R v Prasad [2012] NZHC 2891 (2 November 2012)

Last Updated: 6 November 2012

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

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-032-004065 [2012] NZHC 2891

THE CROWN

v

NARAYAN PRASAD

Counsel: K S Grau and S A H Bishop for Crown

G R Fulton for Prisoner

Sentence: 2 November 2012

_{NOTES ON SENTENCE OF COLLINS J}

Introduction

[1] Mr Prasad, you appear for sentence on 31 counts of sexual offending against three victims. All but two of your convictions relate to offences committed when the victims were under the age of 12.

[2] There are four preliminary points I wish to make:

(1) I record that you have told the author of the pre-sentence report that you intend to appeal. That is your right. The fact you intend to

_{appeal does not impact on the sentence that I am going to impose.}

R V PRASAD HC WN CRI-2011-032-004065 [2 November 2012]

(2) You continue to deny any wrongdoing. From my perspective it is clear the complainants gave compelling evidence which the jury accepted in relation to all but one count, which was distinguishable from the other counts.

(3) Sentencing you poses a number of difficult challenges. Your counsel has on a previous occasion advised the Court that you were warned that you face a sentence of ten years’ imprisonment. The Crown recommends a prison sentence that is almost twice that term. This disparity highlights the difficulties which your case poses when it comes to sentencing.

(4) I have received and considered the victim impact statements prepared by your three victims. It is clear that your offending has had a profoundly adverse effect upon their lives.

[3] In sentencing you I shall:

(1) briefly explain your offending;

(2) explain the methodology I propose to adopt; (3) set the starting point;

(4) examine what changes if any need to be made to the starting point; (5) explain why a minimum period of imprisonment is justified; and (6) explain the end sentence.

[4] The written copy of my sentencing notes will contain a number of footnote references to cases and legislative provisions. I shall not refer to those footnotes during the course of this sentencing hearing.

Your offending

[5] Your offending against JW started when she was a young girl visiting a property that you and your wife rented in Wellington. You indecently assaulted JW. Your offending against JW escalated after you and your wife moved to Petone. There you induced JW to do indecent acts upon you, you raped JW and on one occasion you sodomised her. She was still a young girl, aged seven to nine years when all this offending occurred. Your final offence against JW occurred when you were living at Stokes Valley. JW was attending intermediate school. You raped her on the evening of a school disco and dropped her off at the disco in a bloodied and distraught state.

[6] Most of your offending against BW occurred at your Stokes Valley home. Some offending also occurred at Lake Ferry. You repeatedly induced BW to perform indecent acts on you. You sexually violated her and on one occasion you indecently assaulted her.

[7] The third of your victims is AB. You raped her when she was a young girl. It is thought she was approximately six years old when you first raped her. You have been convicted of raping AB on four occasions. You have also been convicted of sexually violating AB and of having her perform an indecent act upon you.

Sentencing methodology

[8] There is some logic to me applying cumulative sentences in relation to the worst offending against the three complainants. The logic of that approach is that it gives specific recognition to your worst offending against each complainant. However, the difficulty with that approach is that if I apply orthodox sentences for the worst of your offending against each complainant I would inevitably end up with an initial starting point in excess of 26 years’ imprisonment. A sentence of that magnitude would be totally excessive and would require a significant reduction to produce a sentence that was a proportionate response to your offending and which achieved the principles contained in the Sentencing Act 2002. Reducing the starting

point would involve allocating unrealistically low sentences to your most serious offending against one or more of the complainants.

[9] Accordingly, I propose to set a starting point in relation to the four rapes of AB which, from a sentencing perspective I will treat as being the lead offences. I will then impose concurrent sentences for your other offending.

Lead offences

[10] The rapes you committed against AB were particularly serious. Those crimes carried a maximum penalty of 20 years’ imprisonment.1 The appropriate guideline for this offending is R v AM2 which applies to all sentencing exercises conducted after 31 March 2010.3 The application of the case of AM does not offend against prohibitions in the Sentencing Act 2002 and the New Zealand Bill of Rights Act

1990 regarding retrospective penalties.4

[11] In my judgement your offending against AB falls within the lower end of band four of AM and therefore merits a starting point of 16 years’ imprisonment. The Court of Appeal has held this band applies to cases featuring at least two or more serious aggravating features, and is particularly appropriate for prolonged offending, and offending against children. Here I have considered the following factors to be important:

(1) the age and vulnerability of AB;

(2) your offending involved a gross breach of trust; (3) the number and seriousness of the charges;

_{(4) the planning and threats associated with your offending; and}

1 _{Crimes Amendment Act (No. 3) 1993.}

2 _{R v AM [2010] NZCA 114, [2010] 2 NZLR 750.}

3 _{At [125]-[127], affirmed in A (CA428/10) v R [2011] NZCA 92 at [8].}

4 See R v W (2006) 23 CRNZ 531 (CA) at [27]-[29], applying Morgan v Superintendent, Rimutaka

Prison [2005] NZSC 26, [2005] 3 NZLR 1.

(5) the very serious harm done to AB which is very evident from her victim impact statement read to the Court this morning.

[12] I therefore adopt a starting point of 16 years’ imprisonment.

[13] Before turning to other features that might influence what your final sentence should be, I wish to refer to your offending against JW and BW.

[14] The worst of your offences against JW were the rapes you committed against her when she was a young girl and your sodomising of her.

[15] At the time you offended against JW, rape carried a maximum penalty of

14 years’ imprisonment. The Court of Appeal authority applying that maximum shows that rape of a young girl during the late 1970s and early 1980s could attract a starting point of up to seven years’ imprisonment.5 If sentencing you only in relation to the crimes against JW I would take a starting point of seven years’ imprisonment for your convictions of having raped JW.

[16] The worst of your offending against BW concerned the unlawful sexual connection count. At the time that offending carried a maximum penalty for that crime of 14 years’ imprisonment.

[17] This offending was comparatively less serious both in nature and in circumstances, BW having been older at the time. However, there are still aggravating factors. These include the vulnerability of BW and the fact that your offending caused BW considerable indignity (you offended against her on her 18th

_birthday).

5 R v Pawa [1978] 2 NZLR 190 (CA) at 192 and R v Pui [1978] 2 NZLR 193 (CA), affirmed in

R v KJB [2007] NZCA 292 at [36]-[37]. Nooana v R [2011] NZCA 501 at [7] and

M (CA330/2011) v R [2012] NZCA 53 at [20]. See also R v Clark [1987] 1 NZLR 380 (CA) at

383, in which the Court of Appeal held that an appropriate starting point for a rape occurring around the mid-1980s with no aggravating features would be five years.

[18] After consulting with several cases, I would, if sentencing you only in relation to the offences against BW, have adopted a starting point of five years’ imprisonment.6

Totality

[19] Having adopted a starting point of 16 years’ imprisonment I need to decide what alterations should be made to that starting point to ensure it is proportionate to the totality of your offending. Your offending spanned 24 years, during which time sentencing levels changed significantly. Previous cases involving similar offending can assist, but there are few cases as equally serious and cross-generational as yours.

[20] I observe:

(1) All of the offending against JW, and all but one of the charges against BW, occurred when the maximum penalty for the most serious offences was 14 years.

(2) All of the offending against AB, while plainly subject to the Court of Appeal guidelines in R v AM, occurred over a decade before that judgment was delivered.

[21] Bearing these factors in mind, I have reflected on whether or not I should amend the starting point which R v AM demands I apply to your offending against AB. I bear in mind that a significant portion of your offending occurred when sentencing levels were very different.

[22] However, in applying the holistic assessment that s 85 of the Sentencing Act

2002 demands, I am driven to the conclusion that the starting point I have adopted in relation to the offending against AB is a proportionate response to your offending. I

_{also have concluded that the starting point that I have adopted is the minimum that}

6 R v Harris CA320/93, 15 November 1993, R v Churches CA275/92, 29 March 1993 and R v

Jordan CA136/92, 29 July 1992.

can be imposed to achieve the purposes of sentencing required by the Sentencing Act

2002. In your case the principal objectives are: (1) to denounce your conduct;7

(2) to deter others from offending in the same way;8

(3) to hold you accountable for the harm that you have done to your victims and the community by your offending;9 and

(4) to protect the community from you;10

Adjustment for personal factors

[23] There are no relevant personal factors that might uplift or downgrade a sentence. The fact you have no previous relevant convictions is of no moment. Your offending commenced soon after your arrival in New Zealand and spanned almost a quarter of a century. In determining that there are no personal factors that can affect the sentence, I acknowledge that I have read and considered your letter presented today. Your final sentence is therefore 16 years’ imprisonment.

Minimum period of imprisonment

[24] I observe that I have no jurisdiction to impose a minimum period of imprisonment in respect of any of the offending which occurred before 1993.11 A minimum period may be imposed, however, if the offending against AB (which

_{occurred between 1995 and 1999) and JW (which occurred in 2001) warrants one.}12

7 _{Sentencing Act 2002, s 7(1)(e).}

8 _{Section 7(1)(f).}

9 _{Section 7(1)(a).}

10 _{Section 7(1)(g).}

11 _{Davies v R [2011] NZCA 546, [2012] 1 NZLR 364.}

12 Sentencing Act 2002, ss 152 and 86.

[25] In my judgement, a minimum period of imprisonment is appropriate here. It is necessary in order to denounce and deter your offending, and to hold you accountable for what you have done.

[26] I impose a minimum term of eight years’ imprisonment (50 per cent).

Conclusion

[27] Mr Prasad, can you please stand.

[28] I am sentencing you to 16 years’ imprisonment in relation to the counts of

rape that you have been convicted of in relation to your offending against AB.

[29] I impose a sentence of seven years’ imprisonment for the rapes and sodomy of JW. Those sentences are concurrent.

[30] I am imposing five years’ imprisonment on each of the counts concerning

unlawful sexual connection. Those sentences are concurrent.

[31] I am imposing five years’ imprisonment for each of the counts relating to inducing an indecent act by a girl under 12. Those sentences are concurrent.

[32] I am imposing three years’ imprisonment on each of the counts of indecent assault. Those sentences are concurrent.

[33] You will serve a minimum period of eight years’ imprisonment.

[34] I am annexing to my written reasons for sentence a schedule explaining your sentence in relation to each count in the indictment.

[35] You have not previously been granted name suppression. Nothing has been presented to me which alters that position.

[36] You may now stand down.

Solicitors:

Crown Solicitor, Wellington

D B Collins J

_{Complainant / Charge Count(s) Term}

_{AB - Rape (x4) 25, 26, 27, 29 16 years}

_{JW – Rape (x2) & Sodomy (x1) 9, 14 & 13 7 years (con)}

AB – Unlawful sexual connection (x4) 28, 30, 31, 32 5 years (con)

_{BW – Unlawful sexual connection (x1) 22 5 years (con)}

JW – Inducing an Indecent Act (x4) 4, 6, 7, 10 5 years (con)

_{BW – Inducing an Indecent Act (x4) 15, 17, 18, 21 5 years (con)}

AB – Indecent Assault (x1) 24 3 years (con) JW – Indecent Assault (x7) 1, 2, 3, 5, 8, 11, 12 3 years (con) BW – Indecent Assault (x3) 16, 20, 23 3 years (con)

TOTAL END SENTENCE: 16 years imprisonment with a minimum non parole period of 8 years imprisonment.