Bakhshi v R [2024] NZCA 261 (24 June 2024)

Last Updated: 1 July 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA46/2024 [2024] NZCA 261

	BETWEEN	TARAT BAKHSHI Applicant
	AND	THE KING Respondent

CA47/2024
	BETWEEN	ADIL TAJEK Applicant
	AND	THE KING Respondent

Court:	Courtney, Muir and Cull JJ
Counsel:	J D Munro and A N Gruebner-Ballantine for Applicants T Zhang for Crown
Judgment: (On the papers)	24 June 2024 at 10 am

JUDGMENT OF THE COURT

The applications for leave to bring second appeals are declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)

Introduction

• [1] Messrs Tarat Bakhshi and Adil Tajek seek leave to bring second appeals against their sentences, imposed by the District Court, of three and a half years’ imprisonment and three years’ imprisonment respectively, having each pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.^[1] On 8 December 2023, O’Gorman J dismissed appeals against those sentences by both applicants.^[2]
• [2] The applicants say that justice has or may have miscarried,^[3] on the grounds that both previous decisions mischaracterise the aggravating features of the offending which, in turn, had a direct impact on the R v Taueki band in which the offending was placed.^[4]
• [3] They also say that the starting point of 10 years’ imprisonment identified by the District Court Judge was excessive having regard to comparable cases and that this likewise establishes that a miscarriage may have occurred. Counsel submits that a starting point of between seven and eight years’ imprisonment was appropriate.

The offending

• [4] On 24 November the applicants drove to an address in Glen Eden intending to confront the victim. After waiting approximately 40 minutes, the victim arrived on foot with associates. At the same time, a vehicle containing further associates of the victim arrived and parked in the middle of the street, blocking the applicants’ exit.
• [5] Seeing that they were outnumbered, the applicants drove their vehicle into a gap between the vehicle driven by the victim’s associates and a parked van. They struck the victim who was standing nearby. He fell to the ground writhing and screaming in pain with a wound to his lower left leg, a fractured rib, compound fractures to his left tibia and fibula and a damaged left knee cap. He attempted to crawl off the road and onto the footpath.
• [6] Having observed the collision, the victim’s associates ran away. The applicants then exited their vehicle and “rushed” to the victim. Mr Tajek was armed with a large machete and Mr Bakhshi with a large hunting knife. They surrounded the victim and slashed at him causing life threatening injuries before stealing his shoulder bag and leaving the scene with associates in another vehicle. The victim required emergency surgery and was hospitalised for 12 days.

The District Court decision

• [7] Judge K Lummis considered that the offending fell “squarely” into band 3 in R v Taueki.^[5] She set a starting point of 10 years’ imprisonment, that is, at the lower end of band 3 and the top of band 2.^[6]
• [8] She identified the following aggravating features of the offending:

(a) Premeditation — the offending was highly premeditated given that the applicants had armed themselves with weapons and taken full facemasks to the scene. Further, they waited in their vehicle for 40 minutes before the victim appeared.^[7]

(b) Vulnerability of the victim — once he had been hit by the applicants’ car, the victim was vulnerable and defenceless given the gravity of the injuries already sustained.^[8]

(c) Extent of harm caused — in addition to the injuries resulted from collision with the car, the Judge identified deep lacerations to the back and torso, a collapsed lung, a 5 cm laceration to the victim’s diaphragm and wounds to his forearm and right thumb from the subsequent attack.^[9]

(d) Multiple attackers — outnumbering the victim, two to one.^[10]

The High Court decision

• [9] In the High Court the applicants challenged the District Court Judge’s starting point for reasons broadly analogous to those now advanced. No challenge was made to the discounts identified by the District Court Judge.^[11] These resulted in the significantly reduced final sentences identified in [1] above.
• [10] In respect of the argument that the attack was not premeditated, O’Gorman J was unpersuaded by the applicants’ submission that the thwarted initial attempt to leave changed the calculus.^[12] In identifying premeditation as a significant aggravating feature of the offending, she emphasised that the applicants carried on with the intended attack, with life threatening consequences, after the victim’s associates had fled.
• [11] Nor was she persuaded by the argument that the presence of the victim’s associates in the vicinity during the lead-up to the attack, minimised the victim’s vulnerability.^[13] She noted that the associates had decamped after the victim had been struck by the applicants’ car and that, while he was left defenceless, the applicants had decided to carry out their initial plan to slash him with a machete and hunting knife.
• [12] Her Honour also accepted that the District Court Judge was entitled to draw an inference that psychological harm would have followed from the injuries sustained, despite the fact that there was no victim impact statement.^[14] While acknowledging that significant injury is inherent in any charge of grievous bodily harm, she emphasised the severe nature of the injuries which were “bound” to occur when a machete and hunting knife were used in the manner identified.
• [13] She also regarded the case as properly distinguishable from each of the three cases relied upon by the applicants’ counsel.^[15] She then “step[ed] back to consider whether the sentence imposed [was] a just one in all the circumstances” and concluded that there was no basis to set aside the starting point.^[16]

Leave for a second appeal

• [14] The applicants assert that a miscarriage of justice may have occurred or may occur unless the proposed appeal is heard.
• [15] We accept that a prescriptive approach to the application of the “miscarriage” limb in s 253 is to be avoided, and that in appropriate cases, the test may be satisfied by a reasonably available argument that the Court below was in error.^[17] However, we accept the Crown’s submission that different judges may appropriately apply different weight to different factors and the assessment of the relative seriousness of particular aggravating factors is inherently case specific.

Discussion

• [16] We share the District Court Judge’s assessment that the offending was “squarely” within band 3 of Taueki.
• [17] We are unpersuaded by the applicants’ renewed arguments that the assessment of the degree of premeditation, victim vulnerability and victim harm made by the District and High Courts can be impugned to the extent necessary to establish a possible miscarriage of justice (if at all).
• [18] We consider that there were, in fact, six aggravating features, as set out in Taueki — extreme violence, premeditation, serious injury, use of weapons, multiple attackers, and the vulnerability of the victim.^[18]
• [19] In respect of the premeditation point, the District Court Judge emphasised that the applicants had arrived with weapons and a mask and had lain in wait for 40 minutes.^[19] In the High Court the Judge had no difficulty concluding that the offending was highly premeditated and that it was of no or little moment that the applicants had tried to leave the scene before the offending occurred, noting —“the thwarted initial attempt to leave does not undermine the premeditation that went into planning the confrontation”.^[20] We agree.
• [20] At least in terms of the second stage of the offending, what occurred was the result of a highly premeditated plan which was resurrected at the point the victim was incapacitated. The applicants came prepared to inflict grievous bodily harm and they were successful in executing that plan. It is, in our view, artificial to suggest that all the planning that preceded the vehicular assault is irrelevant simply because that aspect of the assault occurred in the context of an initial escape attempt which was abandoned because it was no longer necessary.
• [21] In that respect we consider the case readily distinguishable from R v Chen, where the weapon was not taken to the scene for the purposes of the confrontation but was recovered from the defendant’s vehicle after conflict between the deceased and the defendant had escalated.^[21]
• [22] As to harm, we accept that it was an available inference that psychological harm would inevitably follow from the nature of the identified injuries. Neither the District nor High Court Judges identified this as “lasting harm” as the applicants submit. In any event, the physical injuries inflicted by the applicants were so serious and of such consequence that they were appropriately identified as an aggravating feature. The District Court Judge described them as life threatening, which was accurate having regard to the fact that the victim was a status one admission to hospital (that is critically ill and on mechanical support) and had to undergo emergency surgery.^[22] Taueki specifically recognises that where injuries are “very serious” and particularly where they are “potentially fatal” a higher starting point will be called for because s 9(1)(d) of the Sentencing Act 2002 applies.^[23]
• [23] We also agree with O’Gorman J that the decisions in Buttar, Diaz and Chen are distinguishable for the reasons she identified.^[24]
• [24] In summary, we do not consider the applicants to have established any error in the approach adopted by the lower Courts which would justify a grant of leave to bring a second appeal. We accept the Crown’s submission that the majority of the applicants’ criticisms reduce to disagreement about the weight that the lower Courts have placed on the various aggravating factors. In any event, the starting point was, in our view, fully justified.

Result

• [25] The applications for leave to bring second appeals are declined.

Solicitors:
Ian Tucker, Auckland for Applicants
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Bakhshi [2023] NZDC 22262. Crimes Act 1961, s 188(1) — maximum penalty of 14 years’ imprisonment.

^[2] Bakhshi v R [2023] NZHC 3597.

^[3] Invoking one of the two tests for leave to bring a second appeal in the Criminal Procedure Act 2011, s 253(3)(b).

^[4] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) at [34].

^[5] R v Bakhshi, above n 1, at [29], citing R v Taueki, above n 4.

^[6] Band 2 (involving two or three of the identified aggravating factors) is five to 10 years’ imprisonment; band 3 (involving three or more aggravating factors where the combination is particularly grave), is nine to 14 years’ imprisonment: R v Taueki, above n 4, at [36]–[41].

^[7] R v Bakhshi, above n 1, at [11]–[13].

^[8] At [19] and [20].

^[9] At [21]–[23].

^[10] At [18].

^[11] At [47], [49] and [57].

^[12] Bakhshi v R, above n 2, at [22]

^[13] At [23].

^[14] At [24].

^[15] At [26], citing R v Buttar [2008] NZCA 28; Diaz v R [2021] NZCA 426; and R v Chen [2023] NZHC 1947.

^[16] Bakhshi v R, above n 2, at [29].

^[17] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37].

^[18] R v Taueki, above n 4, at [31].

^[19] R v Bakhshi, above n 1, at [13].

^[20] Bakhshi v R, above n 2, at [22].

^[21] R v Chen, above n 15.

^[22] R v Bakhshi, above n 1, at [23].

^[23] R v Taueki, above n 4, at [31(c)].

^[24] Bakhshi v R, above n 2, at [26].