Takhar v Police
[2018] NZHC 3229
•10 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000313
[2018] NZHC 3229
BETWEEN VICTOR TAKHAR
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 November 2018 Appearances:
Yoon Lee for the Appellant
Richie Belcher for the Respondent
Judgment:
10 December 2018
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered by me on 10 December 2018 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
TAKHAR v NEW ZEALAND POLICE [2018] NZHC 3229 [10 December 2018]
Introduction
[1] The appellant, Victor Takhar, pleaded guilty to a range of charges which arose out of a violent confrontation he had with the Police. He was sentenced to four years’ imprisonment with a minimum period of imprisonment (“MPI”) of two-thirds.1 He appeals that sentence. He says it was manifestly excessive.
Background
[2] The following background is primarily drawn from the summary of facts to which Mr Takhar pleaded guilty.
[3] On 31 May 2018, Mr Takhar was seated in the driver’s seat of his car which was parked between the roadside and a ditch on State Highway 12, near Dargaville. Concerned for the occupant’s welfare, a member of the public stopped to check. Mr Takhar was in an aggressive mood. He roundly abused the member of the public. He told him to “fuck off” and threatened to kill him. Unsurprisingly, the Police were contacted.
[4] When they arrived they found Mr Takhar slumped in the driver’s seat. The key was in the ignition. They spoke to Mr Takhar who showed signs of recent alcohol intake. They required him to undergo a breath screen test. He refused. He was then told that he was required to accompany the Police to the Dargaville Police Station. He refused that direction. As a consequence, he was advised he was under arrest for failing to accompany. Mr Takhar became incensed. He told the two attending officers that he would kill them and rip their eyeballs out. This led the Police to pepper spray Mr Takhar. But it seems this did not deter him. He picked up a propane gas torch and ignited it. The summary of facts records the flame was approximately one metre in length although there was controversy over that claim, as discussed below.
[5] Mr Takhar presented the lit gas torch at the Police. He threatened to burn them alive. This action prompted the Police to take cover before deploying a taser. Despite that, Mr Takhar continued to threaten the Police with the gas torch. He told the officers
1 Police v Takhar [2018] NZDC 18645.
he would hunt them down and kill them and their families. Eventually, the Police managed to take control. Mr Takhar was subdued, restrained and placed in a Police vehicle.
[6]As a consequence of his actions Mr Takhar was charged with:
(a)refusing an officer’s request for a blood specimen (third or subsequent);2
(b)refusing to accompany an officer;3
(c)two charges of resisting Police;4
(d)two charges of threatening to kill;5
(e)two charges of assault with intent to injure;6 and
(f)possession of an offensive weapon.7
Guilty plea and sentencing
[7] On 11 June 2018, Mr Takhar pleaded guilty to all charges. He did so on the basis of the summary of facts. On 31 August 2018, he was sentenced by Judge B A Gibson in the District Court at Auckland.
[8] The Judge took the two charges of threatening to kill as the lead offences. He found three aggravating factors were present. These were that the threats were made to the Police in the course of their duty; the threat of serious violence coupled with a facility to give effect to the threat; and the actual danger posed to the officers.
2 Land Transport Act 1998, s 59(1)(b).
3 Section 59(1)(b).
4 Summary Offences Act 1991, s 23(a).
5 Crimes Act 1961, s 306.
6 Section 193.
7 Section 202A(4)(a).
[9] The Judge found the offending sat at the serious end of the range. He fixed a starting point of three and a half years’ imprisonment. He then uplifted the sentence by one year on account of the other contemporaneous offending, and imposed a further six-month uplift for Mr Takhar’s serious criminal history. These included two convictions for threatening to kill, as well as other convictions for violence.
[10] After allowing a 20 per cent discount for a “reasonably prompt plea of guilty”, the Judge imposed a sentence of four years’ imprisonment. He determined that an MPI of two years and eight months’ imprisonment was justified, i.e. the statutory maximum of two-thirds. He adopted that course observing it was necessary in order to denounce Mr Takhar’s conduct, hold him accountable, protect the public and instil in him a sense of responsibility.
Grounds of appeal
[11] The grounds advanced on Mr Takhar’s behalf are several. The first three rely on evidence and material which was not before the Judge:
(a)the Judge did not have the benefit of a Tactical Options Report Form (“TORF”) prepared by the Police following the altercation, which contradicts some of the findings the Judge made at sentencing;
(b)the technical specifications of the Bernzomatic TS4000 gas torch shows the primary flame is one inch long, in contrast to the metre long flame referred to in the summary of facts;
(c)having regard to (a) and (b), the starting point adopted by the Judge was too high; and
(d)the Judge failed to adequately take into account Mr Takhar’s rehabilitative capacity if given the opportunity to take part in a drug rehabilitation course.
The first, second and third grounds of appeal
[12] These grounds can be dealt with together. At a pre-hearing procedural call in this Court, Lang J directed that the appeal was to be determined in accordance with the evidence before the District Court.8 He added that any application to adduce new evidence needed to be accompanied by a memorandum and affidavits in support.
[13] On this appeal Mr Lee has all but ignored Lang J’s direction. No formal application seeking leave has been filed. Instead, Mr Lee appears to have incorporated an application for leave in his written submissions in support of the appeal. No affidavits have been filed. Instead, the material Mr Lee seeks this Court to receive is attached to the back of his memorandum of written submissions. The evidence appears to be of two types:
(a)The TORF, which Mr Lee received from the Police pursuant to their disclosure obligations. Mr Lee claims this document contradicts the summary of facts and, in particular, the allegation Mr Takhar resisted the Police and could not be removed from the car. Mr Lee submitted the document reveals that Mr Takhar was in fact compliant and passive.
(b)The technical specifications of the Bernzomatic TS4000 gas torch, which reveals the flame produced by the device is 80 – 90 millimetres in contrast to the statement in the summary of facts that the flame was approximately one metre in length.
[14]I am not prepared to admit this evidence on appeal, for three reasons.
(a)First, Mr Lee appeared for Mr Takhar at all stages including sentencing. He did not object to aspects of the agreed summary of facts, and after Mr Takhar entered a guilty plea he did not seek a disputed facts hearing.9 That may be because the material he now seeks to have admitted on this appeal was not known to him at the time.
8 Takhar v Police HC Auckland CRI-2018-404-313, 15 November 2018 (Minute of Lang J).
9 Sentencing Act 2002, s 24.
Nevertheless, in the absence of any notice of contest the Judge was entitled to treat the summary of facts as agreed.
(b)Secondly, the inference Mr Lee seeks the Court to draw from the contents of the TORF is not available. The document refers to Mr Takhar as being “extremely aggressive” and “threatening to kill” before attempts were made to get him out of the car. He was able to deploy the gas torch while still in the car. It was only after he was tasered that the Police were able to remove him and place him on the ground. That he may have been compliant and subdued at that stage is not inconsistent with the Police account of the earlier events.
(c)Finally, even if the technical data relating to the gas torch is correct, this does not materially affect an assessment of the totality of the offending. In my view, the primary aggravating factor is not the length of the flame, but rather that the torch was ignited and presented at the officers at what could only have been close quarters. This was an extremely aggressive and dangerous act on any analysis, irrespective of the actual length of the flame. It was conduct capable of causing the officers very serious bodily injury.
[15] For these reasons, I am not prepared to admit the evidence on the appeal. Mr Lee’s application is refused.
[16] At the hearing Mr Lee also sought leave to file supplementary authorities in support of the appeal. I refused leave, but on 5 December 2018 Mr Lee filed a memorandum again seeking leave. These authorities do not materially alter the submissions made at the hearing, or my view of the appeal. Accordingly leave is declined.
Fourth ground of appeal
[17] Mr Lee also submitted that the Judge failed to take into account Mr Takhar’s personal circumstances, and in particular his addiction to methamphetamine which he submitted was the “root cause of his offending”. Mr Lee forcefully submitted that if
Mr Takhar’s drug issues were resolved, he would be able to get his life in order and be a “responsible citizen and good father to his daughter”.
[18] In fact, the Judge was well aware of Mr Takhar’s drug addiction issues. He referred to them in his sentencing remarks. He expressed hope that Mr Takhar’s problems could be addressed through undertaking rehabilitative programmes in prison. In the pre-sentence report the author noted that appropriate courses would be available to Mr Takhar. The difficulty for the Judge was that while Mr Takhar expressed a willingness to participate in rehabilitative courses, he denied he had a drug dependency. This served as an impediment to any discount for Mr Takhar’s addiction issues. In the absence of any firm evidence supporting Mr Lee’s submission, or evincing a willingness on Mr Takhar’s part to address his drug issues, there was little the Judge could do in terms of a discount. That remains the position.
Re-examining the sentence
[19] Although I have rejected each of Mr Lee’s criticisms, as this appeal is by way of rehearing I must make my own assessment of the relevant facts although, as noted above, I am constrained in that exercise by the summary of facts to which Mr Takhar pleaded guilty. I must still be satisfied there are no errors in the sentence imposed and that it was not manifestly excessive.10
[20] The first issue I consider is whether the starting point reached by the Judge was too high. I shall then turn to examine the aggravating and mitigating factors relative to Mr Takhar and thus, whether the end sentence of four years’ imprisonment and the MPI was manifestly excessive and a different sentence should be imposed.
Starting point
[21] I agree with the parties that the Judge was correct to treat the two charges of threatening to kill as the lead offences.
10 Criminal Procedure Act 2011, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].
[22] There is no tariff decision for threatening to kill cases.11 This no doubt reflects the variation in the manner the offence may be committed is all but unlimited. Thus, the circumstances will always be decisive. As the Court of Appeal noted in Faaleaga v R, the key factors in assessing the culpability in threatening to kill cases will include:12
“… premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim. The inability to immediately effect a threat reduces the terror it might otherwise invoke, reducing the extent of harm resulting from the offence and thereby reducing culpability. We do not agree with the sentencing Judge that this factor cannot detract from the severity of the offending. Whether it does or not will turn on the specific facts.”
[23]The following aggravated factors were present in this case:
(a)Threats made to victims in public office: The two victims of the offending were Police officers acting in the course of their duty. As the Crown submitted, Police are often required to respond to situations which put their safety at risk, to prevent harm to the public. Offending against Police will thus elevate the seriousness. This is a factor which is expressly reflected in s 9(1)(fa) of the Sentencing Act 2002.
(b)Nature and frequency: Mr Takhar made a number of threats to kill, not only toward both officers and their families, but also the member of the public who engaged with him earlier.
(c)Ability of the offender to effect the threat, and actual danger: These factors are interrelated, and should not be treated separately. Mr Takhar’s threats presented a real danger to the officers. He had the ability to carry out his threats through the use of the gas torch. As noted earlier, these threats were real regardless of the actual length of the flame.
11 Burchell v R [2010] NZCA 314 at [25].
12 Faaleaga v R [2011] NZCA 495 at [11].
[24] I agree with the Judge that the combination of these aggravating factors justified a stern starting point. However, having regard to the authorities, I am not satisfied that a starting point of three and a half years is justified.
[25] In Allan v Police, a 22-month starting point was endorsed on appeal.13 There the offender threatened to kill his domestic partner. His offending was premeditated. The threat was made to the victim directly. And it was accompanied by the presentation of an unloaded handgun.
[26] In Allan, the domestic context was an aggravating factor.14 While the fact that Mr Takhar’s threats were directed to the Police is an aggravating factor, it is in my view comparable to offending committed in a domestic setting. As Mr Belcher for the Crown properly acknowledged, from the victim’s perspective in Allan the actual danger was very substantial indeed. She rightly feared for her life.
[27] However, I accept that other aspects of Mr Takhar’s offending are more seriously aggravating than in Allan. The first is the frequency and variety of his threats. They were particularly targeted and were directed not only at the officers and their families, but also the member of the public. The threats towards the officers and their families, in particular, carried sinister undertones.
[28] The second distinguishing factor is that in Allan, the handgun held by the offender was, in fact, unloaded. In the present case, Mr Takhar held an ignited gas torch towards the officers as he delivered the threats. He had a greater ability to give effect to his threat by the infliction of serious harm.
[29] R v Forrest is also comparable.15 There a starting point of three and a half years was adopted for three charges of demanding with menaces and four charges of threatening to kill. In that case, Mr Forrest demanded with menaces from three lawyers, whom had either acted for Mr Forrest in litigation, or had acted for different parties. The threatening to kill charges related to another letter sent, threatening to kill four persons with a high-powered rifle. Some were victims of his earlier offending.
13 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.
14 See Solicitor General v Hutchison [2018] NZCA 162 at [27].
15 R v Forrest CA90/06, 12 October 2006.
The letter also included a map of a house indicating where each victim would be killed. Enclosed were cards containing personal details of the victims and a description of when Mr Forrest would escape from custody for the purpose of carrying out his threats.
[30] As the Court of Appeal found, the threats were particularly pernicious and calculated:16
“[The] background illustrates the seriousness of the threatening to kill charges which were made against [the victims]. There was considerable planning and thought that went into the threats to kill, given the detail of the threats. This was designed to frighten the victims and make them believe that the threats were capable of being carried out. The appellant went so far as to tell the victims when he proposed to escape from prison to carry out these threats. The victim impact report records the serious effect these threats had on these victims. Given the appellant had previously illustrated his capacity to carry out such threats, such fear seems reasonably based. The fact that this offending occurred while the appellant was serving a sentence of imprisonment for similar offending was a serious aggravating feature.”
[31] Against that background, a starting point of no more than two and a half years’ imprisonment, higher than that in Allan but 12 months lower than Forrest, would seem appropriate. In that regard, I note the starting point in Forrest was also for demanding with menaces offending. A higher starting point on the threatening to kill charges is theoretically available, but because of the inter-relationship between the aggravating factors and the other charges Mr Takhar was convicted on, that would require a proportionately smaller uplift for those charges.
Uplifts
[32] As noted, the Judge made two uplifts. First, he uplifted the sentence by one year to account for the related offending and secondly he applied a further uplift of six months’ imprisonment to reflect Mr Takhar’s previous convictions. In my judgement both of these were appropriate.
[33] The Crown submitted that the cumulative uplift of 18 months was available to reflect both the seriousness of the other offending, as well as a further six-month uplift for Mr Takhar’s previous convictions. However, the starting point I regard as appropriate is stern. It reflects not only the threats to kill, but necessarily includes to
16 At [15].
some extent the offending associated with the assault charge, and the possession of an offensive weapon. The offending incorporated in those charges is inherent in assessing the degree of aggravation, particularly the ability of Mr Takhar to give effect to his threats. Accordingly, in my view, an uplift of no more than one year is justified for the related offending.
[34] I also agree with the Judge that a six-month uplift for Mr Takhar’s previous convictions is appropriate, together with the fact that his offending occurred whilst he was on bail. Mr Takhar has several recent convictions for threatening and violent behaviour, most recently in September 2017. This leaves a provisional sentence of three and a half years before any discounts are applied.
Discounts
[35] For the reasons already discussed, I am not persuaded there was a proper basis on which the Judge could have discounted the sentence in recognition of Mr Takhar’s drug problems.
[36] No issue is taken with the 20 per cent guilty plea discount. I agree it is appropriate having regard to the strength of the prosecution case and the inevitability of conviction.
End sentence
[37] I am satisfied that the appropriate end sentence is one of three years and two months’ imprisonment.
Minimum period of imprisonment
[38] Neither party made submissions on the two-thirds MPI fixed by the Judge. However, I am not satisfied that the MPI applicable under s 84(1) of the Parole Act 2002 will be insufficient for the following purposes:
(a)holding the offender accountable for the harm done to the victim and the community by the offending;
(b)denouncing the conduct in which the offender was involved;
(c)deterring the offender or other persons from committing the same or a similar offence; or
(d)protecting the community from the offender.
[39] A sentence of three years and two months, while less than that imposed in the District Court, remains stern for threatening to kill offending. I am satisfied that the standard minimum period of just over 12 months’ imprisonment will be sufficient to hold Mr Takhar accountable, denounce his conduct, and deter him and others similarly inclined.
[40] Furthermore, after that period, Mr Takhar’s release will be at the discretion of the Parole Board. Given his apparent drug addiction issues, I would expect his eligibility for release is likely to be influenced by the extent of his commitment to rehabilitation and addiction courses, which he will be able to access while in prison. If he can demonstrate he has insight into the underlying causes of his offending and evinces a sincere and realistic commitment to change, the Parole Board will no doubt regard him as a deserving candidate for release after he has served one-third of his sentence.
[41] If those behaviours are not addressed, it is unlikely he will be released at that point. The Parole Board is in a better position than this Court to make the assessment at the relevant time.
Result
[42]The appeal against sentence is allowed.
[43] The sentence of four years’ imprisonment is quashed and substituted with a sentence of three years and two months’ imprisonment.
[44]The order for an MPI is quashed.
Moore J
Solicitors:
Crown Solicitor, Auckland Y Lee, Auckland
0
4
0