Prasad v Police - [2017] NZHC 2071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-213 [2017] NZHC 2071

BETWEEN
SUNIL PRASAD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 and 28 August 2017

Appearances:

D Nairn for Appellant
C Howard (on 22/8/17) and I S Ko (on 28/8/17) for Respondent

Judgment:

28 August 2017

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

PRASAD v NEW ZEALAND POLICE [2017] NZHC 2071 [28 August 2017]

[1] Mr Prasad pleaded guilty in the District Court to 14 charges of accessing a computer system and thereby obtaining property by deception and without claim of right. On 13 June 2017, Judge Andrée Wiltens sentenced Mr Prasad to two years eight months imprisonment.1 Mr Prasad appeals against sentence on the basis that an error of process occurred in the District Court, and that this led to him receiving a sentence that was wrong in principle and manifestly excessive.

The offending

[2] The charges were laid as a result of a series of incidents that occurred between October 2014 and November 2015. During this period Mr Prasad obtained access to his employer’s computer system and used it to transfer funds into his own bank account under the guise of paying invoices that he had concocted. He then took steps to conceal the payments from his employer.

[3] The total amount that Mr Prasad obtained using this method was in the vicinity of $183,000. His employer was able to recover approximately $5,000 of this sum by withholding a final payment that was due to Mr Prasad when he ceased employment with the company. Mr Prasad also paid back the sum of approximately
$5,600 when his employer discovered what was happening. The ultimate loss was therefore approximately $172,000.

The argument on appeal

[4] The appeal was advanced principally because Mr Prasad feels aggrieved at what occurred in the District Court at the time of sentencing. When he appeared for sentence on 13 June 2017 his counsel, Mr Nairn, asked the Judge for an adjournment so that Mr Prasad could explore the possibility of attending a restorative justice conference with his employer. The Judge took the view that the mandatory restorative justice process did not apply in respect of a corporate complainant or victim. For that reason the Judge declined to grant him an adjournment and
proceeded to sentence Mr Prasad.

1 New Zealand Police v Prasad [2017] NZDC 12645.

[5] When pressed during the hearing of the appeal, Mr Nairn said that the restorative justice conference may have produced a positive outcome in the sense that Mr Prasad could have made an offer of reparation to his employer. This could have affected the end sentence he received because the payment of reparation is a mitigating factor, and the Judge may well have reduced the end sentence to reflect a meaningful offer of reparation.

[6] In order to deal with this concern, I adjourned the appeal for a week so that Mr Nairn could take further instructions from Mr Prasad as to whether he…

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 Prasad v Police

Details

AGLC: Prasad v Police [2017] NZHC 2071
Case: [2017] NZHC 2071
Decision Date: 28 August 2017

CaseChat Overview and Summary

Sunil Prasad appealed against his sentence in the New Zealand High Court, arguing that the District Court had made an error of process, resulting in a sentence that was wrong in principle and manifestly excessive. Prasad had pleaded guilty to 14 charges of accessing a computer system to obtain property by deception. He had obtained approximately $183,000 from his employer through various fraudulent means over a period of time, with a net loss to the employer of approximately $172,000.

The primary issue before the court was whether the District Court had erred in declining to grant an adjournment for Prasad to explore the possibility of attending a restorative justice conference with his employer. The court considered whether this alleged error of process led to a sentence that was manifestly excessive. Prasad's counsel argued that an offer of reparation made at the conference could have resulted in a more favourable sentence, as reparation is a mitigating factor.

The High Court found that the District Court did not err in declining the adjournment, as the mandatory restorative justice process did not apply in cases involving a corporate complainant or victim. The court also considered the aggravating factors of the offence, such as the total amount involved, the deliberate and repetitive nature of the theft, and Prasad's breach of trust as a senior employee. The court determined that a starting point of 45 months was within the available range, and that the sentence, with a 25% discount for entering guilty pleas, was not manifestly excessive.

The appeal against sentence was dismissed, and the original sentence of two years and eight months imprisonment was upheld.

Orders