PRASAD v NEW ZEALAND POLICE [2017] NZHC 2071

PRASAD v NEW ZEALAND POLICE [2017] NZHC 2071 [28 August 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-213[2017] NZHC 2071BETWEEN SUNIL PRASADAppellantAND NEW ZEALAND POLICERespondentHearing: 22 and 28 August 2017Appearances: D Nairn for AppellantC Howard (on 22/8/17) and I S Ko (on 28/8/17) for RespondentJudgment: 28 August 2017(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Prasad pleaded guilty in the District Court to 14 charges of accessing a computer system and thereby obtaining property by deception and without claim of right. On 13 June 2017, Judge Andrée Wiltens sentenced Mr Prasad to two years eight months imprisonment.1 Mr Prasad appeals against sentence on the basis that an error of process occurred in the District Court, and that this led to him receiving a sentence that was wrong in principle and manifestly excessive.The offending[2] The charges were laid as a result of a series of incidents that occurred between October 2014 and November 2015. During this period Mr Prasad obtainedaccess to his employer's computer system and used it to transfer funds into his own bank account under the guise of paying invoices that he had concocted. He then took steps to conceal the payments from his employer.[3] The total amount that Mr Prasad obtained using this method was in the vicinity of $183,000. His employer was able to recover approximately $5,000 of this sum by withholding a final payment that was due to Mr Prasad when he ceased employment with the company. Mr Prasad also paid back the sum of approximately $5,600 when his employer discovered what was happening. The ultimate loss was therefore approximately $172,000.The argument on appeal[4] The appeal was advanced principally because Mr Prasad feels aggrieved at what occurred in the District Court at the time of sentencing. When he appeared for sentence on 13 June 2017 his counsel, Mr Nairn, asked the Judge for an adjournment so that Mr Prasad could explore the possibility of attending a restorative justice conference with his employer. The Judge took the view that the mandatory restorative justice process did not apply in respect of a corporate complainant or victim. For that reason the Judge declined to grant him an adjournment and proceeded to sentence Mr Prasad.1 New Zealand Police v Prasad [2017] NZDC 12645.[5] When pressed during the hearing of the appeal, Mr Nairn said that the restorative justice conference may have produced a positive outcome in the sense that Mr Prasad could have made an offer of reparation to his employer. This could have affected the end sentence he received because the payment of reparation is a mitigating factor, and the Judge may well have reduced the end sentence to reflect a meaningful offer of reparation.[6] In order to deal with this concern, I adjourned the appeal for a week so that Mr Nairn could take further instructions from Mr Prasad as to whether he is currently in a position to make any offer of reparation. Mr Nairn has now spoken toMr Prasad and has been instructed that Mr Prasad is unable to offer any lump sumpayment by way of reparation. Mr Prasad also accepts that an order for reparationpayable by instalments is impracticable at present because of Mr Prasad's custodialstatus. Mr Prasad therefore accepts that the issue of reparation is no longer one thatcan be taken into account by the Court. For that reason I put the alleged error ofprocess to one side for present purposes without making any finding as to whether ornot referral to a restorative justice conference was required in the present case.Was the sentence manifestly excessive?[7] The Judge pointed out that the offending had numerous aggravating factors. These included the total amount involved, the determined and repetitive means bywhich the money was stolen, the fact that Mr Prasad was in a senior position at thevictim's company and therefore breached the trust that his employer reposed in him,the fact that the offending was deliberate and well-planned and the fact thatprospects of reparation were extremely bleak.[8] As the Judge observed, there is no tariff, or guideline, judgment of the Court of Appeal for offending such as this. Rather, the starting point must reflect the overall culpability of the offending.[9] In the present case, given the aggravating factors referred to by the Judge, I consider that a starting point of 45 months was within the available range, albeit towards the top of that range. There were no aggravating factors that increased thestarting point, and I agree with the Judge's conclusion that the only mitigating factorthat could be taken into account was the fact that Mr Prasad entered guilty pleas mid- way through the criminal process. He received a discount of 25 per cent for that, and this could probably be regarded as generous having regard to the strength of the prosecution case and the point where the guilty pleas were entered.[10] As a result, and as Mr Nairn realistically accepts, the end sentence cannot be regarded as manifestly excessive.Result[11] The appeal against sentence is accordingly dismissed.Lang JSolicitors:Kayes Fletcher Walker, Manukau