Bakhshi v The King - [2024] NZCA 261

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA46/2024
[2024] NZCA 261

BETWEEN	TARAT BAKHSHI Applicant
AND	THE KING Respondent

CA47/2024
BETWEEN	ADIL TAJEK Applicant
AND	THE KING Respondent

Court:	Courtney, Muir and Cull JJ
Counsel:	J D Munro and A N Gruebner-Ballantine for Applicants T Zhang for Crown
Judgment: (On the papers)	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.
[2]Bakhshi v R [2023] NZHC 3597.
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakhshi v The King

Details

AGLC: Bakhshi v The King [2024] NZCA 261
Case: [2024] NZCA 261
Decision Date: 24 June 2024 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard applications from Tarat Bakhshi and Adil Tajek, who sought leave to bring second appeals against their sentences for wounding with intent to cause grievous bodily harm. Both had pleaded guilty and were sentenced to three and a half years and three years' imprisonment, respectively, by the District Court. The applicants claimed that a miscarriage of justice may have occurred due to the mischaracterisation of the aggravating features of their offending and an excessive starting point of 10 years' imprisonment. They argued that the starting point should have been between seven and eight years' imprisonment.

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.

Orders