R v Patel

Supreme Court of NSW|2018-05-18|Before: Lonergan J

Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2013/247888

Facts

Ms Joshi was born in Gujarat, India on 16 December 1984 and was 28 years old at the time of her death. The offender was born in Gujarat State, India on 8 December 1982 and was 30 years old at the time of Ms Joshi's death. Niraj Dave was born in Gujarat, on 7 July 1979 and was 34 years old at the time of Ms Joshi's death.
The offender married in India and moved to Australia in 2008 to live with her husband, Mr Patel. They separated in 2010 and she remained in Australia. In August or September 2011, she met Niraj Dave through an Indian matrimonial website called Shaadi.com, which was a website used by Indian nationals seeking prospective marriage partners. At that time, Mr Dave was living in Australia working for SNP Security at Sydney Airport. He was married, but separated from his wife, Ektar Acharya, who lived in India.
In about September or October 2011, a sexual relationship began between the offender and Mr Dave. In November 2011, Mr Dave moved into the offender's unit at Bryant St, Rockdale, shared her bedroom and paid half the rent.
The sexual contact between the offender and Mr Dave lessened in 2012, however they still shared a bedroom at the flat in Rockdale, shared expenses and meals, and remained close.
The offender occasionally contacted men through Shaadi.com to look for a husband during 2012 and 2013.
In July to September 2012, the offender travelled to India to spend time with her family. Around this time, Mr Dave was introduced over the internet to Ms Joshi, who was living in India. Ms Joshi had been previously unhappily married and had separated. After that contact, Mr Dave's parents met Ms Joshi's parents in India with a view to determining whether a marriage between them would be suitable. Online and telephone contact between Mr Dave and Ms Joshi continued.
Mr Dave did not share with the offender his developing relationship with Ms Joshi. He told the offender that he was speaking with his ex-wife Ekta and that he was considering reuniting with her. Her, being his ex-wife Ekta.
In January 2013, both the offender and Mr Dave travelled to India on the same flight. Whilst they were in India, they had no contact with each other either by phone or by text.
Unbeknownst to the offender, Mr Dave actually spent a proportion of his time in India in January 2013 getting to know Ms Joshi. In that time, Ms Joshi and Mr Dave decided they would marry. During the flight back to Sydney, they stopped over in Dubai where the offender and Mr Dave drank alcohol, shared a hotel room and had sexual intercourse.
On return to Sydney, the offender and Mr Dave resumed living together at the unit in Bryant St, Rockdale. They had also both returned to study at the CCNA course, which was a computer network engineering course, so that they could obtain work in that industry.
In early March 2013, the offender discovered that she was pregnant and told Mr Dave. There was a decision made to terminate the pregnancy. The termination took place on 20 March 2013. Mr Dave attended both the GP appointment at which the pregnancy was confirmed as well as driving the offender to the premises in Surry Hills for the termination. The offender was very distressed by the termination. A couple of days prior to the termination, Mr Dave told the offender about Ms Joshi and his plans to marry Ms Joshi.
On 20 May 2013, Mr Dave moved into Unit 9 of 167 Bestic St, Kyeemagh. The offender assisted him in securing this property by providing a wage slip and signing the lease as co-tenant. She also stayed there from time to time. There was no plan for the offender to live at the unit with Mr Dave, however she developed a gynaecological cyst and infection which required surgical removal in June 2013 and following her discharge from hospital, she stayed at the unit with Mr Dave to recuperate.
In October 2012, the offender and Mr Dave had jointly purchased a black Peugeot convertible. Some time before Ms Joshi's arrival, it was agreed that Mr Dave would purchase the offender's share in that car. On 3 July 2013, the offender purchased a Toyota Yaris for her to travel from Parramatta to Sydney Airport where she had recently obtained employment at SNP Security, the same place Mr Dave worked.

Arrival of Ms Joshi

Ms Joshi told Mr Dave that she wanted to be in Sydney for his birthday on 7 July and would be arriving on 5 July. On the day of Ms Joshi's arrival, the offender left the unit at Bestic Street, and moved into 37/3 Campbell Street, Parramatta where she shared a bedroom with Ms Bhatt. A male person by the name of Vinai Tiwari lived in the other bedroom.
Ms Joshi arrived that evening and commenced living at the Bestic Street unit with Mr Dave. She also began studying English at CQ University in Kent Street, Sydney.
Mr Dave did not tell Ms Joshi that he had had a sexual relationship with the offender, or that he had shared accommodation with her for 18 months.
The offender did not see Mr Dave again until 24 July 2013, although there was some telephone contact.
The offender first met Ms Joshi on 24 July 2013.
On 25 July, the offender and Ms Bhatt, Mr Dave and Ms Joshi all went shopping in Westfield at Parramatta. Mr Dave paid for a cream overcoat for the offender. The offender and Ms Bhatt stayed at the Bestic Street unit that night.
The offender, Ms Bhatt, Mr Dave and Ms Joshi spent time together on Saturday 27 July at Flemington Markets. The offender and Ms Bhatt slept the night at the Bestic Street unit. Mr Dave put together a bed that had been purchased for the guest room, and Ms Bhatt and the offender shared that bed.
At about 10pm this night, Mr Dave went to work. It was the defence case that the offender got out of bed and went to sleep in the lounge room on the sofa and left her handbag which contained various items including her phone and passport near the sofa and that early the next morning, the offender was woken by Ms Joshi (while Mr Dave was still at work and Ms Bhatt was asleep). She was holding the offender's phone and saying things to her about the purchase of the coat when they were shopping, and asking "What's going on between you and Niraj?" The defence case was that Ms Joshi said, "Tell me everything or I will not give you your passport".
The offender claims to have then tried to placate Ms Joshi, insisting that there was nothing between her and Mr Dave, but disclosing that "something happened" in Dubai and that she had become pregnant and had had a termination of the pregnancy. The defence case was that this then led to Ms Joshi telling the offender to bring the papers from the clinic where the termination occurred, otherwise she would not return the passport.
It was also the defence case that Ms Joshi made a plan for her to come to the unit on her way to work when Mr Dave would still be at work on night shift and told her not to tell anyone about their discussions. None of this was disclosed to Mr Dave.
I pause here to observe that I have considerable reservations in accepting the offender's version of events. I accept the Crown's submission that the offender was a proven and inveterate liar. The offender lied many, many times to authorities and others. These lies included the construction of an elaborate hoax on 1 August 2013 when the offender deliberately stabbed herself and claimed that she had been attacked by masked men. I will return to the issue of the offender's credibility later in these remarks.
The offender and Ms Bhatt returned to the unit at Campbell Street, Parramatta and spent Monday 29 July there.
Ms Joshi went to university and then spent the evening of 29 July having dinner with Mr Dave. She spoke to her parents for a short period that night. Mr Dave left at 10.20pm to go to work. Ms Joshi's parents recollected hearing him in the background during their telephone conversation with their daughter, saying he was soon to leave for work.
The offender left her apartment building in Parramatta in her car at about 2.38am. She was due at work at the airport at 4am. At 3.19am, she stopped at a 7-Eleven service station on West Botany Street and refuelled her vehicle, and bought a coffee. At 3.24am, she left the service station, turning left into Bestic Street and drove in an easterly direction. These timings and events are corroborated by CCTV images and film.
At 3.32am, CCTV from a neighbouring house shows a person moving towards 167 Bestic Street on the southern footpath of Bestic Street from the direction of General Holmes Drive. That person turned right into 167 Bestic Street and went out of view. That person was the offender.
The offender went to Unit 9 of 167 Bestic Street. The manner in which she gained access to that unit I am unable to determine due to the absence of any reliable evidence on that issue.
The reason why she went to the unit at that time is unknown, again due to the absence of any reliable evidence on that issue.
The offender knew that Niraj Dave would be at work.
Whilst the offender was inside the unit, there was an altercation between the offender and Ms Joshi.
The reason for the altercation, how it began, who instigated it, and what was involved and in what order certain injuries were inflicted upon Ms Joshi are issues I am unable to resolve due to the absence of reliable evidence.
During the altercation, a knife was held by Ms Joshi in such a way and deployed in such a manner that the offender believed that Ms Joshi was threatening her and that in order to defend herself, she needed to take physical action.
During the altercation, there was a struggle over the knife and Ms Joshi sustained cuts to her hands and fingers.
At some point in the struggle, the offender disarmed Ms Joshi of the knife, but despite this, the offender continued to believe she needed to respond to a perceived threat from Ms Joshi such that she smothered and strangled Ms Joshi to death.
The offender stabbed the victim in the abdomen twice. One wound was 15mm deep and the other 100mm. There was minimal bleeding and no bruising which the forensic pathologist Dr Bailey suggested meant that there was reduced blood circulation at the time of the stabbing. Other than that, I am unable to determine at what stage of the altercation either stabbing occurred.
The defence submitted that I should accept the offender's account of what occurred because the jury's verdict meant that it must have accepted all of the following: An argument developed after Ms Joshi refused to return the offender's passport and then: (a) The offender went into the second bedroom and the main bedroom to look for her passport; (b) As the offender was leaving the bedroom, Ms Joshi stood between the offender and the doorway with a knife in her hand; (c) There was a physical struggle over the knife; (d) The offender got the knife from Ms Joshi and held it in her hand. Ms Joshi then attempted to get the knife back from the offender by grabbing the offender's arms, hands. When Ms Joshi did not succeed in obtaining the knife, Ms Joshi pushed the offender and put her hand on the offender's neck. In response, the offender stabbed Ms Joshi in the stomach causing a 15mm wound; (e) The offender let go of the knife. Ms Joshi then took the knife and moved towards the offender. The offender tried to restrain Ms Joshi by using one hand to grab Ms Joshi's wrist and using the other hand to push Ms Joshi away from her. Because the offender was pushing Ms Joshi, they both fell down onto the bed. On the bed, the struggle continued during which spots of Ms Joshi's blood from the 15mm wound fell onto the end of the bed (Ex C); (f) Ms Joshi still had the knife in her hand when they were struggling on the bed; (g) Both the offender and Ms Joshi fell off the bed, landing on the floor between the bed and the window; (h) After a further struggle on the floor, the offender sat on top of Ms Joshi; (i) Ms Joshi was speaking loudly to the offender in Gujarati, abusing her with offensive swear words; (j) Ms Joshi still had the knife in her hand; (k) The offender placed one hand over Ms Joshi's face and neck to stop her from swearing, and used one hand to hold down Ms Joshi's arm (the arm of the hand with which Ms Joshi was holding the knife); (l) Intermittently, the offender removed her hand from Ms Joshi's face and neck but when she did so Ms Joshi continued to swear at the offender; (l) Ms Joshi died from suffocation and neck compression; (m) The offender took the knife from Ms Joshi's hand and stabbed Ms Joshi in the stomach, the 100mm wound, at a time just before or just after Ms Joshi died; (n) Neither of the stab wounds was a cause of Ms Joshi's death; (o) When Ms Joshi stopped resisting, the offender thought Ms Joshi was probably dead but she did not check, she did not try to resuscitate her and she did not call 000 for help. I should note that all of these items and that description of the altercation was taken from the offender's account.
I do not accept that the jury's verdict means that all of those matters were accepted. I accept that the jury's verdict means that they accepted some of those matters.
I find to the requisite standard, and consistently with the jury's verdict, that there was a physical struggle over the knife, that Ms Joshi had the knife in her hand or hands and deployed it in such a way that the offender felt threatened and a physical struggle occurred. It is uncontentious that Ms Joshi died from suffocation and neck compression and that neither of the stab wounds was a cause of Ms Joshi's death. The offender believed her conduct was necessary to defend herself. The offender thought Ms Joshi was probably dead, but did not check, she did not try to resuscitate her and did not call 000 for help.
At 4.14am, the same closed circuit television recorded footage of a person walking away from 167 Bestic Street. That was the offender leaving the premises, having killed Ms Joshi.
At 4.22am, the offender's car entered the car park at her work. At 4.24am she is seen walking up the path towards her work building.
The offender phoned Mr Dave at 4.43am and spoke to him for a short time and then again at 5.27am when she spoke to him for 15 to 16 minutes.
Mr Dave left work at around 7am. He arrived home at 7.10am, and looked for Ms Joshi. He noticed things lying outside her purse in the main room. He found her on the bedroom floor, lying on her back between the bed and the window with a knife in her abdomen. He removed the knife in a panic. He called 000. He was told to go outside and wait for help. He described Ms Joshi's face as "all black".
The police arrived at 7.20am and found Ms Joshi to be grey with no pulse. CPR was commenced.
At 7.23 am, Mr Dave rang the offender, telling her "something is happening to Purvi and can you come here, please come here". The offender arrived but was not permitted to talk to Mr Dave at that point.
When questioned by police, the offender denied she knew anything about what had happened, said that she had been at work and had travelled from her unit at Parramatta straight to work, denied that she had been in a relationship with Mr Dave and denied being his girlfriend at any stage. She signed a police statement to that effect.
Whilst at St George Police Station, the offender agreed to forensic testing. Photographs were taken which showed that she had no injuries at all to her face, lower arms or hands.
She was wearing a white work shirt which had a knot tied into the bottom front left hand side. This shirt was examined and the knot untied. Behind the knot were small bloodstains. A swatch was cut from this bloodstain and was later tested and found to be a match for Ms Joshi's DNA.
After she had given her statement but whilst still at the police station a conversation between the offender and Mr Dave was covertly recorded. During that conversation the offender told Mr Dave that police suspected that they were involved in the victim's death. Mr Dave repeatedly told her to tell the truth, including the relationship and the termination of pregnancy. The offender stated, "If anything happened to us, I won't survive" and later, in that same conversation, that if she is implicated in the victim's murder she would kill herself, saying "if anything done like that, I have to die".
On 1 August 2013, the offender staged a crime by pretending that she had been stabbed by two unknown men at Westmead. She phoned 000. Police and ambulance arrived. She was found to have a black-handled "Homemaker" brand utility knife penetrating her abdomen. She was taken to Westmead Hospital and treated for a 2-3cm wound to her abdomen. She gave a recorded interview during which she told a complete fabrication from beginning to end that she had been attacked by two unknown males who had their faces covered, describing that one held a gloved hand over her mouth and the other stabbed her with the knife, and that she urgently needed to speak to Mr Dave because "I need to tell him not to walk alone at night after what happened to me".
The police found that the unit at which the offender had been living previously at Campbell Street had a "Homemaker" brand knife set in a wooden knife block. The utility knife was missing. This was the same type and brand of knife that the offender had stabbed herself with.
In her evidence at the first trial, the offender said that she took the knife from the Campbell Street unit on 31 July and that she stabbed herself "just to distract police that I am not the person who killed Purvi". That evidence, as I have already said, was read to the jury at this trial.
On 14 August 2013, the offender was arrested and interviewed. She gave a fabricated version of what had occurred on the night of 30 July so as to explain the delay between her leaving home and arriving at work. The fabricated version included receiving a call from her father on her mobile phone using Viber whilst driving to work, that she could not pick up the call so she pulled over into a side-street and spent about 10-15 minutes trying to contact him, and then spent some time looking for her work car pass which she eventually found under her seat, and that these things caused her to arrive late to work. These were all lies to cover her tracks.

The autopsy findings

An autopsy was conducted by Dr Bailey, a forensic pathologist. She concluded that the direct cause of death was the combined effects of compression of the neck and smothering.
There were other post-mortem findings of relevance.
Superficial sharp injuries were observed to the front and back of the fingers on both hands of Ms Joshi, and these were in keeping with injuries that occurred around about the time of death. Petechial haemorrhaging present around the eyes, in the conjunctiva of the eyes, and in the soft tissue of the lower half of the face and the scalp were explained by Dr Bailey to be indicative of significant compression of the neck.
Bruising and abrasions present on the lower half of the face, including bruising on the inside of the lower lip, were consistent according to Dr Bailey with some degree of smothering.
Bruising and abrasions were present on the neck. There were multiple areas of bruising within the muscles of the neck, as well as a fracture to the left side of the hyoid bone, a small cartilaginous bone located under the jaw.
Dr Bailey described the mechanism of death by neck compression as follows: So in cases of neck compression, the mechanism of death is usually from vascular compression, so like I said, the trachea is actually very hard to compress. It's usually, depending on the mechanism, the last thing that you're able to compress when applying force to the neck, and long before you get to that pressure, you're going to compress the veins which we've discussed previously on a low pressure vessel and can collapse quite easily, then the arteries which need an extra couple of kilos of pressure on top of that to collapse them. In most cases, the pressure is not adequate enough to completely occlude even the arteries which is why you get the petechial haemorrhages, so if you had enough pressure on the neck to collapse the windpipe, you would have already collapsed arteries and veins which means no blood in, no blood out, so the neck pressure in the head would stay the same and you wouldn't get petechial haemorrhages. The petechial haemorrhages tells me that there has been blood coming in but not the same amount of blood going out so the veins are compressed. The arteries might be in some degree compressed but not completely. Blood goes in, blood doesn't come out, the blood builds up in the head, the small vessels pop and create those tiny haemorrhages. That's the physics behind where petechial haemorrhages are thought to come from. There is then a question: So in terms of Purvi Joshi's death, and having now given evidence about the injuries to the muscles and the structure of the neck, as well as highlighting the petechial haemorrhaging, are you able to attribute whether it's one or other or a combination of the prevention of breathing or the blocking of the vessels which was the contributor to her death? A: So I have evidence of neck compression, I have evidence of the blood pressure in the head building up which tells me that there's been vascular compression. That alone if prolonged can be fatal. It is the most common cause of death in cases of neck compression whether it's manual strangulation, ligature strangulation or hanging. I don't have any evidence that there was collapse or crush of the windpipe or the larynx. There was a fracture of the hyoid bone. … Q: And the various haemorrhages, small haemorrhages that you found on the muscles of the neck suggest to you that there were different applications of pressure to those areas? A: There were. Yeah, there were a number of bruises basically inside the muscles on both sides of the larynx and behind the larynx. So there could have been one broad pressure that compressed the larynx and pressed it into the back of the neck to cause them or it's possibly multiple pressures at multiple times on both sides of the neck.
Dr Bailey said this regarding the fracture of the hyoid bone: Q: In terms of the injury to Ms Joshi's neck, are you able to say what degree of force or pressure needed to be applied to fracture her hyoid bone? A: Again it's very difficult to say. The hyoid bone is, it's a bit like a wishbone so it doesn't necessarily require a great deal of force. It may have required more force in this case just because there was a cartilaginous portion, and the cartilage is flexible so you'd require more force to fracture the cartilage. The injury itself doesn't isn't fatal, it's not that significant in isolation, however, it does speak to a degree of neck compression. Your hyoid bone is tucked right up under your jaw. People don't trip and break their hyoid bones. It's very rare to see hyoid bone injury outside of the setting of neck compression whether it be ligature strangulation, manual strangulation or hanging.
Dr Bailey gave this evidence in regard to the stab wounds: "Two stab wounds of the abdomen, one displaying a small amount of associated haemorrhage, however, the degree of blood loss was not significant and these injuries are likely to be peri mortem in origin." Q: When you say they are likely to be peri mortem in origin A: Peri, around, mortem, death, so around the time of death. Death is not necessarily a finite point in time. All of your body systems shut down in a sequence, so it is very difficult to sort of say at what point is somebody technically dead or alive. It's usually in relatively quick succession though. The amount of haemorrhage that is associated with this wound does not look like somebody who had significant blood pressure at the time the injury was inflicted. It does go through some pretty major vascular structures and some large organs that I would expect to bleed significantly if there was blood pressure at the time, so there was either very low blood pressure or there was waning blood pressure, so there was either no heartbeat or a small heartbeat or just a very weak heartbeat.
Dr Bailey gave this evidence about the cuts to Ms Joshi's hands and fingers: Q: And is there anything about the injuries to the two fingers or the palm of Ms Joshi's hand and those that are on the corresponding fingers on the back of the hand that you saw as relevant when you were assessing the cause of Ms Joshi's death? … A: Well, I think they have been inflicted around the time of death. I think they are peri mortem and likely to be related to the other injuries that she sustained at the time. Q: Is there anything about the injuries to the palm of a person's hand that's considered relevant when a forensic pathologist looks at a person's dead body? A: So, generally injuries to the forearms, palms of the hands and occasionally the backs of the hands can sometimes be referred to as defence type injuries. They're called that just because they are classically sustained when a person tries to defend themselves while being attacked. People instinctively will put their hands and arms up to protect their body and their face and will often get bruises, cuts, injuries to the forearms and, classically, the palms of the hands. Having said that just because they are called defence type injuries doesn't mean that's the only time that they can be inflicted, it is just that in the setting of inflicted injury they are often sustained in that scenario.

Sentencing for manslaughter and the basis for the verdict

It is often said that manslaughter is unique in its protean character as an offence and that its objective gravity may vary from a joke gone wrong to facts just short of murder. The degree of variation between manslaughter cases also results in there being a substantial range in the sentences imposed and there are a number of authorities in support of that proposition. [4]
The fundamental touchstone for sentencing in manslaughter cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which she must be sentenced to imprisonment. [5] Principles of punishment, retribution and deterrence must also play their part. [6]
The maximum penalty is of considerable importance as a yardstick in sentencing. [7] The maximum term of imprisonment for manslaughter is 25 years. [8] There is no standard non-parole period.
It is well recognised that manslaughter can be committed in a wide variety of circumstances affecting culpability. Consequently, there is a substantial range in the sentences imposed for this offence. [9]
As stated by Justice Adamson of this Court in Bloodsworth & Errington: [10] "[44] The starting point for sentencing in such cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he or she must be sentenced to imprisonment. Principles of punishment, retribution and deterrence play their part. Particular regard must be had to the features referred to above relevant to the seriousness of the offence as well as any mitigating circumstances."
I also note Simpson JA in Smith v R [2015] NSWCCA 193 at [71]: "[71] It is also necessary to bear in mind that, because of the infinitely various circumstances in which the offence of manslaughter is committed, limited guidance is to be obtained from previously imposed sentences."

Necessary findings for s 421

As raised in the Court of Criminal Appeal decision of Smith v R [2015] NSWCCA 193 in the judgment of Simpson JA, a jury's verdict carries the implication that the applicant perceived that she was in a position in which it was necessary that she act in order to defend herself, but two further questions were identified by her Honour: 1. What were the circumstances as the applicant perceived them to be? 2. What precisely was the conduct that the applicant believed was necessary in order to defend herself?
Central to the sentencing exercise is the identification of the circumstances as he or she, the offender (rightly or wrongly) perceived them. As stated in [45] in Smith: "[45] …The applicant's perception of the circumstances is relevant to the determination of what he believed it was necessary to do in order to defend himself: s 421(1)(c). For reasons already given, that must be taken to have been found in favour of the applicant. And his perception was integral to the issue raised by s 421(1)(b) - the reasonableness of his conduct in responding to those circumstances. Both questions above are therefore to be assessed by reference to the applicant's subjective perception…"
Further, as Simpson JA stated in that judgment [58]: "[58] The emphasis in s 421 on the response of an accused person "in the circumstances as he or she perceives them" calls for an evaluation of the degree to which the response exceeds that which would be a reasonable response if those circumstances existed…"
The Crown submitted that while the jury acquitted the offender of murder, they convicted her of manslaughter on the basis of excessive self-defence. The essential aspects of the manslaughter verdict in this context consistent with s 421 of the Crimes Act 1900 (NSW) are: 1. The offender intentionally used force (the smothering and strangulation) that involved the infliction of death; 2. The offender believed that the conduct, that is the use of force in fact used, was necessary to defend herself; and 3. That the conduct was not a reasonable response in the circumstances as she (the offender) perceived them to be at the time.
The only account before the jury of what occurred in the unit on 30 July between Ms Joshi and the offender is the offender's. She has lied on multiple occasions about what happened that night and on 1 August. I am bound to find the facts in accordance with the jury's determination, and this means that some parts of the offender's account must have been accepted as true.
It is clear there was a physical struggle over the knife, given the self-defence wounds on the back of the deceased hands. Whether the struggle was as described by the offender is unknown. There was clearly a struggle which ended up on the floor of the bedroom as that is where Ms Joshi was found. Clearly the jury accepted that a knife was introduced or deployed during the altercation by Ms Joshi, otherwise there would be no basis to conclude self-defence.
The offender said she continued to apply hard pressure to Ms Joshi's mouth, nose and throat because she wanted Ms Joshi to stop calling her names as well as wanting to relieve Ms Joshi of the knife in her hand. This account seems to me to introduce a complexity into the determination I need to make on the question of the offender's perception of the circumstances in which she found herself, and the assessment I must make as to the extent to which her conduct departed from what would have been a reasonable response in the circumstances as she perceived them.
As submitted by the defence, it would be consistent with the jury's verdict to find that it was the offender's anger in response to what had taken place, being suddenly threatened with the knife, as well as the name-calling, that caused her to apply concerted pressure to Ms Joshi's neck, face and throat, and It would be consistent with the jury's verdict, to find that the offender was physically in the dominant position when she was sitting on Ms Joshi, and that she could have safely disarmed Ms Joshi at that time if that were her only focus. As I have already observed, I do not make any specific findings that rely on Ms Patel's account of what occurred in the unit with Ms Joshi.

Objective seriousness of the offending conduct

The greater the departure her conduct was from what would have been a reasonable response in the circumstances, the more serious the offence: Smith v R at [56]; R v Anderson [2016] NSWSC 399 at [67]; R v Hadchiti [2017] NSWSC 292 at [39]. Whilst two of the decisions are currently subject to appeal, the principle is a well-known one.
This is a difficult matter to determine given the credibility issues associated with the offender. Consistently with the jury's verdict, I conclude that she felt her life was in danger. It is also possible she felt angry at the abuse she says was being shouted at her by Ms Joshi, but there is insufficient evidence to conclude that it was anger that motivated her physical actions.
Significantly, the offender had no mark or bruise on her face, hands or lower arms.
Ms Joshi had multiple injures to the neck and face and hands that I have already referred to and that were detailed in the evidence of Dr Bailey.
Also significantly, there were five areas of intra-muscular haemorrhaging in the neck and throat of Ms Joshi described by Dr Bailey.
Dr Bailey was unable to provide a clear quantification of the degree of force necessary to inflict the injuries causing this haemorrhaging in the neck muscles. In answer to a question about that, she responded: "Enough force. Unfortunately, I can't give you anywhere to quantify that. Each individual is different and requires a different amount of force to produce a bruise and I can't comment upon that further."
Dr Bailey was then asked: Q: Given that there was an area of haemorrhaging at the back of the throat behind protective muscles and also the pharynx, does that assist you in providing any comment on how much force was required to cause that haemorrhaging? A: That haemorrhaging itself is not particularly significant. There are very small haemorrhages in small muscles. However, it corroborates the bigger picture that there has been compression of the neck. Those muscles that sit at the back of the larynx, the only way I can see that would happen is actually pushing the larynx into - into those muscles, and that corroborates my theory of neck compression which is also supported by the petechial haemorrhages. Q: Are you able to describe the type of force that would have been used to cause those injuries? A: They're multiple injuries in multiple muscles on both sides of the neck. They are all in the general area of the - of the larynx. A broad pressure around the neck or multiple pressures around the neck could produce that. [T337.49-338.15]
The manner in which Ms Joshi was strangled and smothered is relevant to the question of the extent to which the offender's conduct departed from what would have been a reasonable response in the circumstances as she perceived them.
The conduct the offender engaged in involved the deliberate and sustained and/or repeated infliction of severe neck compression combined with smothering that caused the death of Ms Joshi. These actions were excessive in all the circumstances and manifestly so.
The failure to try to resuscitate or call 000, knowing that Ms Joshi was not moving, informs the circumstances of the seriousness of the offender's conduct - that is that she intended to kill Ms Joshi, rather than to inflict grievous bodily harm.
I accept the Crown submission that this is a serious offence of its kind.

Aggravating and mitigating factors

Although Ms Joshi was stabbed twice with a knife, I have concluded that the involvement of the knife is not an additional aggravating factor as it was not instrumental in the manslaughter.
The offence was committed in the home of the victim. That was submitted by the Crown to be an additional aggravating factor. The defence submitted that in the circumstances of self-defence, where the aggressor was the victim Ms Joshi, I should not make such a finding. Given the finding that I have made about the lack of credibility of the offender, and so the absence of reliable evidence about the circumstances in which the offender came to be inside the premises, I do not accept at face value the defence submission. The jury's verdict is consistent with a conclusion that excessive force in self-defence comprising the crime of manslaughter was used by the offender in the victim's home. In those circumstances, I conclude that is an aggravating factor.
It is undoubtedly a mitigating factor that the offender has no criminal record and is otherwise a person of good character.
The Crown submitted that there is an absence of remorse for the offence. [11]
The defence made no submission regarding remorse and there was no evidence regarding remorse, other than the expression of regret on page 4 of the pre-sentence report and some expression of remorse to Dr Collins. There was no sworn evidence of remorse.
It is a mitigating factor that the offender has good prospects of rehabilitation. I accept that she is unlikely to reoffend. The report of Dr Emma Collins, psychologist, provides a reasoned basis upon which to make that finding.
There is little if any role for specific deterrence in sentencing this particular offender. I accept the defence submission that the jury must have accepted that the offender killed Ms Joshi after Ms Joshi unexpectedly threatened her with a knife. The jury must have accepted there was a right to defend herself but that she went beyond what was reasonable in the circumstances as she perceived them.
However, consideration of general deterrence and the issues of retribution, denunciation and punishment are important ones given that the unlawful killing of another human requires such considerations to be borne in mind. As Adamson J said in R v Abdallah [2015] NSWSC 531 at [65]: "[65] …Each of us is part of a whole community. When any one of us is wrongfully killed, all of us are harmed, although the loss is felt principally by those closest to the deceased. Wrongful killing is not only a fundamental breach of the peace but also a breach of the social contract of the highest order. Institutionalised justice, which has replaced private retribution, must recognise this harm and endeavour to redress it by imposing an appropriate sentence."

The earlier offer to plead guilty and "delay"

The offender offered to plead guilty to manslaughter a little over 4 weeks after her arraignment in early 2015 and this offer was rejected by the Crown. That offered plea was not conditional upon an undefined statement of facts. The Crown submitted that the offender is entitled to an appropriate discount in the range of 10-15%. [12] The defence submitted that 15% was the appropriate discount. I accept that 15% is the appropriate discount.
An additional submission was made by the defence regarding delay. The argument posed was that "through no fault of her own" the offender remained unsentenced after nearly five years in custody, was tried twice, successfully appealed against her initial conviction, and has been subjected to the vagaries of the legal system "more than most".
In support of a submission that a "high degree of leniency" ought to be extended to the offender, R v Todd [1982] 2 NSWLR 517 was cited. In that case, Street CJ at 519-520 made some comments regarding the case which involved delay in sentencing due to interstate sentences being served for crimes committed across borders very close in time, and the failure by the sentencing judge in that case to take these issues into account on the question of totality. The extract quoted from Street CJ at 519-520 is dealing with considerations salient to that particular scenario that do not in any way translate to the circumstances here.
The offender will have account taken of time served. There is no principled reason to extend any particular degree of leniency, simply because the offender is being sentenced five years after her crime.
In relation to the submission regarding hardship in custody, I accept that there have been hardships given the geographical isolation from her family. However, I am of the view that does not have any particular persuasive role in dictating a lesser sentence than is otherwise appropriate for the crime committed.

Victim Impact Statement

Ms Joshi was the only child of Mr Narendra and Mrs Pravina Joshi. They provided a joint victim impact statement which described Ms Joshi as their heart and soul, their life and their support. They describe her death and its circumstances as a shock and a nightmare that they are still trying to overcome. They describe distressing physical symptoms that they both suffer, as well as psychological distress and the fact that in India, a couple who does not have any child is considered as bad and evil, and that neighbours and relatives avoid them. They feel society is blaming them for sending their daughter to Australia. They describe feeling unsafe, alone and humiliated.
The loss of a child is a terrible one that no parent should ever have to experience, particularly not in such terrible and violent circumstances. I extend my sympathies to Dr and Mrs Joshi for the loss of their beloved daughter, Purvi.

Subjective circumstances

The offender was born on 8 December 1982 in Gujarat, India. She is now 35 ½ years old. She described to Dr Collins a positive and stable upbringing. She completed a degree in mechanical engineering in 2004 in which she says she achieved a distinction result. She was then employed as a university lecturer before migrating to Australia in 2008. Her marriage failed in 2010. In the meantime, she worked in various jobs apart from a period of unemployment in 2012 before commencing her role at SNP Security. She described to Dr Collins feeling sad and claustrophobic in custody, ruminating on the death of Ms Joshi and the effect that has had on hers and Ms Joshi's family. She received support from her family overseas.

Time in custody

The offender has almost 5 years in custody since her arrest on 14 August 2013. That is, to be precise, 1,773 days. This time has been either bail refused or as part of the sentence imposed upon her following her first trial.

Sentence

For the offence of manslaughter, I impose a sentence of imprisonment consisting of a non-parole period of 7 years commencing from 14 August 2013 and a balance term of 2 years 4 months. The offender will become eligible to be released on parole on 13 August 2020. This term has been reduced by a discount of 15 per cent for the offer to plead guilty made in 2015.

Crimes (High Risk Offenders) Act

I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence for which you have been sentenced.
In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
It is, therefore, in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Endnotes

R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R.
R v Olbrich (1999) 199 CLR 270; 103 A Crim R 149; [1999] HCA 54 at [27].
Weininger v R (2003) 212 CLR 629; [2003] HCA 14 at [19]-[24].
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1985, unrep); R v Weinman (1987) 49 SASR 248 at 252; R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 at [133]; R v Lavender (2005) 222 CLR 67; 155 A Crim R 458; [2005] HCA 37 at [22]; Pitts v R [2014] NSWCCA 244 at [12]; R v Anderson [2016] NSWSC 399 at [89].
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1985, unrep).
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A.
Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31].
Crimes Act 1900 (NSW) s 24.
R v Lavender (2005) 222 CLR 67; 155 A Crim R 458; [2005] HCA 37 at [22].
R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79 at [44].
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(i).
Smith v R [2015] NSWCCA 193 at [4], [41]; R v Hamzy [2016] NSWSC 1512 at [50]-[53]; R v Johnson (No 5) [2017] NSWSC 1169 at [31]-[35].

Amendments 04 July 2018 - Typographical errors in coversheet, [81], [84], [90]. 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: 04 July 2018

Crimes Act 1900(NSW)ss 24, 421, s 24.

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 21A, s 3A., s 21A(3)(i).

At a glance

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