TAKHAR v NEW ZEALAND POLICE [2018] NZHC 3229

TAKHAR v NEW ZEALAND POLICE [2018] NZHC 3229 [10 December 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000313[2018] NZHC 3229BETWEEN VICTOR TAKHARAppellantAND NEW ZEALAND POLICERespondentHearing: 26 November 2018Appearances: Yoon Lee for the AppellantRichie Belcher for the RespondentJudgment: 10 December 2018JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 10 December 2018 at 4:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] The appellant, Victor Takhar, pleaded guilty to a range of charges which aroseout 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 Heappeals that sentence. He says it was manifestly excessive.Background[2] The following background is primarily drawn from the summary of facts towhich Mr Takhar pleaded guilty.[3] On 31 May 2018, Mr Takhar was seated in the driver's seat of his car whichwas 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 werecontacted.[4] When they arrived they found Mr Takhar slumped in the driver's seat. The keywas in the ignition. They spoke to Mr Takhar who showed signs of recent alcoholintake. They required him to undergo a breath screen test. He refused. He was thentold that he was required to accompany the Police to the Dargaville Police Station. Herefused that direction. As a consequence, he was advised he was under arrest forfailing to accompany. Mr Takhar became incensed. He told the two attending officersthat he would kill them and rip their eyeballs out. This led the Police to pepper sprayMr Takhar. But it seems this did not deter him. He picked up a propane gas torch andignited it. The summary of facts records the flame was approximately one metre inlength 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 themalive. This action prompted the Police to take cover before deploying a taser. Despitethat, Mr Takhar continued to threaten the Police with the gas torch. He told the officers1 Police v Takhar [2018] NZDC 18645.he would hunt them down and kill them and their families. Eventually, the Policemanaged to take control. Mr Takhar was subdued, restrained and placed in a Policevehicle.[6] As a consequence of his actions Mr Takhar was charged with:(a) refusing an officer's request for a blood specimen (third orsubsequent);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.7Guilty plea and sentencing[7] On 11 June 2018, Mr Takhar pleaded guilty to all charges. He did so on thebasis of the summary of facts. On 31 August 2018, he was sentenced byJudge B A Gibson in the District Court at Auckland.[8] The Judge took the two charges of threatening to kill as the lead offences. Hefound three aggravating factors were present. These were that the threats were madeto the Police in the course of their duty; the threat of serious violence coupled with afacility 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 astarting point of three and a half years' imprisonment. He then uplifted the sentenceby one year on account of the other contemporaneous offending, and imposed a furthersix-month uplift for Mr Takhar's serious criminal history. These included twoconvictions 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 anMPI of two years and eight months' imprisonment was justified, i.e. the statutorymaximum of two-thirds. He adopted that course observing it was necessary in orderto denounce Mr Takhar's conduct, hold him accountable, protect the public and instilin him a sense of responsibility.Grounds of appeal[11] The grounds advanced on Mr Takhar's behalf are several. The first three relyon 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, whichcontradicts some of the findings the Judge made at sentencing;(b) the technical specifications of the Bernzomatic TS4000 gas torch showsthe primary flame is one inch long, in contrast to the metre long flamereferred to in the summary of facts;(c) having regard to (a) and (b), the starting point adopted by the Judge wastoo high; and(d) the Judge failed to adequately take into account Mr Takhar'srehabilitative capacity if given the opportunity to take part in a drugrehabilitation course.The first, second and third grounds of appeal[12] These grounds can be dealt with together. At a pre-hearing procedural call inthis Court, Lang J directed that the appeal was to be determined in accordance withthe evidence before the District Court.8 He added that any application to adduce newevidence 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 formalapplication seeking leave has been filed. Instead, Mr Lee appears to have incorporatedan application for leave in his written submissions in support of the appeal. Noaffidavits have been filed. Instead, the material Mr Lee seeks this Court to receive isattached to the back of his memorandum of written submissions. The evidenceappears to be of two types:(a) The TORF, which Mr Lee received from the Police pursuant to theirdisclosure obligations. Mr Lee claims this document contradicts thesummary of facts and, in particular, the allegation Mr Takhar resistedthe Police and could not be removed from the car. Mr Lee submittedthe 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 millimetresin contrast to the statement in the summary of facts that the flame wasapproximately 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 afterMr Takhar entered a guilty plea he did not seek a disputed factshearing.9 That may be because the material he now seeks to haveadmitted 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 wasentitled to treat the summary of facts as agreed.(b) Secondly, the inference Mr Lee seeks the Court to draw from thecontents of the TORF is not available. The document refers toMr Takhar as being "extremely aggressive" and "threatening to kill"before attempts were made to get him out of the car. He was able todeploy the gas torch while still in the car. It was only after he wastasered that the Police were able to remove him and place him on theground. That he may have been compliant and subdued at that stage isnot inconsistent with the Police account of the earlier events.(c) Finally, even if the technical data relating to the gas torch is correct, thisdoes not materially affect an assessment of the totality of the offending.In my view, the primary aggravating factor is not the length of theflame, but rather that the torch was ignited and presented at the officersat what could only have been close quarters. This was an extremelyaggressive and dangerous act on any analysis, irrespective of the actuallength of the flame. It was conduct capable of causing the officers veryserious 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 insupport of the appeal. I refused leave, but on 5 December 2018 Mr Lee filed amemorandum again seeking leave. These authorities do not materially alter thesubmissions made at the hearing, or my view of the appeal. Accordingly leave isdeclined.Fourth ground of appeal[17] Mr Lee also submitted that the Judge failed to take into account Mr Takhar'spersonal circumstances, and in particular his addiction to methamphetamine which hesubmitted was the "root cause of his offending". Mr Lee forcefully submitted that ifMr Takhar's drug issues were resolved, he would be able to get his life in order and bea "responsible citizen and good father to his daughter".[18] In fact, the Judge was well aware of Mr Takhar's drug addiction issues. Hereferred to them in his sentencing remarks. He expressed hope that Mr Takhar'sproblems could be addressed through undertaking rehabilitative programmes inprison. In the pre-sentence report the author noted that appropriate courses would beavailable to Mr Takhar. The difficulty for the Judge was that while Mr Takharexpressed a willingness to participate in rehabilitative courses, he denied he had a drugdependency. This served as an impediment to any discount for Mr Takhar's addictionissues. In the absence of any firm evidence supporting Mr Lee's submission, orevincing a willingness on Mr Takhar's part to address his drug issues, there was littlethe 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 wayof rehearing I must make my own assessment of the relevant facts although, as notedabove, I am constrained in that exercise by the summary of facts to which Mr Takharpleaded guilty. I must still be satisfied there are no errors in the sentence imposed andthat it was not manifestly excessive.10[20] The first issue I consider is whether the starting point reached by the Judge wastoo high. I shall then turn to examine the aggravating and mitigating factors relativeto Mr Takhar and thus, whether the end sentence of four years' imprisonment and theMPI 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 ofthreatening to kill as the lead offences.10 Criminal Procedure Act 2011, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482at [32].[22] There is no tariff decision for threatening to kill cases.11 This no doubt reflectsthe 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 Faaleagav R, the key factors in assessing the culpability in threatening to kill cases willinclude:12" premeditation (the degree to which the threats were planned orcalculated), the nature and frequency of the threats, any link to earlier actualviolence, whether the object of the threat has public office, the ability of theoffender to effect the threat and the allied question of the actual danger to thevictim. The inability to immediately effect a threat reduces the terror it mightotherwise invoke, reducing the extent of harm resulting from the offence andthereby reducing culpability. We do not agree with the sentencing Judge thatthis factor cannot detract from the severity of the offending. Whether it doesor 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 theoffending were Police officers acting in the course of their duty. As theCrown submitted, Police are often required to respond to situationswhich put their safety at risk, to prevent harm to the public. Offendingagainst Police will thus elevate the seriousness. This is a factor whichis 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, notonly toward both officers and their families, but also the member of thepublic who engaged with him earlier.(c) Ability of the offender to effect the threat, and actual danger: Thesefactors are interrelated, and should not be treated separately.Mr Takhar's threats presented a real danger to the officers. He had theability to carry out his threats through the use of the gas torch. As notedearlier, these threats were real regardless of the actual length of theflame.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 factorsjustified a stern starting point. However, having regard to the authorities, I am notsatisfied 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 Therethe offender threatened to kill his domestic partner. His offending was premeditated.The threat was made to the victim directly. And it was accompanied by thepresentation of an unloaded handgun.[26] In Allan, the domestic context was an aggravating factor.14 While the fact thatMr Takhar's threats were directed to the Police is an aggravating factor, it is in myview comparable to offending committed in a domestic setting. As Mr Belcher for theCrown properly acknowledged, from the victim's perspective in Allan the actualdanger was very substantial indeed. She rightly feared for her life.[27] However, I accept that other aspects of Mr Takhar's offending are moreseriously aggravating than in Allan. The first is the frequency and variety of histhreats. They were particularly targeted and were directed not only at the officers andtheir families, but also the member of the public. The threats towards the officers andtheir families, in particular, carried sinister undertones.[28] The second distinguishing factor is that in Allan, the handgun held by theoffender was, in fact, unloaded. In the present case, Mr Takhar held an ignited gastorch towards the officers as he delivered the threats. He had a greater ability to giveeffect 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 halfyears was adopted for three charges of demanding with menaces and four charges ofthreatening to kill. In that case, Mr Forrest demanded with menaces from threelawyers, whom had either acted for Mr Forrest in litigation, or had acted for differentparties. The threatening to kill charges related to another letter sent, threatening to killfour 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 ofwhen 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 andcalculated:16"[The] background illustrates the seriousness of the threatening to kill chargeswhich were made against [the victims]. There was considerable planning andthought that went into the threats to kill, given the detail of the threats. Thiswas designed to frighten the victims and make them believe that the threatswere capable of being carried out. The appellant went so far as to tell thevictims when he proposed to escape from prison to carry out these threats.The victim impact report records the serious effect these threats had on thesevictims. Given the appellant had previously illustrated his capacity to carryout such threats, such fear seems reasonably based. The fact that thisoffending occurred while the appellant was serving a sentence ofimprisonment 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 seemappropriate. In that regard, I note the starting point in Forrest was also for demandingwith menaces offending. A higher starting point on the threatening to kill charges istheoretically available, but because of the inter-relationship between the aggravatingfactors and the other charges Mr Takhar was convicted on, that would require aproportionately smaller uplift for those charges.Uplifts[32] As noted, the Judge made two uplifts. First, he uplifted the sentence by oneyear to account for the related offending and secondly he applied a further uplift of sixmonths' imprisonment to reflect Mr Takhar's previous convictions. In my judgementboth of these were appropriate.[33] The Crown submitted that the cumulative uplift of 18 months was available toreflect both the seriousness of the other offending, as well as a further six-month upliftfor Mr Takhar's previous convictions. However, the starting point I regard asappropriate is stern. It reflects not only the threats to kill, but necessarily includes to16 At [15].some extent the offending associated with the assault charge, and the possession of anoffensive weapon. The offending incorporated in those charges is inherent in assessingthe degree of aggravation, particularly the ability of Mr Takhar to give effect to histhreats. Accordingly, in my view, an uplift of no more than one year is justified forthe related offending.[34] I also agree with the Judge that a six-month uplift for Mr Takhar's previousconvictions is appropriate, together with the fact that his offending occurred whilst hewas on bail. Mr Takhar has several recent convictions for threatening and violentbehaviour, most recently in September 2017. This leaves a provisional sentence ofthree and a half years before any discounts are applied.Discounts[35] For the reasons already discussed, I am not persuaded there was a proper basison which the Judge could have discounted the sentence in recognition of Mr Takhar'sdrug problems.[36] No issue is taken with the 20 per cent guilty plea discount. I agree it isappropriate having regard to the strength of the prosecution case and the inevitabilityof conviction.End sentence[37] I am satisfied that the appropriate end sentence is one of three years and twomonths' 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 Act2002 will be insufficient for the following purposes:(a) holding the offender accountable for the harm done to the victim andthe 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 asimilar offence; or(d) protecting the community from the offender.[39] A sentence of three years and two months, while less than that imposed in theDistrict Court, remains stern for threatening to kill offending. I am satisfied that thestandard minimum period of just over 12 months' imprisonment will be sufficient tohold Mr Takhar accountable, denounce his conduct, and deter him and others similarlyinclined.[40] Furthermore, after that period, Mr Takhar's release will be at the discretion ofthe Parole Board. Given his apparent drug addiction issues, I would expect hiseligibility for release is likely to be influenced by the extent of his commitment torehabilitation 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 andevinces a sincere and realistic commitment to change, the Parole Board will no doubtregard him as a deserving candidate for release after he has served one-third of hissentence.[41] If those behaviours are not addressed, it is unlikely he will be released at thatpoint. The Parole Board is in a better position than this Court to make the assessmentat the relevant time.Result[42] The appeal against sentence is allowed.[43] The sentence of four years' imprisonment is quashed and substituted with asentence of three years and two months' imprisonment.[44] The order for an MPI is quashed.Moore JSolicitors:Crown Solicitor, AucklandY Lee, Auckland