Prasad v R
[2018] NZCA 537
•30 November 2018 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA384/2018 [2018] NZCA 537 |
| BETWEEN | NIKHAIL PRASAD |
| AND | THE QUEEN |
| Hearing: | 9 October 2018 |
Court: | Kós P, Woolford and Dunningham JJ |
Counsel: | A J Maxwell-Scott for Appellant |
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)
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].
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
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.
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.
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.
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 her work Mr Prasad became frustrated and left. However, he returned a number of times and a heated argument developed. In his frustration, he grabbed her by the neck and said “tell me the truth”.
Personal circumstances
Mr Prasad was 19 at the time of the offending and at the sentencing. He was enrolled at Auckland University of Technology (AUT) studying towards a Bachelor of Business Studies. He had received a scholarship of $3,000 per year for three years of tertiary study from Mainfreight Ltd as part of Mainfreight’s support of children of its staff.
The pre-sentence report explained that Mr Prasad had addressed his rehabilitative needs by completing a Living Without Violence programme and said that he had displayed “extreme remorse and insight into the offending”. It also referred to the fact that he had attended a restorative justice conference. The outcome of that conference was positive. It was noted that both parties had apologised for their contribution to the events that occurred and Mr Prasad had made, or arranged to make, reparation payments to the complainant, as well as a $1,000 payment for emotional harm.
The pre-sentence report writer noted that the contributing factors to the offending were impulsiveness, poor relationship skills and poor problem‑solving skills. However, his risk of reoffending was assessed as low.
Further evidence as to personal circumstances
Mr Prasad sought leave to adduce further evidence on appeal. That was not opposed by the Crown. The evidence was adduced primarily on the basis that it was updating the Court on events since sentencing. However, it also covered material that counsel submitted should have been produced at sentencing, but was not. We agreed to receive it on both these grounds.
The legal test
It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three‑step process addressing the guidance given in s 107. These steps are: [3]
(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.
Only if that threshold is met can the court move to consider the residual discretion under s 106.[4] There must be a “real and appreciable” risk that any given consequence will happen.[5] This standard recognises that the court is assessing the likelihood of something that may happen in the future.
Gravity of Mr Prasad’s offending
[3]A (CA747/2010) v R [2011] NZCA 328 at [22].
[4]Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
[5]DC (CA47/2013) v R [2013] NZCA 255 at [43].
In assessing the gravity of the offending the Judge took account of the fact that there were three separate incidents, which in totality warranted a starting point of 15 to 18 months’ imprisonment.[6] She took the threatening to kill offence as the lead offence and considered an aggravating feature of it was that the first assault had already been inflicted on the complainant.[7] She considered this made the threat more serious because it came after he had actually meted out violence to the complainant. She then discussed his guilty pleas, his youth, his remorse (as demonstrated through the restorative justice process), and the reparations made, as mitigating factors.[8] Taking all these factors into account she nevertheless concluded that the offending was “moderately serious offending”.[9]
[6]R v Prasad, above n 1, at [12].
[7]At [11].
[8]At [13]–[16].
[9]At [18].
Ms Maxwell-Scott, on behalf of Mr Prasad, submitted that the Judge was in error when she assumed that Mr Prasad had inflicted violence before sending the threats on Facebook and this lead her to overstate the seriousness of this aspect of the offending. The summary of facts had not identified whether the assault came before or after the threat and Mr Prasad’s evidence is that it came afterwards. This was supported by the fact the complainant did not take the threat seriously. Her responses, including “lol I’m not scared of you” and immediately asking whether he was coming over or not, demonstrate her lack of concern.
In addition, although the complainant’s views were relevant, Ms Maxwell‑Scott submitted the District Court did not have information on her views beyond the statement made shortly after the offending which focused on the physical impacts of the offending. To address this we were provided a letter from the complainant in which she acknowledges her role in precipitating the offending and says that she is finding it hard “to fully move on knowing that I’ve in a way impacted his future”, saying “we were both young and stupid and didn’t know how to handle bumps in a relationship”. The letter concludes by saying that Mr Prasad “deserves a second chance and I think the [s] 106 discharge without conviction will help him move forward from the stress that all this may have brought to him”.
Taking into account the early guilty plea, remorse, restorative justice, reparation and voluntary rehabilitation, Ms Maxwell-Scott submitted the overall gravity of the offending should be assessed as low. The offending was not premeditated, it occurred in the heat of the moment and Mr Prasad immediately regretted his actions. He was young at the time and this was his first serious relationship. He simply “fell victim to his own teenage emotions”, which he has now taken steps to address.
The Judge’s analysis of the seriousness of the offending, was unobjectionable given the information before her. We accept, as the Crown says, that the offending involved two incidents of relationship violence and an accompanying threat, and the sequence of events on the first day was not particularly material to the overall seriousness of the offending.
However, in addition to the matters considered by the Judge to reduce the seriousness of the offending, we also have the views of the complainant in this case which we set out.[10] The threats were not taken seriously by her, and she is now concerned that she had contributed to offending that has been over-penalised. We note that Mr Prasad and the complainant are no longer in a relationship and this is not a case of a complainant recanting because of pressure brought to bear on her. In all the circumstances, we assess the gravity of the offending as low to moderate.
Consequences
[10]See above at [14].
The approach to assessing consequences was explained in Iosefa v Police as follows:[11]
[34] … it is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.
[35] However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.
[11]Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 adopted in DC (CA47/2013) v R, above n 5, at [43].
Ms Maxwell-Scott advances a number of consequences of conviction for Mr Prasad, of varying likelihood and seriousness. Some are relatively speculative, such as Mr Prasad’s proposed travel to Australia. While his mother lives there, and suffered an adverse health event a year and a half ago, there is no evidence that there is a regular pattern of him travelling there, nor that she is dependent on him in any way. While, as he explains in his affidavit, he can no longer travel as of right to Australia, it is possible to apply for a visa with a character assessment. The expressed wish to move permanently to Australia and live with his mother in the future does not add anything to the assessment. His parents separated when he was two years old and, while he maintains contact with his mother, there is no evidence to suggest that a permanent move to Australia is anything more than a possibility.
Of more concern is the impact that a conviction has had on Mr Prasad’s education, career prospects and mental health as outlined in his affidavit and the psychiatrist’s report. None of this information was before the Judge.
We consider these three factors are inextricably linked. Mr Prasad has been depressed and suicidal since the charges were laid. This has had a demonstrable effect on his academic performance. He is now at the point where, if his mental health issues continue, he is unlikely to complete his tertiary education. While he attained passing grades in his first semester at AUT in 2017, the rest of his grades have been almost all failing. He has now been notified by AUT that he is academically “at risk”. He says “I do not feel the same enthusiasm in my education as I once did and this is largely due to my convictions. My convictions are a significant obstacle towards the future I have always dreamt and planned for myself”. He had hoped to be employed by Mainfreight, but he says he is worried that “if they become privy to my convictions they will not accept me as an employee”.
Prior to sentencing he attempted to overdose on pills but a family member intervened. His worsening depression and suicidal thoughts following conviction prompted him to contact mental health services. His psychiatrist’s report outlines Mr Prasad’s lack of motivation, poor concentration, initial insomnia and suicidal ideation. This has been compounded by Mr Prasad’s financial problems, including the $15,000 debt he owes his grandmother to pay for legal expenses. Mr Prasad’s father has terminated Mr Prasad’s part-time employment as a courier driver since the convictions citing “embarrassment to … our family name”, exacerbating the situation further.
The psychiatrist who assessed him considered that he was “high suicide risk” until his depressive symptoms improve. She concludes that the conviction has significantly affected Mr Prasad’s self-esteem. He has been prescribed medication (Citalopram and Zopiclone for depression and insomnia respectively).
The downturn in Mr Prasad’s mental health clearly began with the stigma of the charges and has been exacerbated by the convictions and the consequences they will have for him. His academic performance has plummeted and we consider his prospects of obtaining a professional qualification are severely impeded by the convictions. That in turn will have an obvious consequence for Mr Prasad’s career prospects.
We also consider there is a real and appreciable risk that he will face prejudice in applying for jobs as a result of his convictions. While we consider his father’s dismissal of him from part-time courier work to be an aberration, we do consider that the convictions, particularly for threatening to kill, will impact on Mr Prasad’s employment prospects, even in unskilled jobs. While such consequences will abate in time, that may be too late for Mr Prasad to achieve his full academic potential and therefore career potential.
In our view, there is not just a real and appreciable risk that Mr Prasad’s mental health will be affected by a conviction; this is an exceptional case where we have credible evidence that it has and continues to adversely affect his mental health. In our view, the consequences are not just likely to be serious, they are serious. The convictions have impacted on his self-esteem, his mental health, his relationship with his family, and his education and career prospects.
Proportionality
Under s 107 we must be satisfied that the consequences of a conviction would be “out of all proportion” to the gravity of the offending. Taking account of the further information we have, which was not before the District Court, we are satisfied that the consequences of conviction are disproportionate to the gravity of the offending.
While the offending, of itself, was moderately serious, its gravity is reduced in light of his youth, the various steps Mr Prasad has taken voluntarily to make amends to the complainant and to rehabilitate himself, and the complainant’s views on conviction.
The consequences for Mr Prasad’s life have been, and continue to be, serious. Mr Prasad continues to suffer the consequences of what, in hindsight, should be seen as behaviour born of an overwhelming naivety and immaturity.
We accept these consequences are out of all proportion to the gravity of the offending.
Discretion
Having established that the s 107 threshold has been met, we turn to whether the discretion should be exercised under s 106 to discharge. As has often been noted, it would be rare for an offender to pass through the s 107 gateway, but not be discharged.[12] This is not one of those rare cases. It is therefore appropriate to exercise that discretion in order to discharge Mr Prasad without conviction.
Result
[12]Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
The application to adduce further evidence is granted.
The appeal is allowed.
The convictions are quashed and the appellant is discharged without conviction.
Solicitors:
Crown Solicitor, Auckland for Respondent
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