Buksh v Police - [2014] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-2 [2014] NZHC 1670

BETWEEN
FARHAT BUKSH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 July 2014

Counsel:

K Li for the Appellant
S Elliott and E I Haronga for the Respondent

Judgment:

16 July 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 16 July 2014 at 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Auckland
Public Defence Service, Waitakere

BUKSH v POLICE [2014] NZHC 1670 [16 July 2014]

Introduction

[1] The appellant pleaded guilty to a charge under s 24(b)(i) of the Summary Offences Act 1981 that on 4 August 2013, being reckless as to whether wasteful deployment or diversion of deployment of police personnel would result, he made a statement to Police Northern Communication that gave rise to serious apprehension for the safety of Manjeshna Mani Goundar, knowing that such statement was false.

[2] On 26 November 2013 the appellant was sentenced by Judge S J O’Driscoll in the District Court at Waitakere to a fine of $250 and court costs. The Judge declined the appellant’s application to discharge him without conviction.

[3] The appellant now appeals against the Judge’s refusal to discharge him

without conviction.

Background facts

[4] At the relevant time the appellant was in a de facto relationship with Ms Goundar. On 4 August 2013 he was at their home address while she was out socialising with friends.

[5] When Ms Goundar failed to return home at the expected time, the defendant sent some 25 text messages to her between the hours of 3 am and 6 am, which were described in the summary of facts as having a jealous and possessive undertone. The appellant also telephoned Ms Goundar some 52 times after she failed to reply to his text messages.

[6] Ms Goundar arrived home at about 5.30 am with another person. The summary states that the appellant became extremely enraged and a verbal argument ensued. After a short time Ms Goundar left the address with the friend as she did not want the argument with the appellant to escalate. The appellant then telephoned Ms Goundar’s mother stating that he was going to leave her if she did not return home. He then contacted the police stating that Ms Goundar had been kidnapped.

[7] According to the summary of facts, as a result of the appellant’s actions a considerable deployment of police staff and resources from several districts were deployed in an effort to apprehend the vehicle in which Ms Goundar had allegedly been kidnapped.

[8] When spoken to by the police the appellant said that he had let his emotions get the better of him.

District Court decision

[9] After setting out the material facts the Judge recorded the requirements of ss 106 and 107 of the Sentencing Act 2002 and noted the three-step approach endorsed by the Court of Appeal in the decisions to which I refer below: namely, as a…

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 Buksh v Police

Details

AGLC: Buksh v Police [2014] NZHC 1670
Case: [2014] NZHC 1670
Decision Date: 16 July 2014

CaseChat Overview and Summary

In Buksh v Police, the appellant, Farhat Buksh, appealed against the decision of the District Court to refuse his application for discharge without conviction following a guilty plea to a charge of wasting police resources. The appellant had made a false statement to the police that his partner had been kidnapped, leading to a significant deployment of police resources. The District Court had declined the appellant's application to discharge him without conviction and imposed a fine of $250 with court costs. The appellant argued that the consequences of a conviction were out of all proportion to the gravity of the offending and that he should have been discharged without conviction.

The High Court, in dismissing the appeal, found that the District Court had correctly applied the three-step approach mandated by s 107 of the Sentencing Act 2002. The court considered the gravity of the offending, the direct and indirect consequences of a conviction, and whether the consequences were out of all proportion to the gravity of the offence. The court found no error in the District Court's analysis and concluded that the consequences of the conviction were in proportion with the serious nature of the offending. The appeal was dismissed, and the District Court's decision was upheld.

Orders