IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-013998 [2015] NZHC 954

THE QUEEN

v

SHIVNEEL SHAHIL KUMAR AND
BRYNE BISHNAL PERMAL

Charge:

Plea::	Murder

Not Guilty	

Appearances:	
A Perkins and Z Johnston for Crown
R Mansfield and P Davey for Prisoner Kumar
I Jayanandan and P Borich for Prisoner Permal	

Sentenced:	
7 May 2015
Life imprisonment - MPI - 17 years	

SENTENCING NOTES OF VENNING J

Solicitors:	Crown Solicitor, Auckland
Copy to:	R Mansfield/P Davey, Auckland
I Jayanandan/P Borich, Auckland

R v KUMAR  & PERMAL [2015] NZHC 954 [7 May 2015]

[1]       Shivneel Kumar and Bryne Permal, you are for sentence having been found guilty of the murder of Shalvin Prasad.   The only sentence appropriate is life imprisonment.     The  issue  for  the  Court  today  is  the  minimum  period  of imprisonment that you must serve before parole can be considered.

[2]       Just because that issue will be the focus of my comments I do not want you, the victim’s family (whose presence in Court I acknowledge), nor the media when reporting this sentencing, to lose sight of the fact that the sentence to be imposed on you is one of life imprisonment.

[3]       Shalvin Prasad died as a result of being burnt alive on the 30/31st  January

2013.  The jury were presented with two scenarios upon which you would have been guilty of murder.   Scenario A, that Mr Prasad was known by you to still be alive when you burnt him to death;  and scenario B, that you attacked him earlier in the evening intending to kill him, thought you had done so and then burnt what you believed to be his dead body in order to dispose of the evidence.

[4]       It was conceded by you at trial that Mr Prasad was alive when you burnt him to death.  The issue was the level of his consciousness.  Having heard the evidence I consider it more likely that Mr Prasad was deeply unconscious at the time you poured  petrol  over him  and  set  fire to  him.    On that  basis  I accept  there is  a reasonable possibility you believed him to be dead at the time you set fire to him. That supports scenario B as the basis upon which the jury found you guilty of murder.  I propose to sentence you on that basis.

[5]       Mr Prasad was well known to you Mr Kumar.  You had previously borrowed a significant sum of money from him.   His family had taken steps to recover that money from you.  Despite that it is apparent from the text messages exchanged between the two of you that he regarded you as a friend.  He was seeking your friendship.  The text messages disclose that you were clearly the dominant party in that relationship.  The evidence discloses Mr Prasad was a naïve and trusting young man.  As Mr Perkins described he seems to have been a thoroughly decent young man.  You understood Mr Prasad’s need for friendship and you abused it.  You somehow convinced him to withdraw his life savings, the $30,000, on 30 January.  I

note that on that day alone, you and he exchanged in excess of 60 text messages. There were also phone calls.  Then, with the assistance of Mr Permal, you assaulted Mr Prasad with the intention to kill him.  You did that so that the two of you could keep the $30,000.

[6]       Mr Permal, the jury found you were also directly involved.  While Mr Kumar was the one with the direct relationship with Mr Prasad, he needed your assistance. He kept you informed as to his plans.  The jury found the two of you were involved in the murderous attack on Mr Prasad in order to keep the $30,000 cash and later, to cover up that by burning what you believed to be his body.  Even though you were at work until 9.00 pm that night of 30 January Mr Kumar kept you in touch.  You and he had also exchanged a number of texts and phone calls leading up to 30 January. In the course of the previous texts there was talk of a “big pay day”.  Importantly, you both communicated by phone just before your shift finished at 9.00 o’clock that night, and then, shortly later there was a further call at about quarter past 9, just before you all met up again outside your work and Mr Prasad was seen alive for the last time in the CCTV coverage.

[7]       The  evidence  shows  that,  having  convinced  Mr  Prasad  to  withdraw  the

$30,000 on 30 January, the two of you arranged to meet him outside Mr Permal’s workplace at about 9.00 o’clock that night.   Mr Permal, you then drove your workmate Mr Brien home as usual.  Mr Kumar and Mr Prasad followed.  You then drove back to Mr Permal’s workplace where Mr Prasad got into Mr Kumar’s car and then Mr Kumar you drove off with Mr Permal following.  As I say that was the last time Mr Prasad was seen alive.  The next time the two of you were seen together you were buying the petrol that was used to burn Mr Prasad.

[8]       On scenario B the jury found the two of you assaulted Mr Prasad with intent to kill him.  You rendered him deeply unconscious as a result of that murderous assault.  The expert evidence of the pathologist was that for him to have been rendered deeply unconscious to the extent and so that you might believe him to be dead, would require his brain to be starved of blood or oxygen for a considerable period.  As the doctor did not see any direct injuries of force to the head through his

examination, I infer that the unconsciousness was caused by a long and deliberate period of compression to the neck area as the pathologist described.

[9]       Having  thought  you  had  achieved  your  intended  purpose  of  killing  Mr Prasad, you both then set about disposing of the evidence by purchasing 15 litres of petrol, and subsequently set fire to him.  Tragically, it is clear and was accepted on your behalf during the trial that he was still alive at the time you burnt him to death. The only matter of small comfort to his family may be that he was deeply unconscious at the time he was set alight.

[10]     In determining the minimum non-parole period the Court is required to have regard to s 104 of the Sentencing Act 2002.  If one or more of the factors identified in that section are present the Court must impose a minimum non-parole period of 17 years unless to do so would be manifestly unjust.

[11]     Both  Mr Mansfield  for  you  Mr Kumar  and  Ms  Jayanandan  for  you  Mr Permal submit s 104 does not apply.  Mr Mansfield has argued for a minimum non- parole period of 13–14 years as a start before taking a reduction for your youth and Ms Jayanandan argues for a minimum non-parole period in the region of 12 years.

[12]     Despite  counsels’ submissions  to  the  contrary,  I  consider  that  s  104  is engaged in this case.  Importantly, the theory behind the conviction for murder under scenario B is that the final act of killing Mr Prasad, burning him to death, was part of the single transaction for which you were responsible. You had the necessary mental element or mens rea during the transaction leading to your killing Mr Prasad, even though at the time you burnt him to death you may have believed you were disposing of a dead body.  In this case the jury accepted you intended to kill Mr Prasad when you initially assaulted him and rendered him so deeply unconscious, and the subsequent burning to death was part of the same transaction.

[13]     In those circumstances I consider that s 104 is engaged on a number of bases. It could be that taken overall, the murder or at least the ultimate killing of Mr Prasad was committed in an attempt to avoid detection or prosecution for your earlier murderous assault on him so that s 104(1)(a) is engaged.  Alternatively, I consider in

any event that s 104(1)(i) exceptional circumstances applies in this case, given the sequence of events that ultimately led to Mr Prasad’s death.  Clearly if you had burnt him to death knowing he was still alive that would have been cruel and callous in the extreme.   Counsel submit that as you believed him to be dead, the element of callousness is missing.   However, while you may have believed Mr Prasad to be dead, he was still alive and you killed him by burning him to death.  You had direct murderous intent at the time you assaulted him and rendered him deeply unconscious which led to your belief he was dead.  Your actions in burning him to death were so closely related to your earlier intentional murderous assault on him I consider it would be artificial to seek to separate the mental and physical sequence of events as counsel suggest and would not reflect the overall culpability of your actions.  As I have said it has to be regarded as part of a single transaction.  Cases such as this will thankfully not arise often.   I consider that exceptional circumstances exist in this case, which engage s 104(1)(i).

[14]     It could also be said and inferred from the evidence that the Court heard that the murder was effectively committed in the course of another serious offence, which was to steal and retain the $30,000, even though you were not charged with that offence.

[15]     As  the  Court  of Appeal  has  directed  in  R  v  Williams1   I  must  consider, however, the minimum period of imprisonment that would be appropriate for this offending if s 104 did not apply to determine if a minimum non-parole period of 17 years would be manifestly unjust.    In  relation  to that  consideration  there are a number of relevant aggravating factors in this case.  The severe, deliberate and sustained assault on the deceased to render him so deeply unconscious, the significance of the harm caused by your actions, the effect that a murder of this kind has on the victim’ family particularly but also on society generally are relevant. There is also the fact that there were the two of you acting jointly against the deceased, in accordance with a plan to enable you to take and keep the $30,000 you had convinced Mr Prasad to withdraw from the bank.  Also relevant is that, having
believed you had killed him, you then set out to dispose of his body to cover up your

1	R v Williams [2005] 2 NZLR 506 (CA).

actions.  Your actions throughout the night and in the spending spree that followed displayed a lack of humanity at the least.

[16]     Having regard to the need to hold you both accountable for such offending; to promote in you a sense of responsibility for the harm, which you continue to deny any responsibility for;  to denounce and deter you and others from such actions;  to take into account the interests of the victims;   and to achieve consistency with sentences imposed in other murder cases, I consider that a minimum non-parole
period very close to or at 17 years would be required in any event.2   I am satisfied it

cannot be said that a minimum non-parole period of 17 years would be manifestly unjust in either of your cases.  I note the Crown does not seek anything more than 17 years.

[17]     So far I have been speaking generally about your joint position.  Of course I must consider each of your cases separately.  In your case Mr Kumar, Mr Mansfield makes the point that while you are now 21 years old, you were only 18 years old at the time of the offending.  You came to New Zealand at a young age.  You have a partner and child in South Africa.  At the time of the offending you were living at home with your parents.  Mr Mansfield emphasises you do not have a history of violence and that you have, in his submission, received strong support from your family who are determined to help in your rehabilitation and reintegration into society.   Frankly, I have to observe that your family would provide more positive support to you if they helped you accept responsibility for your actions rather than apparently supporting you in your continued denial of responsibility in this case.  Mr Mansfield argues, as I say, for a minimum non-parole period of 12 to 13 years after a
reduction of 12 months for your youth and lack of previous convictions.

2	R v Accused (CA125/87) [1998] 1 NZLR 422;  R v Rapira [2003] 3 NZLR 794 (CA);  Huata v R [2013] NZCA 470;  Churchward v R [2011] NZCA 531 (2011) 25 CRNA 446;  Tahiri v R [2013] NZCA 73;  R v Churchis [2015] NZHC 2257;  R v Cui R v Khan CA470/04, 14 June 2005;  R v Frost [2008] NZCA 406;  R v Gosnell [2013] NZHC 1313;  R v Baker [2007] NZCA 277;  R v Ying (2004) 20 CRNZ 1078 (HC);   R v Weatherston HC Christchurch CRI-2008-012-137, 15
September 2009;  R v Alahakoon & Sawal [2013] NZHC 2316;  R v Mills HC Rotorua CRI-
2008-063-2260, 6 August 2009;   ; R v Sharma [2012] NZHC 621; R v McLaughlin [2013] NZHC 2625;  R v Gottermeyer [2014] NZCA 205; R v Peach HC Christchurch CRI-2008-009-
013852, 3 December 2009; R v Callaghan [2012] NZHC 596; R v Davis [2013] NZHC 2716;
and R v K (2003) 20 CRNZ 62 (CA).

[18]     As you will appreciate from my previous comments I am not persuaded by those submissions.   Further, there is little available by way of mitigation in your case.  The pre-sentence report discloses you are still in denial.  In your pre-sentence report you have come up with, for the first time, a suggestion that the deceased withdrew the money to fund a visit to nightclubs in Hamilton for the night.  The suggestion that someone might withdraw $30,000 in cash, their life savings, for a visit to nightclubs in Hamilton is, obviously unrealistic and unsustainable.

[19]     Further, you told the probation officer that in fact it was Mr Permal who had lashed out while the three of you were in the car and assaulted Mr Prasad to his head. However, as the pathologist made clear there were no head fractures or anything of that kind evident.

[20]     Mr  Kumar  your  statements  to  the  probation  officer  are  simply a  further attempt by you to minimise your own responsibility.  You continue to seek to place the blame on others and refuse to accept the consequences of your own actions.  You present as being detached from the offending events.  You are entirely without remorse for your actions.   My assessment, having heard the evidence, is that you were  the  instigator  of  this  offending.    Your  role  as  the  instigator  could  have supported  a minimum non-parole period  of greater than 17  years but,  balanced against that I take into account your relative youth at the time of the offending, 18 years.  But in doing so I note there is no medical evidence before the Court of any particular neurological issues on your behalf which would support any substantial reduction, nor for that matter can it be said your actions were the impetuous actions of youth reacting to circumstances you were presented with.   You created the circumstances which led to Mr Prasad’s death.  As I have said, you and Mr Permal had planned to take and keep the $30,000 from Mr Prasad.  When you assaulted him in order to achieve that you intended to kill him. You meant to kill him. This was no impetuous youthful act.

[21]     I turn to your position Mr Permal.

[22]     Ms Jayanandan submits the minimum non-parole period should be no more than 12 years.  She notes your previous good character and the possibility you may

have been convicted as a party.  However, even if you were convicted by the jury as a party it was a party who was directly involved in the scheme to keep Mr Prasad’s money and who actively assisted in the murderous assault and attack on Mr Prasad.

[23]     The pre-sentence report records that while you were born in Fiji you came to New Zealand and obtained permanent residence status in 2009.  You passed NCEA levels 1 and 2 before commencing work.  At the time of this offending you were employed as a fork hoist operator.  You have no current partner or girlfriend and no dependents. Your parents continue to support you.

[24]     You are slightly older than Mr Kumar.  While you are 22 and obviously were younger at the time of this offending, the same comments I have made in relation to Mr Kumar’s age apply to you.   In your personal circumstances and in the circumstances of this case there can be no reduction for youth.

[25]     In your pre-sentence report you also continue to deny your involvement in the fatal assault on the deceased and say you did not help Mr Kumar to burn him. That was your case at trial.  The jury had that explanation before it.  In the last part of your interview with the police you gave that explanation.  Your counsel closed your case to the jury on that basis.  In finding you guilty of murder the jury rejected the explanation that you had given and in fact did not even consider it to be a reasonable possibility.

[26]     Without your active assistance to Mr Kumar, Mr Prasad may not have been killed. You were actively involved with Mr Kumar in arranging the relevant meeting as confirmed by your telephone communications with him that night.  You were seen with the deceased and Mr Kumar when he was last alive.   Your involvement is further confirmed by the footage showing you buying the petrol which was used to burn Mr Prasad’s body.

[27]     The intercepted discussion between you and Mr Kumar in his car days after the event is also telling.  The conversation shows that you were actively involved in seeking to cover up what the both of you had done. The intercept shows that at times you directed the conversation.  At one point Mr Kumar looked to you for what he

should do.  He asked you for ideas.  So while I accept Mr Kumar was the instigator of the offending I find you were fully involved in all aspects of the murderous assault and ultimate death of Mr Prasad.   As I say there are really no mitigating factors for you either. You, like Mr Kumar, lack any remorse.

[28]     I see no reason to distinguish your case from Mr Kumar’s case for sentencing purposes.  On the jury verdict and the evidence you were fully involved throughout. You benefitted from the $30,000 taken from the deceased, although not to the same extent.  But that imbalance in the distribution and use of the deceased’s money does not support any distinction in the sentence.

[29]     Mr Kumar and Mr Permal please stand.  For the murder of Shalvin Prasad you are each sentenced to life imprisonment.  You are also each sentenced to serve a minimum  period  of  imprisonment  of  17  years  before  you  will  be  eligible  for
consideration for parole.  Stand down.

Venning J