R v Prasad [2014] NZHC 3014 (28 November 2014)

Last Updated: 4 December 2014

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 Sentencing Act 2002, s 8(e).

contrary to the jury’s essential findings of fact and I must sentence you on the view I

have formed of all the evidence that is consistent with the jury’s findings.

Victim impact

[8] You have heard the three victim impact statements read out in Court this morning. All three were very unhappy tales. Your counsel has urged that I moderate the relevance I attribute to them because they may reflect the greater impact of more widespread offending involved in the first set of convictions, and that would obviously be a wrong approach. So the caution raised by your counsel is a valid consideration, and I have reflected carefully and remain comfortable that the present convictions make a sufficiently substantial contribution to the on-going harm they have described that I can have regard to the statements from the victims as provided to the Court.

[9] In that regard, JW has suffered great hardship since your offending. It has contributed significantly to the post traumatic stress disorder from which she now suffers. It causes her daily indignities and greatly inhibits her ability to live an ordinary life.

[10] BW turned to substance abuse to numb the memory of being sexually abused. It continues to impact her relationship with men today. She cannot get what you did out of her mind.

[11] For AB, life was transformed by the rape into one of misery and a life without hope. She too attributes the trauma of the offending as a reason for abusing alcohol and drugs. She feels permanently alienated and has been unable to foster normal positive relationships.

Personal circumstances

[12] I now turn to your personal circumstances. You moved to New Zealand from Fiji in 1976. You and your wife have four grown children. Your family were supportive of you during the trial, and you say that that support continues. You are a

hard worker: you worked as a factory supervisor for a long time and then ran your own cleaning business for 23 years. I note that you currently suffer from diabetes.

[13] I treat you as not having been convicted of sexual offending before. You do have three previous drink-driving convictions and three other driving related convictions.

Purposes and principles of sentencing

[14] Now in sentencing you, I am required by the Sentencing Act 2002 to take into account a number of purposes and principles of sentencing, and I must also consider comparable cases.

[15] I must hold you, Mr Prasad, accountable for the harm you have done to your victims and to the community. I must promote a sense of responsibility in you, and hopefully cause you to acknowledge the harm that you have caused. I also need to denounce what you did and I need to deter you and other people from committing similar offences in the future.

[16] I must take into account the gravity of your offending, and your degree of responsibility for it. I must have regard to the seriousness of this offending in comparison to other types of offending in light of the maximum penalties available to the Court, and the general desirability that there be consistency in sentencing offenders.

[17] And ultimately I must consider your rehabilitation and your re-integration into society. And then, having weighed up all those factors, I must impose the least restrictive outcome that is appropriate in your circumstances.

Starting point on lead charge

[18] Now the lead offence – the most serious offence – in this case is your rape of AB. In determining a starting point for your sentence, I will first set the starting point for the rape charge, then I will impose an uplift to account for the totality of

your offending.⁵ That means I will be sentencing you to concurrent prison terms, so that you serve the separate sentences on each conviction at the same time.

Aggravating features of the offending

[19] Now I start by considering the aggravating features of your offending. There is a list of what can constitute aggravated features in this type of sexual offending in R v AM, which you have heard both counsel refer to this morning. It is a guideline judgment from the Court of Appeal.⁶ The Crown submits that there are three such aggravating features that are present to a high degree and a fourth feature to a lesser degree. Your counsel submits that there are only two that are present, and to a moderate degree.

Vulnerable victim

[20] First, it goes without saying that AB was a very vulnerable victim. She was only about six years old. You were a grown man. She described you as feeling very heavy on top of her. She was all but helpless.⁷

Breach of trust

[21] Second, your offending involved a gross breach of trust as I perceived the case at the end of all the evidence. At the time of the offending, you had been entrusted to care for AB.⁸ You have heard Mr Phelps this morning arguing that the extent of the breach of trust is lessened where there was only one occasion on which you took ultimate advantage of this young girl when she had been left with you over long periods of time. I do not accept, I am sorry, that that lessens the seriousness of the breach of trust. She was so young and those who would otherwise protect her

_{from you were not on their guard at all.}

⁵ _{Sentencing Act 2002, s 85.}

⁶ _{R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.}

⁷ _{R v AM at [42].}

⁸ R v AM at [50].

Harm to the victim

[22] Third is the harm to the victim, in both physical and mental terms, and AB has been caused certainly more than minor harm by you.⁹ The activity was physically extremely painful for her at the time, and that is seared into her memory. And that is a form of aggravating harm.¹⁰ Mentally, AB has been shattered. Her life has been narrowed and it has turned negative in the long-term by that offending.

[23] I am not satisfied however, as the Crown has submitted, that what you did was “particularly cruel and callous” in the sense that that form of aggravating feature is described in AM.¹¹ It certainly was, in everyday use of the word, very callous of you to leave a six year old to clean herself up and go to bed, but that is not comparable to the extraordinary callousness that requires a case to be placed in band three or higher of the sentencing bands that are provided by the Court of Appeal in AM.¹²

Premeditation

[24] The fourth factor the Crown cites as aggravating the rape was premeditation. Now that can take a number of forms as you would appreciate. Your offending was opportunistic in the sense that you seized a chance to offend when your wife was not around and it is to be treated for sentencing as a one-off incident. But it was premeditated in the sense that I am satisfied you were a predator. You had sexually offended previously against the other victims in similar circumstances and I am satisfied that when the opportunity arose you took steps to get the victim alone, just

_{as you did with the other victims, ordering AB into an empty room.}¹³

⁹ _{R v AM at [44].}

¹⁰ _{R v AM at [100].}

¹¹ _{R v AM at [107].}

¹² R v AM at [105]. In one of the examples given (R v Singh CA348/05, 26 April 2006), the offender violently assaulted a man and then forced him and a young woman to watch as he

violently and repeatedly raped the man’s mother over a period of more than 12 hours. This included at one stage loading a gun and putting it in her vagina.

¹³ R v AM at [37]. The Court of Appeal said “offenders who show predatory sexual behaviour may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation.”

Mitigating features of your offending

[25] There are no mitigating features in terms of the offending.

Comparable cases

[26] On your rape conviction, I have to also be conscious of comparable cases, and I treat it, although there is a sadly long list of possible comparators, as similar in seriousness to one component of R v Roberson.¹⁴ In that case, Justice Courtney adopted a starting point of 10 years’ imprisonment.

[27] I am satisfied that in your case two aggravating features are present to a high degree. You imposed yourself on a vulnerable victim and the rape included a serious breach of trust. Now I do accept that there is a degree of overlap in those aggravating features. A further two features are present to a moderate and mild degree respectively: namely harm to the victim and premeditation.

[28] So that places your offending towards the upper end of band two of the bands in AM, which attracts starting points between seven and 13 years’ imprisonment.¹⁵ It does come close to, but does not quite fall into, the bottom of band three, which is the more serious.¹⁶

[29] In terms of a starting point you will have heard Crown counsel submit that I should adopt a starting point of between 11 and 12 years for the rape, and they then went on and said that should be increased to 12 to 13 years when we add the effect of

_{the other offending if you are to serve your sentences concurrently.}

¹⁴ R v Roberson [2013] NZHC 1929. In that case, separately from other serious offending against young girls, the defendant raped a five year old boy. The boy was similarly vulnerable. He experienced similar severe pain, and blood coming from his anus after penetration. The psychological impact on the victim was deep. There was perhaps a slightly lesser breach of trust, the defendant being a 21 year old neighbour, but the family of the victim had trusted him to babysit. The defendant was a little more opportunistic, but had a similar predatory history of abusing other children.

¹⁵ R v AM at [98]. The Court of Appeal noted that band two would be appropriate where the level of premeditation was moderate, and the vulnerability of the victim was a primary aggravating factor.

¹⁶ At [105]. The Court of Appeal said that “a particularly vulnerable victim” in addition to another aggravating factor present to a high degree meant band three would be appropriate. Alternatively three factors present to a moderate degree could warrant band three.

[30] Your defence counsel, both in Mr Snell’s written submissions and Mr Phelps speaking to them this morning, has urged that eight years is the appropriate starting point and from your perspective they urge that the uplift for the remaining offending be not more than one year. Dealing just with the rape conviction, I adopt a starting point of 10 years and six months on that lead charge.

Uplift for other offending

[31] I then have to consider the uplift for the other convictions for the indecencies committed with all three of the complainants. As I have said, you will serve sentences for these other convictions at the same time. But your sentence on the lead offence will be uplifted to reflect the totality of your offending.¹⁷

[32] Because your offending on these counts is historic, you must be sentenced in accordance with the law as it was then. I must fix a starting point based on sentencing levels at the relevant time and which recognises the aggravating features of the offending.¹⁸ But I do not need to reconstruct the sentencing mores of an earlier time. For example, because present day attitudes regard your offending against JW as more serious,¹⁹ I must treat it as a serious form of indecency within the sentencing levels that applied.²⁰

[33] I have considered the cases the Crown has referred to me on the relevant historic sentencing levels, but they do not greatly assist me.²¹ They involve much more extensive offending than this case.²² All that can be said is clearly the starting point of six and seven years adopted in those cases would be too high in your present

_{circumstances.}

¹⁷ _{Section 85.}

¹⁸ R v R (CA244/04) CA244/04, 2 November 2004 at [22]. See also R v B (CA41/07) [2007] NZCA 292 at [34].

¹⁹ The relevant indecent act in relation to JW is oral sex. On 1 February 1986 oral sex was re-

categorised as the more serious offence of sexual violation by unlawful sexual connection. It now attracts a 20 year maximum penalty. Of course, the higher maximum does not apply in this case. But what this shows is that present day attitudes to offending involving oral sex have toughened. It must be seen as one of the most serious types of indecency.

²⁰ _{R v Accused (CA463/97) (1998) 15 CRNZ 602 (CA) at 609.}

²¹ _{R v Tutty [1998] 3 NZLR 165 (CA); R v M HC Wellington CRI-2004-032-3626, 22 April 2005.}

²² Mr Tutty’s offending occurred frequently over more than seven years and involved digital penetration and performing oral sex on the victim. Mr M’s offending occurred at least weekly over a 10 year period, involved rubbing the victims’ genitals and urination on the victims on one occasion.

[34] In the comparable case of Davies v R, the Court of Appeal upheld a starting point of four years’ imprisonment imposed concurrently on three charges of indecent assault and one of inducing an indecent act.²³ I consider your offending was less serious. Your offending was much shorter in duration, occurred over a two year period, with two further isolated incidents some years later. On the other hand, it did involve degrading oral sex on multiple occasions, which is a particularly serious form of indecency.

[35] It is more serious than the offending in W (CA172/2013) v R where the Court of Appeal did not disturb a starting point of two years’ imprisonment on three representative charges of indecency.²⁴

[36] I adopt a starting point of three years’ imprisonment, imposed concurrently, on all four of your indecency convictions. Simply adding that to the 10 years and six months for the rape would make a total sentence of 13 years and six months.

[37] The next step is to assess whether that length appropriately reflects the totality of your offending. I am satisfied it would be too long. I will therefore uplift your sentence for the rape by one year.

[38] The overall starting sentence is therefore 11 years and six months’

imprisonment.

Personal aggravating and mitigating factors

[39] I now address factors relating to you personally, rather than the offending, that might alter the starting sentence either up or down.

²³ Davies v R [2011] NZCA 546, [2012] 1 NZLR 364. The victim was aged between three and nine years old at the time. The relevant offending took place over six years between 1982 and

1988. The defendant masturbated himself in her presence, induced her to touch his penis, and touched her breasts and genitalia while bathing her.

²⁴ W (CA172/2013) v R [2014] NZCA 234. In that case the defendant performed oral sex on the victim, digitally penetrated her, forced her to masturbate him and on one occasion induced her to perform oral sex on him. The victim was aged between eight and 12 years when the offending occurred. It is not entirely clear from the judgment, but it appears to have happened in the 1960s judging by the age of the offender and the fact it was his younger sister.

Previous convictions/good character

[40] Now the written submissions urge me to give you a discount for lack of relevant convictions and your present health concerns. Those submissions say that you lack relevant previous convictions and have been a positive contributor to your family and the community. But I will not do as your counsel urge. You hardly have an unblemished record: your recidivist driving offending shows that. Your contribution to family and community life maybe commendable but it is unremarkable, with respect. Discounts for previous good character are warranted

where a blameless life has been blemished by a single aberration.²⁵ You, on the

other hand, offended against children over a period of some 20 years so that is hardly an aberration.

[41] I will not uplift your sentence for any previous convictions, but you are not eligible for a discount for previous good character either.

Ill health

[42] As to the ill health, the pre-sentence report writer advises you suffer from diabetes, high blood pressure and an historical shoulder injury. It is suggested that I should discount your sentence on the ground that it will weigh more heavily upon you because of your ill health, but I will not do that. I am satisfied that your ailments can be adequately managed in prison.

Time served in prison

[43] Between being sentenced after your first trial and your successful appeal, you spent some eight months and three weeks in prison.²⁶ The effect of s 96(3) of the Parole Act 2002 is that that period of imprisonment will automatically count as time served under this present sentence that I am imposing. Therefore I need not discount

_{your sentence on that basis.}

²⁵ _{See R v Hayward [2008] NZCA 172 at [23].}

²⁶ The precise dates were 2 October 2012 until 21 June 2013.

Minimum period of imprisonment

[44] The last topic I have to consider is whether to impose a minimum period of imprisonment. The Crown submits that I should, urging a minimum period of 50 per cent of the end sentence.²⁷ I cannot impose a minimum period in relation to your offending that occurred before 1 September 1993.²⁸ I can therefore only impose a minimum period of imprisonment on the rape charge.

[45] I note that there is precedent for imposing a minimum period of imprisonment for a case at the top end of band two in appropriate circumstances. That is the case of Skipper v R.²⁹ Mr Phelps urged that it is different from your circumstances and should not apply as appropriate to your circumstances. Apart from Skipper, generally in unremarkable cases where a starting point of nine to

_{10 years is adopted, a minimum period is not imposed.}³⁰

[46] Community protection is not, in my view, a large concern here.³¹ I do note that the pre-sentence report characterises you as being at risk of further offending. What weighs with me is that you will be at least 67 years old when you are released, and probably older as you have denied your offending. On the basis of these convictions, you have not committed sexual offending for 17 years, and I can be comforted that the Parole Board will not release you unless it is satisfied you will not

pose an undue risk to the safety of the community.³²

[47] I am not satisfied also that the default minimum period of just under four years is insufficient to hold you accountable, to denounce your conduct and deter you and others from committing similar offences.³³ So I have decided not to impose

_{a minimum period of imprisonment.}

²⁷ _{Sentencing Act 2002, s 86.}

²⁸ _{Davies v R [2011] NZCA 546, [2012] 1 NZLR 364 at [60].}

²⁹ _{See Skipper v R [2013] NZCA 104.}

³⁰ _{Harrison v R [2011] NZCA 642.}

³¹ _{Sentencing Act 2002, s 86(2)(d).}

³² _{Parole Act 2002, s 28.}

³³ Sentencing Act 2002, ss 86(2)(a),(b) and (c).

Sentence

[48] Mr Prasad I now sentence you to 11 years six months’ imprisonment on the count of sexual violation by rape. On the four counts of indecency I sentence you to three years’ imprisonment. Those sentences will be served concurrently. So you will serve a maximum of 11 years six months in prison.

[49] Stand down.

Dobson J

Solicitors:

Crown Solicitor, Wellington.