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 accompanied by two others who travelled separately in a blue Toyota Prado. The attack took place in a cul-de-sac in Glen Eden called Virgo Place. When they arrived there, the blue Prado parked on Solar Road, near Virgo Place. Mr Bakhshi and Mr Tajek drove the white Audi into the Virgo Place cul-de-sac and parked down a side street with no exit.

[8]    The appellants waited there for some 40 minutes until 2 pm when the victim walked down Virgo Place with some associates. At the same time, a white Mercedes containing a number of associates of the victim drove past the blue Prado and turned into Virgo Place. Those sitting in the blue Prado recognised the white Mercedes and started to drive away.

[9]    When Mr Bakhshi and Mr Tajek saw that they were outnumbered, they attempted to leave the street driving the white Audi. They travelled in the direction of the Solar Road exit, but the Mercedes in the middle of the street blocked their exit. The victim’s associates got out of the Mercedes, with one carrying a baseball bat. At that point Mr Bakhshi and Mr Tajek drove the white Audi towards a gap between the Mercedes and a parked van. That was where the victim was standing. The Audi struck the victim, causing him to fall to the ground and suffer serious leg injuries. The Audi was damaged and came to a stop. The victim’s associates ran away.

[10]   The victim, writhing and screaming in pain, attempted to crawl off the road. He dragged himself onto the footpath. At that point, Mr Bakhshi and Mr Tajek got out of the Audi. Mr Bakhshi was armed with the large hunting knife. Mr Tajek was wearing a full face mask and was armed with the large machete. They reached the

6      R v Boyd (2004) 21 CRNZ 169 at [38].

victim and slashed him, causing lacerations to his arms, back and torso. Following this prolonged attack, they took the victim’s shoulder bag and returned to their white Audi.

[11]   At that point, the appellants’ associates driving the blue Prado returned to Virgo Place because they had heard the crash. Mr Bakhshi and Mr Tajek returned to the white Audi intending to leave in it, but they found it was undriveable. They ran up the street and got into the blue Prado and all four left in that car. As the blue Prado reversed out of the street, a person from inside the car fired the starter pistol containing blank cartridges multiple times in the direction of the victim.

[12]   Police apprehended the blue Prado in New Lynn a short time later, with all four co-offenders found in the car. A search of the vehicle located the weapons. Property belonging to the victim, including his wallet, driver’s licence and a set of keys and shoulder bag, were also located inside the vehicle. The key for the damaged white Audi was also recovered from inside the blue Prado.

District Court decision

[13]   Judge Lummis summarised the offending, and considered analogous cases to arrive at a starting point of 10 years’ imprisonment, taking into account the following aggravating features (as well as the two attackers outnumbering the victim):

(a)Premeditation — This offending was highly premeditated, given that the appellants armed themselves with weapons and took a full face mask. Further, the appellants waited in the vehicle for a full 40 minutes before the victim appeared.

(b)Vulnerability of the victim — Once he had been hit by the Audi, the victim was lying prone on the street with compound fractures to his legs. He was not able to get up and run away and, by the time the attack actually occurred, his associates had left him.

(c)Extent of harm caused — The victim suffered deep lacerations to the back and side of his torso, a collapsed lung, a five cm laceration to his diaphragm and wounds to his forearm and right thumb. From being hit by the Audi, he suffered a wound to his left lower leg, a fractured rib, compound fractures to his left tibia and fibula, and a damaged left kneecap. The injuries were life-threatening and required emergency surgery, leaving the victim in hospital for 12 days and having to undergo further surgery.

Appellants’ submissions

[14]   Counsel for the appellants submits that this case should be considered as falling within band two rather  than  band  three  as  discussed  in  the  guideline  judgment R v Taueki,7 and that the sentencing Judge gave too much weight to the three aggravating features of premeditation, victim vulnerability and harm caused.

[15]   In terms of premeditation, counsel emphasises that both appellants attempted to leave the street before the offending occurred. If they had not been blocked, then the pair would have left the scene. The victim and his associates effectively caused the confrontation by preventing Mr Bakhshi and Mr Tajek from fleeing. In those circumstances, the level of premeditation should not be considered significant.

[16]   On the question of victim vulnerability, at the outset of the confrontation the victim had a group of associates, one armed with a baseball bat, in very close proximity. It is not a situation where the victim was outnumbered and alone. The vulnerability was caused by the attempt of the victim and his associates to block    Mr Bakhshi and Mr Tajek from fleeing the scene. Accordingly, this should not have been treated as a relevant aggravating factor, or otherwise it should be considered only at the lowest level.

[17]   Finally, any harm caused by the vehicle collision should be disregarded as caused by the victim and his associates blocking Mr Bakhshi and Mr Tajek from fleeing. In terms of the injuries from slashing, on the facts these should not be treated

7      R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.

as aggravating because that level of seriousness is inherent in the offending itself. Furthermore, no victim impact statement was provided, so there was no factual information to substantiate lasting physical or psychological impact. In the circumstances, it was unsafe for the Judge to give any weight to this factor.

[18]   Counsel for the appellants say that a starting point in the region of seven to eight years’ imprisonment would better reflect the gravity of the offending and is justified by analogy with the following cases:

(a)R v Buttar — This case involved a group attack by five defendants who had a prior feud with the victim.8 They attacked their victim’s head and body with a traditional sword and metal rod. Some without weapons prevented the victim from escaping, and also punched and kicked him. While considerable violence was involved, this was not considered to reach an “extreme” level.9 The victim suffered serious lacerations and skull fractures, among other injuries. A starting point of seven years’ imprisonment was imposed for the principal offender and upheld on appeal.10

(b)Diaz v R — Mr Diaz was the main participant in a group attack involving violence, multiple attackers, use of tree branches and a car as weapons, serious injury and victim vulnerability.11 Premeditation was not considered to be a significant feature, but nor could it be ignored. A starting point of seven years’ imprisonment was upheld on appeal to be “well within range, even lenient”.12

(c)R v Chen — Mr Chen drove to the victim’s house late at night to confront the victim.13 The two got into a heated argument involving pushing and shoving. Mr Chen retrieved a knife from his car and returned to stab the victim in the shoulder. This wound entered the

8      R v Buttar [2008] NZCA 28.

9 At [12].

10 At [24].

11     Diaz v R [2021] NZCA 426.

12     At [10]–[15] per Thomas and Wylie JJ.

13     R v Chen [2023] NZHC 1947.

victim’s chest cavity and severed an artery. A starting point of between six years and six months’ and seven years’ imprisonment would have been regarded as appropriate if death had not ensued, reflecting that there was a limited degree of provocation, but Mr Chen had returned with a knife knowing the victim was unarmed.14

[19]   If the Court considers a starting point of seven years’ imprisonment is appropriate, it would bring Mr Tajek’s sentence within the range for home detention to be considered after discounts are applied. The appellants consider that home detention is appropriate for Mr Tajek because he was 18 years old at the time of offending and had endured an unfortunate upbringing which made him particularly susceptible to the influence of peers and needing to protect those close to him.

Analysis

[20]   As referred to in the sentencing notes, the Judge specifically took into account the submission that the appellants had tried to leave the scene prior to the offending occurring but had been blocked. The Judge’s analysis was that, while the attack had not unfolded in the way the appellants had envisaged, this did not negate extensive planning and premeditation (as reflected in the weapons taken to the confrontation, the face mask, and lying in wait for more than 40 minutes for their victim to arrive).

[21]   The respondent also points out that the victim’s associates had run away by the time the victim lay prone on the ground after he had been struck by the car. At that point, the appellants could have left safely. Instead, they decided to get out of the car with their weapons to assault the victim who was lying on the ground.

[22]   I agree with the analysis of the Judge that the thwarted initial attempt to leave does not undermine the premeditation that went into planning the confrontation. This is also consistent with the appellants carrying on with the intended attack after the victim’s associates had fled. Accordingly, I see no error in the Judge treating this as a significant aggravating feature of the offending.

14     At [14]–[15]

[23]   For similar reasons, the presence of the victim’s associates in the vicinity during the lead-up does not minimise the victim’s vulnerability at the time the slashing occurred. The victim’s associates had run away from the scene after the victim had been struck by the Audi. After that, the appellants decided to carry out their initial plan to slash the victim with the machete and the hunting knife, when they knew he was defenceless in the sense referred to in Taueki.15 Accordingly, I accept that the sentencing Judge was correct to regard the vulnerability of the victim as an aggravating feature of the offending.

[24]   The sentencing Judge specifically took into account the fact that there was no victim impact statement substantiating the precise nature of the harm caused beyond the physical injuries described in the summary of facts. I accept that it was nevertheless available for the sentencing Judge to draw an inference that psychological harm would follow from the nature of those injuries. While significant injury is inherent in any charge of grievous bodily harm, I accept that there was intentional infliction of very severe injuries in this case, which the machete and hunting knife were bound to cause when used in this way. I see no error that needs correction in treating the extent of harm as an aggravating factor in this case.

[25]   In terms of selecting the appropriate band within the principles discussed in Taueki, I accept that the nature of the offending described in the summary of facts and analysed in the sentencing notes falls within the band three example, rather than band two.16

[26]   I also take the view that the facts are properly distinguishable from the three less serious cases relied on by the appellants:

(a)The victim in Buttar was not vulnerable and the injuries were not life-threatening. There was also a lower degree of premeditation (with no pre-planning).

15     R v Taueki, above n 7, at [31(i)]. See also Tuau v R [2013] NZCA 623 at [26].

16     At [39(a)] and [41(a)], comparing the examples given by the Court of Appeal for a “concerted street attack” compared with a “serious concerted street attack”.

(b)In Diaz, the victim threw the first punch, the victim was not vulnerable at the beginning, in fact there was an issue of self-defence at the outset, the tree branches were used opportunistically from the scene, there was less premeditation, and the injuries were much less serious.

(c)In Chen, the victim was known to be unarmed but was otherwise not vulnerable and there was a lower degree of premeditation, with events only escalating after a heated argument. The knife had been in the car in the fishing kit, rather than taken to the scene for the purposes of the confrontation. This contrasts with the present case with the appellants taking a machete and hunting knife to the victim’s street with the intention of using those weapons to attack the victim.

[27]   Counsel for the respondent also referred to Pink v R, which I accept is analogous. In that case, a group of men attacked a victim on a main street, knocking him to the ground, punching and kicking him, and striking him with a claw hammer and axe. The victim sustained very serious injuries to both his knees and left ankle, requiring surgery. The attack was classified as band three, and a starting point of ten years’ imprisonment was imposed. As observed by the Court of Appeal, there were at least three aggravating factors, including multiple attackers, extreme violence (even though only the blunt end of the axe was used), serious injuries and an element of premeditation in bringing an axe to the scene. I acknowledge that counsel for the appellants seeks to distinguish this as a gang case, which is not present here, but that factor was simply that they were wearing gang regalia rather than gang warfare being involved.17

[28]   Having regard to the facts of this case and the case law referred to, and considering matters in the round, I accept that the appellants’ offending falls within band three of Taueki.

17     Pink v R [2022] NZCA 306.

[29]   Stepping back to consider whether the sentence imposed is a just one in all the circumstances,18 I consider that the starting point of 10 years’ imprisonment was within range and there is no basis for setting aside that starting point, or the end sentences arrived at.

[30]   Given that I do not see any basis for reducing the starting point, it is unnecessary for me to consider whether home detention would be considered appropriate for Mr Tajek if the end sentence imposed on him were two years’ imprisonment or less.

Result

[31]The appeal is dismissed.

O’Gorman J

18     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [49].