NARAYAN v R [2020] NZCA 109

NARAYAN v R [2020] NZCA 109 [22 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA580/2019[2020] NZCA 109BETWEEN DEO NARAYANAppellantAND THE QUEENRespondentHearing: 3 March 2020Court: French, Dobson and Moore JJCounsel: A S R Kashyap for AppellantA Markham for RespondentJudgment: 22 April 2020 at 3 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] On 8 October 2019, Mr Narayan was sentenced by Judge Moses inthe Manukau District Court to 11 months' home detention on seven charges ofobtaining a pecuniary advantage by deception and without claim of right.1[2] His convictions followed findings of guilt by a jury six months earlier.1 R v Narayan [2019] NZDC 20006.[3] Mr Narayan appeals that sentence. He claims that insufficient credit was givenfor his repayment of the funds he fraudulently received as a consequence of hisoffending.Background facts[4] Mr Narayan was engaged by the Tokelau Congregational Christian Church("the Church") to obtain certain building and resource consents to permit them tocontinue to operate at a residential property in Otara.[5] The Church is a charitable organisation established in 1999. In 2015the Church was advised by the local council that its operations were in breach ofthe District Plan (it was operating at a residential address without resource consent).Unless a resource consent was obtained the activities of the Church would haveto cease.[6] A member of the congregation introduced Church leaders to Mr Narayan.He represented to them that he was a qualified builder who could, for a fee, resolvethe Church's issues with the council. He said he had contacts at the council andproduced a business card which described him as the director of Narayan InvestmentsLimited. In fact, and unbeknownst to the Church, he was an undischarged bankruptin receipt of a benefit.[7] Over a period of eight months between 23 July 2015 and 22 March 2016 hereceived a total of $50,840.70 from the Church. This followed the Church's paymenton seven fraudulent invoices and other claims which he submitted to the Churchpurporting to relate to chargeable activities he had undertaken towards obtaininga resource consent. He spent the money on himself. This included regular paymentsto a TAB account. The funds which he took had been raised by members ofthe Church's congregation.[8] In fact, Mr Narayan did nothing to advance the Church's interests and at histrial blamed the Church's minister and/or the accountant.[9] Mr Narayan was arrested on these charges in January 2018. Shortly beforethe April 2019 trial he repaid the amount he had taken. That payment took no accountof any accrued interest.[10] In its victim impact statement, the Church recorded that although it wasobviously relieved the funds had been repaid, it was apparent Mr Narayan tookadvantage of their trusting nature. The Church members had regarded him asan answer to their prayers. But he betrayed their trust and caused "deep wounds withinthe Church". The funds were raised through the efforts of a small group withinthe congregation. The offending had caused them to "lose their inspiration" to supportfundraising for Church premises.Personal circumstances[11] Mr Narayan is aged 66. He has nine prior convictions including some four forfraud. His most recent sentence was community service imposed in 2001.[12] For some years he has suffered from type 2 diabetes with resultant health issuessuch as chronic kidney and cardiovascular disease.[13] The pre-sentence report described Mr Narayan as exhibiting a high sense ofentitlement, lacking insight and failing to display meaningful remorse.Sentencing decision[14] The Judge considered that the aggravating factors included the degree ofdishonesty, the amount involved, the circumstances of the Church which was out ofpocket for over two years and the impact the offending had on Church members.He set an overall starting point of two-and-a-half years or 30 months' imprisonment.2[15] The Judge elected not to uplift the starting point on account of his previousdishonesty convictions given the age of the charges.32 At [12].3 At [13].[16] In terms of mitigating factors, the Judge identified two. The first wasMr Narayan's health issues for which he gave a 10 per cent discount.4 The second wasreparation. The Judge gave a further 10 per cent discount on that account.5 He wasnot prepared to give a discrete discount for remorse, due to the comments inthe pre-sentence report and the Judge's own observations from the trial. He said heagreed with the description of Mr Narayan in the PAC report as displaying a "completelack of insight and what I consider a sense of entitlement on [Mr Narayan's] part fordoing what [he] did".6[17] Because the discounts brought the sentence to below two years the question ofhome detention arose. While observing that there were no real rehabilitative prospectsin favour of such a sentence, the Judge took into account Mr Narayan's age, health andrepayment of the debt. Recognising that a sentence of home detention was the leastrestrictive sentencing option, he sentenced Mr Narayan to 11 months' home detentionwith six months' standard post-detention conditions and special conditions.7Discussion[18] Mr Kashyap, for Mr Narayan, submitted that while the starting point of30 months' imprisonment was appropriate, the Judge gave insufficient credit forMr Narayan electing before trial to repay all monies to the Church. He submitted thata credit of at least 30 per cent should have been given, which would have broughtthe end sentence to one of 12 months' imprisonment and thus a likely and appropriatesentence of six months' home detention.[19] In order to succeed on this appeal Mr Narayan must satisfy us that not only didthe sentencing Judge err but that a different sentence should be imposed.8 The focusis whether the end sentence is within the available range, rather than the process bywhich it was reached.94 At [13].5 At [14].6 At [14].7 At [15]–[16].8 Criminal Procedure Act 2011, s 250(2).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[20] That requires us to review the sentence as a whole, including the starting point.[21] Ms Markham, for the Crown, referred us to three cases of this Court which shesubmitted were comparable and which indicate that the starting point of two-and-ahalf years' imprisonment was well within range and might have been greater. Theseare Mehta v R,10 Smith v Police,11 and Blackmore v R.12[22] Mehta involved a door-to-door sales business targeting low income customers.The goods promised were not delivered and the funds received were spent byMr Mehta on himself. The net loss was just under $24,000. A sentence of two years'imprisonment was upheld as was the sentencing Judge's decision that the offendingwas too serious to warrant home detention.[23] In Smith, the appellant fraudulently obtained $20,000 from five, mostlyvulnerable, victims over a period of one year. The funds were spent by the appellanton herself. A starting point of three-and-a-half years' imprisonment was upheld onappeal to the High Court (and leave to bring a further appeal to this Court wasdeclined), although that starting point was described as high by this Court.13[24] In Blackmore, the appellant pleaded guilty to 18 charges of dishonestyoffending, having fraudulently obtained cash and vehicles valued at over $62,000 from17 victims. After recovery, the net loss was just over $16,000. The Court consideredthat a starting point of three-and-a-half years to four years' imprisonment could bewithin range.14[25] We agree with Ms Markham that a starting point of three years' imprisonmentwas available to the sentencing Judge. It is also noteworthy that the Judge did notmake a modest uplift on account of Mr Narayan's previous convictions. Although themost recent offending was 18 years' old at the time Mr Narayan committed the presentoffending, in the intervening period he had been involved in a civil dispute over his10 Mehta v R [2017] NZCA 491.11 Smith v Police [2019] NZCA 219.12 Blackmore v R [2014] NZCA 109.13 Smith v Police, above n 11, at [6].14 Blackmore v Police, above n 12, at [11] and [14],purchasing of a home that the District Court Judge described as a "cynical rip off ofan elderly man and his wife, both of whom were very ill at the time".15 This indicatesthat his pattern of dishonest behaviour was ongoing.[26] Next we turn to the 20 per cent discount the Judge gave both for Mr Narayan'shealth and his repayment.[27] In respect of Mr Narayan's chronic poor health we make two observations.First, despite his ill health, Mr Narayan offended over a period of eight months.Secondly, it has not been suggested, nor is there any evidence before us, that servinghis sentence would impose particular difficulties or that it would make managementof his conditions difficult. Despite this, Mr Narayan's ill health was a factor whichinfluenced the Judge to impose home detention rather than imprisonment.[28] The second issue, and the one on which Mr Kashyap focused, is whetherthe 10 per cent discount for repaying the amount defrauded was sufficient. We are ofthe view it was sufficient for the reasons which follow.[29] Mr Kashyap emphasised this was a voluntary payment made by Mr Narayanbefore trial. The repayment was not inconsistent with his defence, ultimately rejectedby the jury, that he had received the funds in good faith and that others wereresponsible for the failures in undertaking the necessary work.[30] However, the repayment was not made immediately. It was made well afterMr Narayan was charged and shortly before his trial commenced. Furthermore,the return of the funds, based on Mr Narayan's defence, was inevitable. Had the fundsnot been returned, reparation orders would have followed.[31] Thirdly, the repayment was made without interest and without remorse.[32] In our view the 10 per cent discount was appropriate. Indeed, the 20 per centdiscount in acknowledgement of Mr Narayan's ill health and repayment could be seenas generous in the circumstances. This, combined with the starting point which we15 McDonald v Narayan [2011] DCR 114 at [28].regard as sitting at the lower end of the range, leads us to conclude that the endsentence, which could easily have been one of imprisonment, was well within whatwas available to the sentencing Judge.Result[33] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent