Narayan v The Queen - [2020] NZCA 109

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA580/2019
[2020] NZCA 109

BETWEEN	DEO NARAYAN Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2020
Court:	French, Dobson and Moore JJ
Counsel:	A S R Kashyap for Appellant A Markham for Respondent
Judgment:	22 April 2020 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

On 8 October 2019, Mr Narayan was sentenced by Judge Moses in the Manukau District Court to 11 months’ home detention on seven charges of obtaining a pecuniary advantage by deception and without claim of right.[1]
[1]R v Narayan [2019] NZDC 20006.
His convictions followed findings of guilt by a jury six months earlier.
Mr Narayan appeals that sentence. He claims that insufficient credit was given for his repayment of the funds he fraudulently received as a consequence of his offending.

Background facts

Mr Narayan was engaged by the Tokelau Congregational Christian Church (“the Church”) to obtain certain building and resource consents to permit them to continue to operate at a residential property in Otara.
The Church is a charitable organisation established in 1999. In 2015 the Church was advised by the local council that its operations were in breach of the District Plan (it was operating at a residential address without resource consent). Unless a resource consent was obtained the activities of the Church would have to cease.
A member of the congregation introduced Church leaders to Mr Narayan. He represented to them that he was a qualified builder who could, for a fee, resolve the Church’s issues with the council. He said he had contacts at the council and produced a business card which described him as the director of Narayan Investments Limited. In fact, and unbeknownst to the Church, he was an undischarged bankrupt in receipt of a benefit.
Over a period of eight months between 23 July 2015 and 22 March 2016 he received a total of $50,840.70 from the Church. This followed the Church’s payment on seven fraudulent invoices and other claims which he submitted to the Church purporting to relate to chargeable activities he had undertaken towards obtaining a resource consent. He spent the money on himself. This included regular payments to a TAB account. The funds which he took had been raised by members of the Church’s congregation.
In fact, Mr Narayan did nothing to advance the Church’s interests and at his trial blamed the Church’s minister and/or the accountant.
Mr Narayan was arrested on these charges in January 2018. Shortly before the April 2019 trial he repaid the amount he had taken. That payment took no account of any accrued interest.
In its victim impact statement, the Church recorded that although it was obviously relieved the funds had been repaid, it was apparent Mr Narayan took advantage of their trusting nature. The Church members had regarded him as an answer to their prayers. But he betrayed their trust and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Narayan v The Queen

Details

AGLC: Narayan v The Queen [2020] NZCA 109
Case: [2020] NZCA 109
Decision Date: 22 April 2020 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Deo Narayan against his sentence imposed by the Manukau District Court for seven charges of obtaining a pecuniary advantage by deception. Narayan was sentenced to 11 months’ home detention. The central issue before the Court was whether the sentencing Judge erred in not giving sufficient credit for Narayan’s repayment of the fraudulently obtained funds. The Court held that the Judge appropriately applied a 10 per cent discount for the repayment, along with a 10 per cent discount for Narayan’s health issues. The Court found that the overall sentence of 11 months’ home detention was within the available sentencing range. The appeal was dismissed, affirming the original sentence.

Orders