| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA46/2024 [2024] NZCA 261 |
| BETWEEN | TARAT BAKHSHI |
| AND | THE KING |
| CA47/2024 | ||
| BETWEEN | ADIL TAJEK | |
| AND | THE KING | |
| Court: | Courtney, Muir and Cull JJ |
Counsel: | J D Munro and A N Gruebner-Ballantine for Applicants |
Judgment: | 24 June 2024 at 10 am |
JUDGMENT OF THE COURT
The applications for leave to bring second appeals are declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Muir J)
Introduction
Messrs Tarat Bakhshi and Adil Tajek seek leave to bring second appeals against their sentences, imposed by the District Court, of three and a half years’ imprisonment and three years’ imprisonment respectively, having each pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.[1] On 8 December 2023, O’Gorman J dismissed appeals against those sentences by both applicants.[2]
[1]R v Bakhshi [2023] NZDC 22262. Crimes Act 1961, s 188(1) — maximum penalty of 14 years’ imprisonment.
The applicants say that justice has or may have miscarried,[3] on the grounds that both previous decisions mischaracterise the aggravating features of the offending which, in turn, had a direct impact on the R v Taueki band in which the offending was placed.[4]
[3]Invoking one of the two tests for leave to bring a second appeal in the Criminal Procedure Act 2011, s 253(3)(b).
[4]R v Taueki [2005] 3 NZLR 372 (CA) at [34].
They also say that the starting point of 10 years’ imprisonment identified by the District Court Judge was excessive having regard to comparable cases and that this likewise establishes that a miscarriage may have occurred. Counsel submits that a starting point of between seven and eight years’ imprisonment was appropriate.
The offending
On 24 November the applicants drove to an address in Glen Eden intending to confront the victim. After waiting approximately 40 minutes, the victim arrived on foot with associates. At the same time, a vehicle containing further associates of the victim arrived and parked in the middle of the street, blocking the applicants’ exit.
Seeing that they were outnumbered, the applicants drove their vehicle into a gap between the vehicle driven by the victim’s associates and a parked van. They struck the victim who was standing nearby. He fell to the ground writhing and screaming in pain with a wound to his lower left leg, a fractured rib, compound fractures to his left tibia and fibula and a damaged left knee cap. He attempted to crawl off the road and onto the footpath.
Having observed the collision, the victim’s associates ran away. The applicants then exited their vehicle and “rushed” to the victim. Mr Tajek was armed with a large machete and Mr Bakhshi with a large hunting knife. They surrounded the victim and slashed at him causing life threatening injuries before stealing his shoulder bag and leaving the scene with associates in another vehicle.…
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- AGLC
- Bakhshi v The King [2024] NZCA 261
- Case
- [2024] NZCA 261
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether the applicants had demonstrated that a miscarriage of justice might have occurred, which would justify granting leave for a second appeal. This involved assessing whether the lower courts had correctly identified the aggravating factors and appropriately weighed them in determining the starting point for sentencing. The Court also needed to consider whether the starting point of 10 years was excessive in light of comparable cases.
The Court of Appeal found that the applicants had not established any error in the approach taken by the lower courts. The Court agreed with the District Court's assessment that the offending fell within band 3 of R v Taueki, involving three or more aggravating factors where the combination was particularly grave. The Court considered that the premeditation, the vulnerability of the victim, and the extent of harm caused were all appropriately identified as aggravating factors. The Court also found that the starting point of 10 years' imprisonment was justified given the severity of the injuries inflicted and the overall circumstances of the case.
The applications for leave to bring second appeals were declined. The Court held that the applicants' arguments were essentially about the weight given to different factors, which was inherently a matter for the discretion of the sentencing judge. The Court found no basis to interfere with the lower courts' decisions.
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