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Deo Narayan v/s The Queen


Company & Directors' Information:- NARAYAN [Strike Off] CIN = U00111KA2006PTC390000

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 580 of 2019

    Decided On, 22 April 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE DOBSON & THE HONOURABLE MR. JUSTICE MOORE

    For the Appellant: A.S.R. Kashyap, Advocate. For the Respondent: A. Markham, Advocate.



Judgment Text


REASONS OF THE COURT

(Given by Moore J)

Introduction

[1] On 8 October 2019, Mr Narayan was sentenced by Judge Moses in the Manukau District Court to 11 months’ home detention on seven charges of obtaining a pecuniary advantage by deception and without claim of right.[1]

[2] His convictions followed findings of guilt by a jury six months earlier.

[3] Mr Narayan appeals that sentence. He claims that insufficient credit was given for his repayment of the funds he fraudulently received as a consequence of his offending.

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 to continue to operate at a residential property in Otara.

[5] The Church is a charitable organisation established in 1999. In 2015 the Church was advised by the local council that its operations were in breach of the District Plan (it was operating at a residential address without resource consent). Unless a resource consent was obtained the activities of the Church would have to 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, resolve the Church’s issues with the council. He said he had contacts at the council and produced a business card which described him as the director of Narayan Investments Limited. In fact, and unbeknownst to the Church, he was an undischarged bankrupt in receipt of a benefit.

[7] Over a period of eight months between 23 July 2015 and 22 March 2016 he received a total of $50,840.70 from the Church. This followed the Church’s payment on seven fraudulent invoices and other claims which he submitted to the Church purporting to relate to chargeable activities he had undertaken towards obtaining a resource consent. He spent the money on himself. This included regular payments to a TAB account. The funds which he took had been raised by members of the Church’s congregation.

[8] In fact, Mr Narayan did nothing to advance the Church’s interests and at his trial blamed the Church’s minister and/or the accountant.

[9] Mr Narayan was arrested on these charges in January 2018. Shortly before the April 2019 trial he repaid the amount he had taken. That payment took no account of any accrued interest.

[10] In its victim impact statement, the Church recorded that although it was obviously relieved the funds had been repaid, it was apparent Mr Narayan took advantage of their trusting nature. The Church members had regarded him as an answer to their prayers. But he betrayed their trust and caused “deep wounds within the Church”. The funds were raised through the efforts of a small group within the congregation. The offending had caused them to “lose their inspiration” to support fundraising for Church premises.

Personal circumstances

[11] Mr Narayan is aged 66. He has nine prior convictions including some four for fraud. His most recent sentence was community service imposed in 2001.

[12] For some years he has suffered from type 2 diabetes with resultant health issues such as chronic kidney and cardiovascular disease.

[13] The pre-sentence report described Mr Narayan as exhibiting a high sense of entitlement, lacking insight and failing to display meaningful remorse.

Sentencing decision

[14] The Judge considered that the aggravating factors included the degree of dishonesty, the amount involved, the circumstances of the Church which was out of pocket 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 previous dishonesty convictions given the age of the charges.[3]

[16] In terms of mitigating factors, the Judge identified two. The first was Mr Narayan’s health issues for which he gave a 10 per cent discount.[4] The second was reparation. The Judge gave a further 10 per cent discount on that account.[5] He was not prepared to give a discrete discount for remorse, due to the comments in the pre sentence report and the Judge’s own observations from the trial. He said he agreed with the description of Mr Narayan in the PAC report as displaying a “complete lack of insight and what I consider a sense of entitlement on [Mr Narayan’s] part for doing what [he] did”.[6]

[17] Because the discounts brought the sentence to below two years the question of home detention arose. While observing that there were no real rehabilitative prospects in favour of such a sentence, the Judge took into account Mr Narayan’s age, health and repayment of the debt. Recognising that a sentence of home detention was the least restrictive sentencing option, he sentenced Mr Narayan to 11 months’ home detention with six months’ standard post-detention conditions and special conditions.[7]

Discussion

[18] Mr Kashyap, for Mr Narayan, submitted that while the starting point of 30 months’ imprisonment was appropriate, the Judge gave insufficient credit for Mr Narayan electing before trial to repay all monies to the Church. He submitted that a credit of at least 30 per cent should have been given, which would have brought the end sentence to one of 12 months’ imprisonment and thus a likely and appropriate sentence of six months’ home detention.

[19] In order to succeed on this appeal Mr Narayan must satisfy us that not only did the sentencing Judge err but that a different sentence should be imposed.[8] The focus is whether the end sentence is within the available range, rather than the process by which it was reached.[9]

[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 she submitted were comparable and which indicate that the starting point of two-and-a half years’ imprisonment was well within range and might have been greater. These are 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 by Mr 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 offending was too serious to warrant home detention.

[23] In Smith, the appellant fraudulently obtained $20,000 from five, mostly vulnerable, victims over a period of one year. The funds were spent by the appellant on herself. A starting point of three-and-a-half years’ imprisonment was upheld on appeal to the High Court (and leave to bring a further appeal to this Court was declined), although that starting point was described as high by this Court.[13]

[24] In Blackmore, the appellant pleaded guilty to 18 charges of dishonesty offending, having fraudulently obtained cash and vehicles valued at over $62,000 from 17 victims. After recovery, the net loss was just over $16,000. The Court considered that a starting point of three-and-a-half years to four years’ imprisonment could be within range.[14]

[25] We agree with Ms Markham that a starting point of three years’ imprisonment was available to the sentencing Judge. It is also noteworthy that the Judge did not make a modest uplift on account of Mr Narayan’s previous convictions. Although the most recent offending was 18 years’ old at the time Mr Narayan committed the present offending, in the intervening period he had been involved in a civil dispute over his purchasing of a home that the District Court Judge described as a “cynical rip off of an elderly man and his wife, both of whom were very ill at the time”.[15] This indicates that his pattern of dishonest behaviour was ongoing.

[26] Next we turn to the 20 per cent discount the Judge gave both for Mr Narayan’s health 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 serving his sentence would impose particular difficulties or that it would make management of his conditions difficult. Despite this, Mr Narayan’s ill health was a factor which influenced the Judge to impose home detention rather than imprisonment.

[28] The second issue, and the one on which Mr Kashyap focused, is whether the 10 per cent discount for repaying the amount defrauded was sufficient. We are of the view it was sufficient for the reasons which follow.

[29] Mr Kashyap emphasised this was a voluntary payment made by Mr Narayan before trial. The repayment was not inconsistent with his defence, ultimately rejected by the jury, that he had received the funds in good faith and that others were responsible for the failures in undertaking the necessary work.

[30] However, the repayment was not made immediately. It was made well after Mr 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 funds not 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 cent discount in acknowledgement of Mr Nar

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ayan’s ill health and repayment could be seen as generous in the circumstances. This, combined with the starting point which we regard as sitting at the lower end of the range, leads us to conclude that the end sentence, which could easily have been one of imprisonment, was well within what was available to the sentencing Judge. Result [33] The appeal is dismissed. ------------------------------------------------ [1] R v Narayan [2019] NZDC 20006. [2] At [12]. [3] At [13]. [4] 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]. [10] 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], [15] McDonald v Narayan [2011] DCR 114 at [28].
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