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Prasad v R

Prasad v R

Case [2020] NZCA 483 14 October 2020

Sentencing

Appeal

Minimum Period of Imprisonment

Causation

Remorse

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA116/2020
[2020] NZCA 483

BETWEEN	JAVED MOHAMMED PRASAD Appellant
AND	THE QUEEN Respondent

Hearing:	30 September 2020
Court:	Collins, Mallon and Ellis JJ
Counsel:	D S Niven for Appellant M R L Davie for Respondent
Judgment:	14 October 2020 at 9.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of 13 years’ imprisonment is quashed and substituted with a sentence of 10 years’ imprisonment.
DThe minimum period of imprisonment is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Prasad appeals a sentence of 13 years’ imprisonment imposed by the District Court at Auckland following pleas of guilty to three charges of importing into New Zealand a total of 7.88 kilograms of methamphetamine.[1] He also appeals an order that he serve a minimum period of imprisonment (MPI) of seven years’ imprisonment before he is considered eligible for parole.
[1]R v Prasad [2017] NZDC 27910 [Sentencing notes].
Mr Prasad was sentenced on 8 December 2017. His notice of appeal was not filed until March 2020. Mr Prasad has explained that he encountered difficulties in obtaining legal advice and legal aid. Although the delay in filing the notice of appeal was inordinate, the Crown acknowledges it has not been prejudiced by Mr Prasad’s delay. We accordingly grant Mr Prasad’s application to extend time for the filing of his appeal.

Background

Mr Prasad is a Canadian citizen. He arrived in New Zealand on 23 April 2017 and participated in a well-planned venture to import methamphetamine into New Zealand.
The first importation was between 3 and 7 May 2017. It involved Mr Prasad booking accommodation at an Auckland address using an alias. Mr Prasad received at that address a FedEx package from the United States, which contained a “designer lamp”. Between 8 and 11 May 2017, Mr Prasad broke open the lamp and removed 2.7 kilograms of methamphetamine.
The second importation occurred between 8 and 15 May 2017. During this time Mr Prasad booked accommodation at another address, using a different alias. Another “designer lamp” was to be delivered to that address from the United States. That consignment was, however, intercepted by the New Zealand Customs Service. On inspection, the lamp was found to contain 2.68 kilograms of methamphetamine.
The third consignment was from Canada. It was delivered to an apartment Mr Prasad was occupying in Auckland on 16 June 2017. A search warrant was executed at the apartment where Customs officers located 2.5 kilograms of methamphetamine inside the package from Canada. A number of cell phones, SIM cards, weighing scales and other evidence of drug dealing was also found in the apartment.
Mr Prasad was charged on 16 June 2017 and pleaded guilty on 3 November 2017.

Sentencing decision

Judge Ronayne adopted a starting point of 17 years’ imprisonment. This was based on the fact that Mr Prasad’s offending…

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 R

Details

AGLC: Prasad v R [2020] NZCA 483
Case: [2020] NZCA 483
Decision Date: 14 October 2020 at 9.00 am

CaseChat Overview and Summary

Mr Prasad appeals his sentence of 13 years' imprisonment imposed by the District Court, following his guilty pleas to three charges of importing a total of 7.88 kilograms of methamphetamine into New Zealand. The appeal is against both the length of the sentence and the imposition of a minimum period of imprisonment (MPI) of seven years. Mr Prasad's notice of appeal was not filed until March 2020, and he has explained that he encountered difficulties in obtaining legal advice and legal aid. The Crown has acknowledged it has not been prejudiced by the delay, and the Court grants Mr Prasad's application to extend the time for the filing of his appeal.

The Court considered the legal issues regarding the starting point for sentencing, the deductions made by the District Court, and the need for an MPI. Mr Prasad's counsel argued that the starting point adopted by the District Court was excessive and that the need for an MPI was not properly evaluated. The Crown submitted that the sentence imposed was stern but appropriate given the seriousness of the offending. The Court found that the starting point adopted by the District Court was influenced by outdated authorities and did not accurately reflect Mr Prasad's role in the offending. The Court also found that the imposition of an MPI was not properly justified, given Mr Prasad's age, lack of previous convictions, remorse, and low likelihood of reoffending.

The Court allowed Mr Prasad's appeal against sentence, substituting the sentence of 13 years' imprisonment with a sentence of 10 years' imprisonment and quashing the order for an MPI of seven years. The Court held that the sentence of 10 years' imprisonment without an MPI would satisfy the objectives of section 86(2) of the Sentencing Act, including holding Mr Prasad accountable, denouncing his conduct, deterring him and others from similar offending, and protecting the community from Mr Prasad.

Orders