Prasad v R

Case [2018] NZCA 537


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA384/2018
 [2018] NZCA 537

BETWEEN

NIKHAIL PRASAD
Appellant

AND

THE QUEEN
Respondent

Hearing:

9 October 2018

Court:

Kós P, Woolford and Dunningham JJ

Counsel:

A J Maxwell-Scott for Appellant
B H Dickey and D R Green for Respondent

Judgment:

30 November 2018 at 10.00 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is granted.

BThe appeal is allowed.

CThe convictions are quashed and the appellant is discharged without conviction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

  1. Mr Prasad pleaded guilty to two charges of male assaults female and one of threatening to kill.  At sentencing, Judge Cunningham refused an application for discharge without conviction.[1]  However, having regard to a range of factors, including his youth, the rehabilitation he had undertaken, and the fact he had made amends with his complainant, she imposed no further penalty.[2]

    [1]R v Prasad [2018] NZDC 11681.

    [2]At [19].

  2. On appeal, Mr Prasad contends that he ought to have been discharged without conviction.  He says the Judge:

    (a)placed too much weight on the gravity of the offending and made an error in her summary of the factual features of the offending;

    (b)under-estimated the consequences of a conviction on him as a young first‑time offender with good character; and

    (c)was not made aware of the complainant’s views on him being discharged without conviction.

He also says there were consequences of a conviction that were not put before the Court at sentencing, and which should be taken into account on appeal.  These include the loss of his job, effects on his academic performance and impacts on his mental health.

The offending

  1. In March 2017, when Mr Prasad was 19, he was in a relationship with the complainant.  She was his first serious girlfriend and they had been together for about two months.

  2. On 19 March 2017, Mr Prasad and the complainant were having an argument via Facebook messages regarding her contact with a former boyfriend.  She admitted to recent sexual contact with him which prompted Mr Prasad to become angry and send her these messages:

    I’m fkn coming

    Be fkn [ready]

    I will fkn kill u this time

    Say ur final goodbye to ur family

She replied “lol I’m not scared of you” and “[i]s that how you fucking react to shit”.  She then immediately asked him whether he was still coming over to see her.  Mr Prasad confirmed he was and he subsequently drove to her place.

  1. When he arrived they sat in his car outside her house where they began arguing again.  This escalated to physical violence where he punched her in the stomach so hard that she had difficulty breathing.  He then also broke her mobile phone and grabbed her gold necklace and broke it.

  2. Four days later, on 23 March 2017, Mr Prasad went to the complainant’s workplace, again to discuss issues they were having in their relationship.  When she was unable to leave…

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Prasad v R [2018] NZCA 537
Case
[2018] NZCA 537
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Nkhail Prasad against his convictions for male assaults female and threatening to kill. The appeal focused on whether Prasad should have been discharged without conviction. Prasad argued that the judge had placed too much weight on the gravity of the offending, underestimated the consequences of a conviction on him, and had not been made aware of the complainant's views on him being discharged without conviction. The appeal also highlighted consequences of a conviction that were not presented at sentencing, including the loss of his job, effects on his academic performance, and impacts on his mental health.

The legal issues the court was required to decide involved the three-step process for considering a discharge without conviction under section 106 of the Sentencing Act 2002. The steps were: (a) identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; (b) identification of the direct and indirect consequences of conviction; and (c) a determination of whether those consequences are "out of all proportion" to the gravity of the offence. The court also had to consider the residual discretion under section 106.

The court's reasoning and outcome involved assessing the gravity of Prasad's offending, which was found to be low to moderate. The court accepted that the offending involved two incidents of relationship violence and an accompanying threat, and that the sequence of events on the first day was not particularly material to the overall seriousness of the offending. The court also considered the consequences of conviction for Prasad, finding that they were serious and disproportionate to the gravity of the offending. The court concluded that the consequences of conviction were out of all proportion to the gravity of the offending and, therefore, appropriate to exercise the discretion under section 106 to discharge Prasad without conviction.

The final orders included granting the application to adduce further evidence, allowing the appeal, quashing the convictions, and discharging Prasad without conviction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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