Takhar v Police - [2018] NZHC 3229

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

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.

Keep reading for free

Create a free CaseChat account to read Takhar v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 3229
Decision Date: 10 December 2018

CaseChat Overview and Summary

Victor Takhar appealed against his sentence in the High Court of New Zealand, arguing it was manifestly excessive. Takhar had pleaded guilty to various charges, including threatening to kill police officers, resisting arrest, and assault with intent to injure. He was sentenced to four years' imprisonment with a minimum period of imprisonment (MPI) of two-thirds the sentence. Takhar's grounds of appeal included that the sentencing judge did not have certain evidence, the starting point was too high, and the judge failed to consider his rehabilitative capacity. The court found that Takhar's application to introduce new evidence was not admissible as it was not objected to at the original sentencing. The court also noted that the mitigating factors presented by Takhar's lawyer did not provide sufficient evidence to warrant a discount in his sentence. The court re-examined the sentence and determined that a starting point of two and a half years was more appropriate, given the circumstances of the case. The court allowed the appeal against sentence, substituted the sentence with three years and two months' imprisonment, and quashed the order for an MPI.

Orders