R v Bahadori-Esfahani - [2019] NZHC 1532

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-012803

[2019] NZHC 1532

THE QUEEN

v

FARSHAD BAHADORI-ESFAHANI

Hearing: 2 July 2019

Appearances:

E Smith for the Crown

M Ryan for the Defendant

Sentencing:

2 July 2019

SENTENCING NOTES OF WOOLFORD J

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: M Ryan, Auckland

R v BAHADORI-ESFAHANI [2019] NZHC 1532 [2 July 2019]

[1] Mr Farshad Bahadori-Esfehani, you appear for sentence today having pleaded guilty to:

(a)One charge of dangerous driving causing death;1

(b)One charge of causing death while driving with an excess breath alcohol proportion;2

(c)One charge of failing to stop or ascertain injury or death after crash.3

[2] The Crown submits that a starting point of five years’ imprisonment for the lead charge is appropriate, with an uplift of 18 months for the associated charges. Accordingly, the Crown submits that the appropriate starting point is in the vicinity of six years and six months’ imprisonment with the following adjustments:

(a)A guilty plea discount;

(b)A discount for other personal mitigating factors.

[3] The end sentence put forward by the Crown is in the vicinity of five years and six months’ imprisonment.

[4] Your counsel submits that a starting point of four years’ imprisonment for the lead charge is appropriate, with a small uplift for aggravating factors and associated offending. Your counsel submits the following adjustments should apply:

(a)A 25 per cent guilty plea discount;

(b)A discount for youth, lack of prior convictions, remorse and engagement in restorative justice.

1      Land Transport Act 1988, s 36AA. The maximum penalty is 10 years imprisonment or $20,000 fine, and at least 12 months’ disqualification from driving.
2      Land Transport Act 1988, ss 61(1)(a) and 61(3AA). The maximum penalty is 10 years imprisonment or $20,000 fine, and at least 12 months’ disqualification from driving.
3      Land Transport Act 1988, s 36(1)(c). The maximum penalty is 5 years imprisonment or a $20,000 fine, and at least 12 months’ disqualification from driving.

[5] The end sentence put forward by your counsel is twelve months’ home detention and 200 hours of community work.

Agreed summary of facts

[6] On 23 December 2017 at around 4.30 am, you were driving a black Mercedes- Benz motor vehicle after having consumed alcohol throughout the evening. There was a passenger in your vehicle. You drove the vehicle into Chancery Carpark on Bacons Lane. You collided with a pay station, causing minor damage. You were initially not permitted to enter the carpark. An altercation with security staff followed. Police were called. You drove your vehicle to the exit barrier and were permitted to leave the carpark. Police called for you to stop, but you did not.

[7] Leaving the carpark, you drove onto Kitchener Street, Waterloo Quadrant, and then Symonds Street. Police analysis has concluded your vehicle was travelling at an average speed of 87 kilometres per hour between Waterloo Quadrant and the crash scene. You drove through an amber light…

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.

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Details

Case: [2019] NZHC 1532
Decision Date: 2 July 2019

CaseChat Overview and Summary

The case of R v Bahadori-Esfahani involved the sentencing of Farshad Bahadori-Esfahani who had pleaded guilty to dangerous driving causing death, causing death while driving with an excess breath alcohol proportion, and failing to stop or ascertain injury or death after a crash. The court was required to determine an appropriate starting point for sentencing, taking into account both aggravating and mitigating factors. The Crown argued for a starting point of five years' imprisonment with an uplift for the associated charges, while the defence submitted a starting point of four years' imprisonment was appropriate.

The High Court of New Zealand, Auckland Registry, considered the arguments and found that the relevant aggravating factors in this case were the excessive speed, the attempt to avoid detection or apprehension, and the prolonged, persistent, and deliberate course of very bad driving. The court also considered the mitigating factors presented by the defence, including the defendant's youth, lack of prior convictions, genuine remorse, and engagement in restorative justice. The court found that a discount of 33% was appropriate, resulting in a sentence of three years and eight months' imprisonment. In addition to the imprisonment, the defendant was disqualified from holding or obtaining a driver's licence for four years and ordered to pay $12,000 to the victim's family.

Orders