Baby killer Surender Singh Mehrok on trial in the Tauranga High Court. Photo / File
A baby-killer's attempt to reduce his overall sentence and his minimum sentence has been unsuccessful.
Surender Singh Mehrok took his case to the Court of Appeal and in a recently-released finding Justice Timothy Brewer quashed all aspects of his appeal.
Last year, a Hamilton jury found Mehrok not guilty of murdering 14-week-old Richard Royal Arif Uddin in Tauranga on June 7, 2016, but guilty of manslaughter.
Justice Christine Gordon sentenced him to seven years and nine months imprisonment with a minimum non-parole period of half that sentence.
Baby Royal, as he was known, died after suffering massive head injuries caused by Mehrok while they boarded at the same address in Tauranga.
Mehrok admitted to causing the fatal injuries but denied he meant to kill the baby, claiming it was a case of manslaughter, not murder.
The 14-week-old died while his mother, Nikita Winiata, and her friends popped out for pizza for themselves and their children.
They were away from the house for just over 30 minutes, returning to find Baby Royal covered in vomit and lifeless.
In the Court of Appeal, Mehrok's lawyer appealed his sentence on seven grounds including that Justice Gordon failed to correctly identify the factual basis for sentencing, adopted too high a starting point, inappropriately uplifted the starting point as a result of previous convictions, and failed to give sufficient credit for the offer to plead guilty, for youth, for personal circumstances and for failing to give any credit for the steps taken to shorten the proceedings.
His lawyer identified further grounds of appeal to the effect that the judge erred in imposing a minimum period of imprisonment.
Justice Brewer did not accept any of the grounds.
Mehrok's lawyer argued the factual basis for sentencing, claiming Mehrok killed the baby by throwing him into a bedroom wall during a momentary loss of self-control.
The Crown's case was there were at least two significant blows or impacts to the baby's head.
In his finding, Justice Brewer said the sentencing judge decided it was the extreme use of force against the baby which mattered rather than the number of impacts and the grounds for appeal were rejected.
Justice Brewer also disagreed the starting point of Mehrok's sentence was too high.
Mehrok's lawyer claimed the judge drew a distinction between violence against babies and violence against "toddlers" and this was an error.
Justice Brewer said in every case, an assessment must be made of the vulnerability of the victim and the acts of the defendant, including how dangerous the acts were in the circumstances.
"This case is characterised by the extreme use of force on a completely vulnerable child following shortly after the infliction of other much less severe violence. On first principles, a starting point of 10 years is within range."
During sentencing, Judge Gordon increased Mehrok's sentence by three months because of his previous convictions for violence against children recognising "a higher risk of re-offending and the need for deterrence".
His appeal lawyer said these convictions shouldn't have been taken into account and were "relatively minor assaults on other children who were in the household and could be characterised as 'excessive discipline'", the finding said.
Justice Brewer disagreed.
"The prior offending against other children in the household bears directly on Mr Mehrok's culpability for his later assault against his 14-week-old victim ... an uplift was warranted and that which was awarded by the Judge is modest," he wrote in the finding.
Mehrok's lawyers also said he should have received a greater credit for offering to plead guilty to manslaughter at the start of the initial murder trial.
The sentencing judge gave him a 15 per cent discount rather than 25 per cent for pleading at the earliest possible opportunity.
Mehrok offered to plea the day before the start of his first scheduled trial.
Justice Brewer said in his findings Mehrok was eligible for a discount and the 15 per cent given was appropriate.
Mehrok was 19 at the time of the offending and the sentencing judge Christine Gordon gave him a 5 per cent discount for his youth.
In the appeal, Mehrok's lawyers argued it should have been 15 per cent but Justice Brewer did not accept that argument.
"Discounts for youth often go hand in hand with discounts for remorse because remorse goes hand in hand with rehabilitation ... Mehrok was not entitled to a discount for remorse."
Justice Brewer also disagreed with the argument Mehrok should have received a greater discount for shortening the length of the legal proceedings.
One reason these were shortened was because some of Mehrok's admissions meant 11 witnesses did not need to be called. In his finding, Justice Brewer said any shortening of the trial was "incidental".
Mehrok's appealing lawyer also argued he should have received a larger discount for his personal circumstances than the 5 per cent he was given.
The personal circumstances included having little family support and being a considerable distance from his home in India.
In his finding, Justice Brewer disagreed and said the 5 per cent discount was adequate.
Overall Justice Brewer rejected the appeal of the sentence and the minimum sentence served.
"A minimum period of imprisonment is just what it says. It does not dictate how much of a person's sentence will be spent in custody. That is a matter for the Parole Board."