Malik v R

• Jurisdiction: New Zealand
• Judge: Miller,Simon France,Asher JJ
• Judgment Date: 09 December 2015
• Neutral Citation: [2015] NZCA 597
• Docket Number: CA130/2015
• Court: Court of Appeal
• Date: 09 December 2015

Between

Ishrat Malik

Applicant

and

The Queen

Respondent

[2015] NZCA 597

Court:

Miller, Simon France and Asher JJ

CA130/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against sentence and the minimum period of imprisonment of 18 years — appellant had pleaded guilty to the murder of his wife and 18 year old daughter — appellant was arrested in May 2014 but did not enter his guilty pleas until December 2014 — in the intervening period he underwent evaluation under the Criminal Procedure (Mentally Impaired Persons) Act 2003 during which the experts initially agreed that he might be feigning psychiatric illness and cognitive problems, but that this did not exclude mental health issues — shortly before the hearing, two experts suggested that he suffered from a narcissistic personality but there was dissention as to whether this amounted to a mental impairment — the trial judge then found the appellant fit to stand trial and he shortly after entered guilty pleas — the Judge set the starting point at 21 years and only allowed a 7.5% discount for guilty pleas and no discount for previous good character or remorse — whether minimum periods for murder ought to be set using the ordinary sentencing principles and practices that applied when setting determinate sentences — whether the starting point of 21 years was outside the available range — whether the appellant was entitled to the full Hessell v R (SC) discount — whether a discount ought to have been given for good character.

Counsel:

P L Borich and A Rasheed for Appellant

K S Grau for Respondent

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Miller J)

Introduction

1 Ishrat Malik murdered his wife Farhat and 18 year old daughter, Sidra. He pleaded guilty and was sentenced in the High Court to life imprisonment with a minimum period of imprisonment of 18 and a half years. 1 He now appeals the minimum period.

The offending

2 Mr Malik and Farhat married in 1988 in Pakistan, where he was a construction foreman and she a scientific officer. The marriage was arranged. They had three children. The family emigrated to New Zealand in 2002 and they settled in Auckland, where Mr Malik worked as a bus driver.

3 Mr Malik maintains that the marriage was a loving relationship, but in the circumstances that seems implausible and the background information available to us, including witness statements, 2 indicates that it was unhappy from the beginning. Mr Malik appears to have been a rigid and domineering husband and father, disposed to find unacceptable anything less than complete deference and strict obedience to his wishes as head of the house, and it appears that there was a history of domestic violence.

4 In 2013 Farhat left the family home in Ranui, taking Sidra. The cause appears to have been an assault on Sidra. Farhat took Sidra to a Women's Refuge and obtained a protection order against Mr Malik.

5 Mr Malik did not accept his wife's decision to leave. He says he was offended because he had been a loving husband and the marriage was a happy one. He manipulated the couple's children to persuade her to return home, and sought Farhat's forgiveness. Eventually Sidra did return home. Farhat did not, but she spent increasing amounts of time there, sometimes staying for several days at a time.

6 Farhat eventually decided that she would not reconcile with Mr Malik. She made arrangements to move to another house. The move was arranged for 20 May 2014. She and Sidra spent the night of 18 May at the family home.

7 Knowing of his wife's plans, Mr Malik spent the night brooding. He decided that he would kill her, and Sidra too. At about 5.30 am he phoned his employer to say that he would not be at work for a few days. He took a large kitchen knife and went to Farhat's room, where he stabbed her 31 times. He then went to Sidra's

room. She realised what was happening and tried to flee. He overcame her and stabbed her 25 times

8 At 10 am Mr Malik dialled 111 but hung up without saying anything. When the operator called back he said that there had been a murder and confirmed his address, telling the police to come. The police arrived quickly. They found both women dead.

9 When the police arrived Mr Malik called his older daughter, Rida, from whom he seems to have been estranged. He told her that she and her husband would not win, because he had killed Farhat and Sidra.

The court process

10 Mr Malik was arrested on 19 May 2014 but did not enter his guilty pleas until 23 December 2014. In the intervening period he underwent an extended process of evaluation under the Criminal Procedure (Mentally Impaired Persons) Act 2003. No fewer than eight expert reports were obtained from four experts. The experts gave evidence at a hearing held on 15 December 2014, following which Moore J found Mr Malik fit to stand trial. 3

11 Because one of the issues on appeal is whether Mr Malik entered his pleas at the first reasonable opportunity, we outline briefly when the expert reports were prepared and what they said. Following arrest Mr Malik was seen by a consultant psychiatrist at Mt Eden prison, where he was held on remand. There were thought to be indications of malingering but because of communication difficulties a mental disorder could not be excluded. That appears to have resulted in two further assessments in June 2014. Both raised the possibility of malingering. The first formal report for the Court was dated 5 August 2014. It was written by Dr Sakdalan. The report concluded that there was good evidence that Mr Malik was feigning psychiatric illness and cognitive problems, but that did not exclude mental health issues. Dr Sakdalan considered that Mr Malik's highly unusual presentation could

not be explained by malingering alone. The doctor concluded that Mr Malik suffered dissociative amnesia and opined that he was unfit to stand trial

12 A series of reports was then prepared by Drs Goodwin, Nuth and Pillai. In a letter of 24 October 2014 Dr Nuth recorded the outcome of a meeting with Dr Sakdalan and Dr Goodwin. They agreed that Mr Malik was likely malingering but that did not necessarily preclude actual impairment. Difficulties that defence counsel was experiencing taking instructions from Mr Malik were likely to result from him being uncooperative and unwilling rather than unable to engage. The experts differed with respect to the possibility that Mr Malik also suffered from some form of mental illness. Dr Sakdalan and Dr Goodwin could not rule out psychosis and Dr Sakdalan considered that dissociative amnesia could not be ruled out entirely. Dr Nuth considered that there was minimal reliable evidence of mental impairment.

13 In a report dated 4 December 2014 Dr Pillai diagnosed narcissistic personality disorder, which is characterised by a prominent sense of entitlement, exploitation of others and absence of empathy. Dr Pillai discounted dissociative amnesia and concluded that there were no symptoms of a significant major mental illness such as psychosis. He concluded that Mr Malik's presentation on a wide range of health symptoms was most likely consciously feigned. It followed that Mr Malik was fit to stand trial.

14 Dr Sakdalan subsequently agreed, in a report dated 9 December 2014, that Mr Malik suffers from a narcissistic personality disorder at the severe end of the spectrum. Personality disorders can qualify as mental disorders for legal purposes and it remained Dr Sakdalan's opinion that Mr Malik was unfit to stand trial.

15 In a report dated 11 December 2014, Dr Goodwin concluded that Mr Malik was not mentally disordered. He accepted that Mr Malik has a personality disorder but considered that even if one were to take a generous view of its impact there was certainly a component of conscious free will in Mr Malik's presentation. He concluded that Mr Malik was not unfit to stand trial.

16 The fitness hearing was held before Moore J on 15 December 2014. The psychiatrists gave evidence as a panel. The Judge summarised the evidence: 4

[41] At the hearing there was agreement between the experts that Mr Malik was feigning or exaggerating his symptoms and that he was not suffering from either dissociative amnesia or psychosis of any kind. There was also broad agreement that Mr Malik displayed a narcissistic personality structure, with two of the experts taking the view that this amounted to a personality disorder. Of the experts, only Dr Sakdalan was of the view that his condition would render Mr Malik unfit to stand trial. The other experts considered that the difficulties which Mr Malik would face at trial, while contributed to by his narcissistic personality, would be the result of his own wilful decisions, in other words a conscious election on his part not to participate.

17 The Judge concluded that Mr Malik was malingering. He was satisfied on the balance of probabilities that Mr Malik's narcissistic personality structure did not amount to a mental impairment. Within a short time Mr Malik had entered guilty pleas.

The sentencing

18 Mr Malik was sentenced on 13 March 2015. Moore J accepted that s 104 of the Sentencing Act 2002 was engaged for two reasons, the double murder and the high degree of brutality. There were other aggravating factors, notably a degree of premeditation, the vulnerability of the victims, the impact on other family members and the breach of trust. The Judge concluded by reference to other sentences for double murders that a minimum period of 21 years was an appropriate starting point.

19 Turning to mitigation, the Judge was prepared to grant an additional discount for Mr Malik's mental condition. He was satisfied that a personality disorder contributed to the offending and might make the effect of a prison sentence more difficult to bear. He allowed a deduction of one year for that.

20 However, the Judge did not accept that a discount...