R v Prasad - [2014] NZHC 3014

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY SECTION 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-22 [2014] NZHC 3014

THE QUEEN

v

NARAYAN PRASAD

Hearing: 28 November 2014

Counsel:

K S Grau for Crown
M J Phelps for defendant

Sentence:

28 November 2014

SENTENCING NOTES OF DOBSON J

[1] Mr Prasad, you have been found guilty at trial of:

(a) three charges of inducing a girl under the age of 12 to do an indecent act upon you (two of those being representative charges);1

(b) one charge of indecently assaulting a girl under the age of 12;2 and

(c) one charge of sexual violation by rape.3

1      Crimes Act 1961, s 133(1)(c).
2      Section 133(1)(a).
3      Section 128(1)(a).

R v PRASAD [2014] NZHC 3014 [28 November 2014]

[2] I note at the outset that you were sentenced on these and a larger number of related charges in 2012. The convictions that formed the basis of that sentence were overturned on appeal, and after two retrials you have now been convicted of a smaller subset of the earlier convictions. I have only paid minor attention to the sentence imposed on you in 2012 in order to uphold the principle of consistency in
sentencing.4 Otherwise I have approached the sentencing exercise entirely afresh.

Circumstances of offending

[3] Now as to the circumstances of the offending, there were three victims of your offending. All were aged under 12 at the time of the offending against them. They all knew and trusted you.

[4] First, JW. Over more than two years between 1978 and 1980 you induced JW to touch and to suck your penis on multiple occasions. It was especially degrading because you held her head, forcing her to gag, and you ejaculated into her mouth. At the time she was most likely aged between about seven and nine years old. That offending took place in your house and at a nearby beach.

[5] The second complainant, I will call BW. On a single occasion with her between 1980 and 1985 you induced BW to stroke your penis. At the time she was aged between six and 11 years old and the offending took place on the couch at your home.

[6] Third, the youngest of the complainants, I will call AB. On a single occasion between 1995 and 1997 you indecently assaulted AB by kissing her and inserting your tongue into her mouth. At the time she was aged between four and seven years old. On another occasion you raped AB in a bedroom at your house. Her enduring memory is that it was very painful. You left her, in some discomfort, to clean herself up and go to bed. She was just six years old or thereabouts.

[7] You continue to deny that any of this offending occurred, but you must understand by now that a jury has found you guilty on these charges. Your denial is

4…

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 R v Prasad

Details

AGLC: R v Prasad [2014] NZHC 3014
Case: [2014] NZHC 3014
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of R v Prasad involved the defendant, Narayan Prasad, who was convicted of multiple charges of sexual offending against children under the age of 12. The legal issues before the court included the appropriate sentencing for the defendant, taking into account the aggravating and mitigating features of the offences, as well as the purposes and principles of sentencing. The court was required to determine a starting point for the sentence, uplift for the totality of the offending, and whether a minimum period of imprisonment should be imposed.

The court began by outlining the nature and circumstances of the offending, which involved three victims under the age of 12. The court then examined the aggravating and mitigating features of the offending, ultimately determining that there were two aggravating features to a high degree, and two others to a moderate and mild degree respectively. The court considered comparable cases and determined that the offending placed the defendant towards the upper end of band two of the bands in R v AM, attracting starting points between seven and 13 years' imprisonment. The court decided on a starting point of 10 years and 6 months for the rape conviction and a starting point of three years' imprisonment for the other convictions, which would be served concurrently.

In terms of personal factors, the court found that the defendant was not eligible for a discount for lack of relevant convictions or previous good character, but also decided not to uplift the sentence for any previous convictions. The court further considered the defendant's ill health but found that it could be adequately managed in prison. Finally, the court decided not to impose a minimum period of imprisonment.

The court sentenced the defendant to 11 years and 6 months' imprisonment on the count of sexual violation by rape, and three years' imprisonment on the four counts of indecency, to be served concurrently. The defendant would serve a maximum of 11 years and 6 months in prison.

Orders