Bakhshi v The King - [2023] NZHC 3597

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-526

CRI-2023-404-527 [2023] NZHC 3597

BETWEEN
TARAT BAKHSHI and ADIL TAJEK

Appellants

AND

THE KING

Respondent

Hearing: 5 December 2023

Appearances:

A N Gruebner for the Appellants P R McNabb for Respondent

Judgment:

8 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 8 December 2023 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
J D Munro, Barrister, Auckland
A N Gruebner, Barrister, Auckland Tucker & Co, Auckland
Meredith Connell, Auckland

BAKHSHI v R [2023] NZHC 3597 [8 December 2023]

[1] This is an appeal by both Mr Bakhshi and Mr Tajek (the appellants) against sentences imposed on 27 September 2023 by Judge K Lummis for a charge of wounding with intent to cause grievous bodily harm under the Crimes Act 1961, s 188(1).1 The offending took place on 24 November 2021, when the victim was attacked by the appellants using a machete and a hunting knife. The victim suffered life threatening injuries and was hospitalised for 12 days.

[2] The Judge adopted a starting point of 10 years’ imprisonment for the offending by Mr Bakhshi and Mr Tajek. After applying discounts for personal mitigating factors and guilty pleas, Mr Tajek received an end sentence of three years’ imprisonment and Mr Bakhshi received an end sentence of three years and six months’ imprisonment.

[3] Mr Bakhshi and Mr Tajek appeal their sentences on the grounds that the starting point was too high. As a result, the end sentences imposed were manifestly excessive. There is no issue taken with the discounts that were granted.

Legal principles

[4] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

[5] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.5

1      R v Bakhshi [2023] NZDC 22262.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
4 At [36].
5 At [32].

[6] Appellate courts do not indulge in mere tinkering with a sentence.6 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

The offending

[7] On the afternoon of 24 November 2022, Mr Bakhshi and Mr Tajek had travelled to Glen Eden armed with a machete, knives and starter pistols. They intended to confront the victim. The appellants travelled in a white Audi and were…

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 [2023] NZHC 3597
Case: [2023] NZHC 3597
Decision Date: 8 December 2023

CaseChat Overview and Summary

In this case, the appellants, Mr Bakhshi and Mr Tajek, appealed their sentences for a charge of wounding with intent to cause grievous bodily harm. The offending occurred on 24 November 2021, when the victim was attacked with a machete and a hunting knife, resulting in life-threatening injuries. The appellants were sentenced to three years and six months' and three years' imprisonment, respectively. The appellants argued that the starting point of 10 years' imprisonment was too high and that the resulting sentences were manifestly excessive. The court was required to decide whether there was an error in the imposition of the sentence that warranted a different sentence being imposed.

The court found that the appellants' arguments did not establish that the starting point was too high. The court agreed with the sentencing Judge that the premeditation, vulnerability of the victim, and extent of harm caused were all valid aggravating factors. The court also found that the offending fell within band three of the principles discussed in R v Taueki, rather than band two as argued by the appellants. The court distinguished the cases relied on by the appellants, finding that they were not sufficiently analogous to the present case. The court concluded that the starting point of 10 years' imprisonment was within range and there was no basis for setting aside the sentences imposed.

The appeal was dismissed, and the sentences imposed by the sentencing Judge were upheld.

Orders