Prasad v R [2022] NZCA 588 (30 November 2022)

Last Updated: 5 December 2022

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

• [1] 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]
• [2] 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

• [3] 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.
• [4] 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.
• [5] 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.
• [6] 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.
• [7] 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 door handle. They fled and drove to get the police. By the time the police arrived, it was too late. Mr Prasad had gone and Mr Ali was dead.
• [8] The Judge found on the evidence that Mr Prasad had commenced his attack on Mr Ali almost immediately after the latter had entered his home. The attack began in the hallway a short distance from the door and continued in the lounge/bedroom and onto Mr Ali’s bed.^[4]
• [9] Mr Prasad used both the filleting knife and the hammer in the attack. Mr Ali was stabbed at least seven times and received more than 20 hammer blows to his head. The entire right side of his skull was shattered and demolished, demonstrating what the Crown alleged was a ferocious, sustained and brutal attack.
• [10] The injuries sustained by Mr Ali included defensive injuries to his arm and hand, but the pathology report found that the significant fatal injuries were the hammer blows inflicted while he was lying prone on his bed and unable to defend himself.
• [11] Before leaving the property, Mr Prasad stopped to smash the windows of Mr Ali’s car. He also spoke to a neighbour and told them that Mr Ali was having an affair with his wife.
• [12] Police arrested Mr Prasad shortly thereafter. When interviewed he gave various explanations for his conduct, including claims that he had not gone to the address to harm either Mr Ali or Ms Roy but had snapped on overhearing them engaged in sex talk on the phone. He also claimed it was Mr Ali who had been violent towards him first.
• [13] Mr Prasad pleaded not guilty to the murder charge. After a five-day trial, the jury found him guilty.

Sentencing in the High Court

• [14] At sentencing it was common ground that a sentence of life imprisonment was inevitable.^[5] It was also common ground that s 104 of the Sentencing Act 2002 applied.^[6]
• [15] Section 104 was enacted in 2003 in response to widespread public concern about the level of sentencing in murder cases. Its purpose is to identify the worst types of murder and to provide, in respect of those murders, that the Court must impose an MPI of at least 17 years unless satisfied it would be manifestly unjust to do so.^[7]
• [16] By virtue of s 104(1)(c) and (e), two of the categories that attract the presumptive MPI of at least 17 years are murders involving unlawful entry into a dwelling house and murders committed with a high level of brutality. The Judge held that the murder committed by Mr Prasad fell within both of those categories and therefore s 104 was engaged.^[8]
• [17] Having confirmed that s 104 applied, the Judge then turned to consider whether an MPI of 17 years or more was justified in the circumstances. To answer that question, he said he needed to consider Mr Prasad’s degree of culpability and measure that against the standard range of murders, as well as any aggravating or mitigating circumstances attaching to the offending or to Mr Prasad personally.^[9]
• [18] As regards comparator cases, the Judge said the standout was a decision of this Court in Christison v R where the MPI starting point range for a murder with similar features was held to be 18 to 20 years.^[10]
• [19] The Judge said he was satisfied that, in Mr Prasad’s case, a starting point of 18 years’ imprisonment was appropriate when his culpability was compared to the standard range of murders. In coming to that conclusion, he said he had also had regard to the policy underlying s 104 that the presence of one or more of the s 104 factors means the murder is sufficiently serious to justify an MPI of at least 17 years.^[11]
• [20] The Judge went on to identify the specific aggravating features of Mr Prasad’s offending and adjusted the starting point on account of those features from 18 to 18 and a half years’ imprisonment.^[12] The aggravating features identified were:

(a) the fact the murder was committed while Mr Prasad was on bail following the August 2020 assault on Ms Roy;^[13]

(b) several elements of premeditation;^[14]

(c) unlawful entry into the victim’s home;^[15] and

(d) the use of several weapons with a high level of brutality.^[16]

• [21] As regards mitigating factors, the Judge rejected a submission made on behalf of Mr Prasad that his culpability was diminished by provocative words in the telephone conversation between Mr Ali and Ms Roy.^[17] Having heard the evidence, the Judge said he was satisfied Mr Prasad had gone to the apartment armed with lethal weapons with the intention of doing violence and that the attack was motivated by a determination that Mr Ali and Ms Roy would not enjoy a relationship.^[18] The Judge had “no doubt” that the frenzied nature of the attack was the product of Mr Prasad’s building anger and jealousy, and not from some triggering event in the apartment as claimed by Mr Prasad to the police.^[19]
• [22] The Judge also rejected a further submission that credit was available for remorse and Mr Prasad’s previous good character.^[20] The Judge found that although Mr Prasad had expressed some regret, it did not amount to remorse at a level that should influence his sentence, and that any discount Mr Prasad might otherwise have been entitled to for good character had been lost due to the earlier offending against his wife.^[21]
• [23] The Judge then considered whether an MPI of at least 17 years would be manifestly unjust and found there was nothing in the circumstances of Mr Prasad’s case that would lead to such a finding. He concluded the MPI of 18 and a half years would not be manifestly unjust and sentenced Mr Prasad accordingly.^[22]
• [24] In addition to sentencing Mr Prasad on the murder charge, the Judge also imposed a term of imprisonment of three months for the assault on Ms Roy to which Mr Prasad had pleaded guilty.^[23]

Arguments on appeal

• [25] In support of his contention that an MPI of 18 and a half years was manifestly excessive, Mr Rapley submitted the Judge had not applied or not correctly applied the two-stage approach recommended by this Court in Williams v R^[24] and as a result had been led into error.
• [26] Mr Rapley advanced the following specific grounds of appeal:

(a) the MPI starting point of 18 years was too high in comparison to other similar cases;

(b) the Judge double counted aggravating factors;

(c) the Judge erred in failing to allow a discount for matters raised in a cultural report; and

(d) the Judge was wrong to deny discounts for good character and remorse.

Analysis

• [27] In Williams, this Court suggested (but did not mandate) a two-stage approach to determining what is a justified MPI in s 104 cases.
• [28] First, the sentencing judge should consider the degree of culpability of the instant case in relation to that involved in the standard range of murders. In the course of doing so, the sentencer should take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they are present, any other applicable aggravating factors and all those in mitigation. In addition, the sentencing judge must also have regard to the policy underlying s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify an MPI of not less than 17 years. This latter element was said to be necessary to ensure that effect is given to the legislative policy, which requires courts at times to impose higher MPIs than they might have done had s 104 not been enacted.^[25]
• [29] The first stage thus involves the judge determining what MPI is justified in all the circumstances of the case, including those of the offender.^[26]
• [30] If the outcome of the first stage is an MPI of less than 17 years, the sentencing judge must then go on to consider whether the MPI mandated by s 104 (17 years) would be manifestly unjust.^[27]
• [31] If however the outcome of the first stage is an MPI of 17 years or more, then that is the MPI which must be imposed. In other words, the judge is not required to embark on the second stage.
• [32] It will be apparent from our account of the sentencing decision that the Judge was cognisant of the Williams two-stage approach and purported to follow it. However, he departed from it by embarking on the second stage when that was not necessary. More importantly, there was an element of double counting in that the brutality of the murder and the home invasion aspect were relied on to both justify an MPI starting point of 18 years and to adjust it upwards by six months.
• [33] However, as is well established, 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.^[28]
• [34] For the reasons that follow, we have concluded that an MPI of 18 and a half years was available to the Judge in the circumstances of this case and that appellate intervention is not warranted.
• [35] First, we do not accept that a starting point of 18 and a half years prior to consideration of personal mitigating factors is out of kilter with the comparator cases.
• [36] In arguing to the contrary, Mr Rapley cited the decisions of Vea v R^[29] and R v Scott,^[30] where starting point MPIs of 17 and a half years and 17 respectively were imposed for what Mr Rapley described as similar murders.^[31] He further submitted that Christison, the case relied on by the Judge, was distinguishable because it involved three s 104 factors and not two as in this case. In Christison, in addition to unlawful entry and brutality, the murder also came within another s 104 category, a murder that involved calculated or lengthy planning.^[32]
• [37] However, in our assessment, the offending in this case was more serious than in Vea which, unlike Scott, was a decision of this Court. As for Christison, where the starting point range was said to be between 18 and 20 years, we agree with the Judge that the circumstances were very similar to this case. Mr Prasad’s offending, unlike that of Mr Christison, may not have been held to fall within the calculated planning category, but the level of premeditation was on the facts actually very similar to the level in Christison. As noted in Vea, in cases where there is a fine line between whether the case falls within one of the categories or not, that should not affect matters.^[33] What matters is that the level of premeditation was a significant aggravating feature. Offending while on bail was less significant but nevertheless a further factor.
• [38] As regards personal mitigating factors, we are not persuaded that a discount should have been allowed for cultural matters. As submitted by Mr Hawes for the Crown, the cultural report essentially identifies responses to a failed marriage that are common among many cultures and not just the Indian community, such as feelings of despair, anger, shame, depression and a sense of hopelessness. In so far as the report also mentions that in the Indian community cases of marital infidelity by a wife are viewed as a direct attack on the male ego and a husband’s manhood, we do not accept that is something that can properly be taken into account as reducing culpability for murder.
• [39] In relation to remorse, Mr Rapley drew our attention to the statement in the pre-sentence report that Mr Prasad presented as genuinely remorseful. However, it is evident from reading the report in its entirety that he blames Ms Roy for what happened. Statements to the report writer that he had no memory of the murder and that he was not harassing or threatening his wife or Mr Ali and could not understand why he had received a trespass notice also suggest a strong element of minimisation. We therefore do not accept it was an error to fail to give a discount for remorse.
• [40] The final issue is whether the Judge was wrong to make no allowance for previous good character. At the time of the sentencing, Mr Prasad was 39 years of age. He had no previous convictions. Three references from extended family members before the Judge indicated he had been the backbone of his family and was highly regarded. We accept that other judges in the exercise of their discretion may have given a discount for previous good character, but in the circumstances of this case it cannot be said it was an error not to. Mr Prasad’s behaviour towards Ms Roy over the previous six-month period reflects poorly on his character and was a matter the Judge was entitled to take into account.
• [41] We conclude that in all the circumstances the MPI of 18 and a half years was within range and not manifestly excessive.

Outcome

• [42] The appeal against sentence is dismissed.

Solicitors:
Crown Solicitor, Christchurch for Respondent

---

^[1] R v Prasad [2022] NZHC 1129 [Sentencing notes].

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

^[3] There was evidence the phrase he used when speaking to his son in Hindi can mean either.

^[4] Sentencing notes, above n 1, at [14].

^[5] Sentencing notes, above n 1, at [5].

^[6] At [40].

^[7] Desai v R [2012] NZCA 534 at [52].

^[8] Sentencing notes, above n 1, at [40]–[42]. Under s 104(1)(b), another of the categories of murder attracting the presumptive non-parole period is a murder that involved calculated or lengthy planning. While the Judge was satisfied there had been significant premeditation in this case and not just on the day of the attack, he also found it did not reach the level of premeditation required to come within s 104: at [23] and [47(b)].

^[9] Sentencing notes, above n 1, at [43], citing R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA).

^[10] Sentencing notes, above n 1, at [45]; and Christison v R [2017] NZCA 168 at [34].

^[11] Sentencing notes, above n 1, at [46].

^[12] At [47]–[48].

^[13] Sentencing Act 2002, s 9(1)(c).

^[14] Section 9(1)(i).

^[15] Sections 9(1)(b) and 104(1)(c).

^[16] Sections 9(1)(a) and 104(1)(e).

^[17] Sentencing notes, above n 1, at [38] and [49].

^[18] At [22].

^[19] At [24].

^[20] At [29].

^[21] At [34]–[35] and [50]–[51].

^[22] At [46]–[48].

^[23] At [52].

^[24] R v Williams, above n 9, at [52].

^[25] At [52].

^[26] At [53].

^[27] At [54].

^[28] Kumar v R [2015] NZCA 460 at [81].

^[29] Vea v R [2020] NZCA 68 at [17].

^[30] R v Scott [2016] NZHC 290 at [63].

^[31] In Scott the ultimate MPI was 19 years but that was because of other offences.

^[32] Sentencing Act, s 104(1)(b).

^[33] Vea v R, above n 29, at [13].