Prasad v The the King - [2022] NZCA 588

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA247/2022
[2022] NZCA 588

BETWEEN	NIRAJ NILESH PRASAD Appellant
AND	THE KING Respondent

Hearing:	2 November 2022
Court:	French, Thomas and Mallon JJ
Counsel:	J R Rapley KC for Appellant B Hawes for Respondent
Judgment:	30 November 2022 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Prasad was convicted of murder following a High Court jury trial. The victim was his estranged wife’s new partner, a Mr Faiz Ali. Mr Prasad was sentenced by the presiding judge, Osborne J, to life imprisonment with a minimum period of imprisonment of eighteen and a half years (the MPI).[1]
[1]R v Prasad [2022] NZHC 1129 [Sentencing notes].
Mr Prasad now appeals his sentence.[2] The appeal relates solely to the length of the MPI which his counsel, Mr Rapley KC, contends was manifestly excessive. The imposition of a life sentence is not challenged.

Background

[2]Criminal Procedure Act 2011, ss 244 and 250.

Mr Prasad had been married to his wife, Ms Roy, for 18 years. They separated in August 2020 when he learnt that she was having an affair with Mr Ali. After Ms Roy told Mr Prasad she should leave him, Mr Prasad struck her on the side of her stomach and on her face near her eye, causing injuries that required medical treatment. He was charged with assault on a person in a family relationship and a protection order was issued against him.
Between August 2020 and the date of the murder, 21 February 2021, Mr Prasad posted abusive comments on a social media platform about Ms Roy and verbally attacked her at Mr Ali’s workplace. He also burgled Mr Ali’s house and stole personal items belonging to Ms Roy.
On 20 February 2021, he went to Mr Ali’s home. He was observed by Ms Roy taking a photo of her car which was parked outside. Later that day he was served by Mr Ali with a trespass notice.
The following day Mr Prasad told his son he was going to hurt or kill Mr Ali.[3] He armed himself with a hammer, a machete and a filleting knife as well as a pair of gloves and returned to Mr Ali’s property. He broke into Mr Ali’s apartment. He then lay in wait for several hours, leaving only briefly to refuel his car before returning to the apartment.
[3]There was evidence the phrase he used when speaking to his son in Hindi can mean either.
Mr Ali finished work at 7 pm. On his way home he called Ms Roy and was still on the phone to her when he entered the apartment. Within a very short time of his opening the door and going inside, she heard screaming and yelling. She collected her son and rushed to the apartment. On arrival they saw Mr Prasad’s bloodied gloved hand on the inside…

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 The the King

Details

AGLC: Prasad v The the King [2022] NZCA 588
Case: [2022] NZCA 588
Decision Date: 30 November 2022 at 3.30 pm

CaseChat Overview and Summary

The appellant, Niraj Nilesh Prasad, appealed against his sentence for the murder of his estranged wife's new partner, Mr Faiz Ali. The appeal focused on the length of the minimum period of imprisonment (MPI) of 18 and a half years. The court had to decide if the MPI was manifestly excessive. The appellant's counsel argued that the starting point of 18 years was too high, that the judge had double-counted aggravating factors, failed to discount for cultural matters, and erred in denying discounts for good character and remorse.

The court found that the primary focus of an appellate court is on the correctness of the end sentence rather than the methodology by which the judge arrived at it. The court agreed with the appellant that the judge departed from the two-stage approach by embarking on the second stage when it was not necessary. However, the court concluded that the MPI of 18 and a half years was within the range and not manifestly excessive. The offending in this case was more serious than in Vea v R, and the circumstances were very similar to the case of Christison v R. The court found that the level of premeditation was a significant aggravating feature, and the offending while on bail was another factor. The court was not persuaded that a discount should have been allowed for cultural matters or for remorse. The court concluded that it was not an error not to allow a discount for previous good character.

The appeal against sentence was dismissed.

Orders