IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-94

[2018] NZHC 1684

BETWEEN
MATTHEW WISEMAN

Appellant

AND

THE QUEEN

Respondent

CRI-2018-404-130

BETWEEN

SHIRNEET SUMEET PRASAD
Appellant

AND

THE QUEEN

Respondent

Hearing: 18 June 2018

Counsel:

E Priest for Appellant Wiseman J D Munro for Appellant Prasad B A Keown for Respondent

Judgment:

10 July 2018

Reissued:

10 July 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 July 2018 at 9:00 am pursuant to Rule 11.5 High Court Rules.

Judgment was recalled and reissued to correct an arithmetical error in [70].

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

WISEMAN & PRASAD v R [2018] NZHC 1684 [10 July 2018]

Introduction

[1] Mr Wiseman and Mr Prasad participated, with two others, in an attack on Mr Simpson, during which Mr Simpson was grievously injured. Both pleaded guilty to a charge of causing grievous bodily harm with intent to do so.1 The maximum penalty is 14 years’ imprisonment. Mr Wiseman was sentenced to three years and nine months’ imprisonment and Mr Prasad was sentenced to two years and seven months’ imprisonment, the sentencing Judge being Judge Treston.2

[2] Mr Wiseman and Mr Prasad now appeal their sentences. They say they are manifestly excessive.

[3] My task is to determine whether, in each case, there is an error in the sentence such that a different sentence should be imposed.3 There will be such an error if a sentence is manifestly excessive.4

Background

[4] Mr Prasad was the part-owner of a BMW motor vehicle. He and the other owner listed the vehicle for sale on Trade Me. Mr Simpson, with the assistance of an associate, bought the vehicle. It was delivered to Mr Simpson at his home address by Mr Prasad and the other owner. Mr Simpson told them arrangements had been made to transfer the payment for the vehicle electronically to their account through overnight banking. Mr Prasad and the other owner left the BMW with Mr Simpson, believing his assurances as to payment. Not long afterwards, they saw that the BMW had been re-listed on Trade Me at a much reduced price for an urgent sale. Mr Prasad immediately reported this to the Police, but was told that nothing could be done. There are text messages which indicate that Mr Prasad was partly responsible for then

1      Crimes Act 1961, s 188(1). I note the Crown Charge Notice refers under the heading “Charge 1” to “Wounding with intent to cause GBH”. The charge itself is “caused grievous bodily harm to Craig Simpson intending to cause him grievous bodily harm”.   Wounding is an option under     s 188(1), as is causing grievous bodily harm. The use of “wounding” is incorrect and the computer record should be corrected.
2      R v Wiseman & Prasad [2018] NZDC 5138.
3      Criminal Procedure Act 2011, s 250(2).
4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

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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 Wiseman v R

Details

AGLC: Wiseman v R [2018] NZHC 1684
Case: [2018] NZHC 1684
Decision Date: 10 July 2018

CaseChat Overview and Summary

The appellants, Matthew Wiseman and Shirneet Sumeet Prasad, were convicted of causing grievous bodily harm with intent in relation to an attack on Mr Simpson. They appealed their sentences, contending that they were manifestly excessive. The High Court was required to determine whether the sentences were so excessive that they constituted an error warranting a different sentence. In relation to Mr Wiseman, the Court found that the Judge had made several errors in sentencing, including misapplying the Taueki precedent and miscalculating the final sentence. The Court held that an appropriate starting point would have been three to three-and-a-half years’ imprisonment and that a discount of 20 per cent for the plea of guilty should have been calculated on the provisional sentence. The Court fixed the appropriate sentence for Mr Wiseman as three years and six months’ imprisonment. In relation to Mr Prasad, the Court found that the Judge had failed to give proper weight to the distinction between the sentencing regimes for primary and secondary offenders. The Court held that the appropriate starting point for Mr Prasad was no more than two years and nine months’ imprisonment and that the Judge should have given him greater discounts for his personal mitigating factors. The Court fixed the appropriate sentence for Mr Prasad as one year and 10 months’ imprisonment, which was commuted to 11 months’ home detention, making allowance for the time Mr Prasad had already spent in custody.

Orders