a diagnosis of keratoconus resulting in irregular astigmatism and impaired vision that cannot be corrected with spectacles. The offender's sight will deteriorate, at an unknown rate (Ex. S4). Blindness is a possibility. There is some evidence that she is presently experiencing pain in her eyes, and further medical treatment will be required.
I accept that the offender's health, and particularly her deteriorating vision, is a feature which should properly ameliorate the sentence to be imposed. Serving a term of imprisonment is difficult enough for those with no health issues; having limited sight can only make a prisoner more vulnerable, and prison more onerous.
The offender's diminishing eyesight is likely to contribute to a degree of isolation in prison, and that will compound her isolation from her culture and her family.
Professor Patel told the Court in both her oral and written evidence that the prospect of family visits to the offender are limited. The costs of travel to Australia for those in receipt of ordinary wages in India is prohibitively high, and travel here is dependent in any event upon the issue of a visa. Neither the offender's brother nor her father have been able to secure a visa to date and, even if the funds could have been found, a visit would have been impossible without a visa. It is possible that Ms Patel will never see her parents again. She will see her siblings rarely if at all before her release from custody.
I accept that the offender's extreme isolation in this country will weigh very heavily upon her.
I have taken these features into account in determining the sentence to be imposed upon Ms Patel; I do not regard them as additionally dictating that there be a finding of special circumstances pursuant to s.44(2) of the Crimes (Sentencing Procedure) Act 1999, and I decline to make a finding of special circumstances.

Other sentencing considerations

In light of the conclusions I have reached as to the unlikelihood of the offender ever again transgressing against the criminal law, specific deterrence has no real role to play in the exercise of the sentencing discretion.
General deterrence remains of relevance although, given the causal link I have found between the offender's depression and irrational thinking at the time of the offence and the offence, its role is moderated without being entirely excluded.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 requires the Court to have regard to the manifold purposes that the imposition of sentence is required to serve. I have considered each of the matters set out in that provision.

SENTENCE

Manisha Patel, having on 1 July 2015 been convicted of the offence of murder, you are sentenced to a term of imprisonment of 24 years to date from 14 August 2013. There will be a non-parole period of 18 years imprisonment, which will expire on 13 August 2031. You will be eligible for release to parole on that date. The overall sentence will expire on 13 August 2037.

Amendments 22 September 2015 - Insertion of case: R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [114] 22 September 2015 - Correction of case spelling to R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 24 September 2015 - At [66], deletion of the word "nevertheless" before "she had". At [84], insertion of comma after "undergone" and semi colon after (T966.6) At [87], formatting correction. 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: 14 August 2024

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