BETWEEN VINCENT STEVEN LAKAU Appellant AND THE KING and NEW ZEALAND POLICE Respondents
[2024] NZHC 2578
•9 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-393
CRI-2024-404-394 [2024] NZHC 2578
BETWEEN VINCENT STEVEN LAKAU
Appellant
AND
THE KING and NEW ZEALAND POLICE
Respondents
Hearing: 2 September 2024 Appearances:
M Hamlin for the Appellant
O J Southern for the Respondents
Judgment:
9 September 2024
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on Monday, 9 September 2024 at 2:00 pm.
Registrar/Deputy Registrar
Solicitors: Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau Counsel: M Hamlin, Auckland
LAKAU v R [2024] NZHC 2578 [9 September 2024]
[1] Mr Lakau pleaded guilty in the District Court to injuring with intent to cause grievous bodily harm,1 receiving property over $1,000 (x 2),2 possession of an offensive weapon,3 and unlicensed driver failing to comply with prohibition.4 On 17 July 2024, Judge C D Savage sentenced him to three years and three months’ imprisonment.5 Mr Lakau appeals against sentence on the basis that the Judge’s sentencing approach led to a sentence that was manifestly excessive.
Background
[2]The lead charge was injuring with intent to cause grievous bodily harm.
[3] On the morning of 23 April 2023, Mr Lakau and the victim, who were known to each other, were both outside a restaurant in Auckland. Without warning, Mr Lakau struck the victim twice in the face. Mr Lakau then held the victim while his associate punched the victim multiple times to the head. Mr Lakau delivered a further punch himself, after which the victim fell to the ground. While he was on the ground, Mr Lakau stomped on the victim’s face, holding a table and a fixture to provide leverage and power to stomp. As the victim attempted to sit up, Mr Lakau punched him again in the head while his associate kicked the victim two further times, once to the body and once to the head.
[4] The attack lasted about 18 seconds. In that time Mr Lakau and his associate delivered seven punches (four by Mr Lakau) and five kicks/stomps (one by Mr Lakau).
[5] At no time did the victim do anything aggressive to Mr Lakau or his associate. Initially the victim tried to cover his head from the blows, but he was quickly incapacitated and in the final stages of the attack he was not defending himself at all.
[6] The victim sustained numerous abrasions and bruises to his head, as well as a concussion.
1 Crimes Act 1961, s 189(1). Maximum penalty: 10 years’ imprisonment.
2 Sections 246 and 247(a). Maximum penalty: seven years’ imprisonment
3 Sections 202A(4)(a). Maximum penalty: three years’ imprisonment.
4 Land Transport Act 1998, s 52(1)(c). Maximum penalty: $10,000 fine.
5 R v Lakau [2024] NZDC 16660.
[7] The two charges of receiving property over $1,000 related to stolen vehicles, a Lexus valued at $10,000 and an Audi valued at $65,000. On 23 June 2022, police arrived at a property in Pakuranga and found Mr Lakau and an associate with the vehicles. Mr Lakau had the car keys for the two vehicles in his hooded sweatshirt. Both vehicles were displaying false number plates.
[8] On 24 May 2023, Mr Lakau was arrested while driving a vehicle. The vehicle was searched following his arrest and a metal baseball bat was located in between the driver’s seat and central console. This resulted in the charge of possession of an offensive weapon.
[9] On 22 May 2017, Mr Lakau had been forbidden to drive any motor vehicle until he obtained the appropriate current driver licence. When he was arrested on 24 May 2023, he had still not obtained the appropriate current driver licence. He was therefore also charged with unlicensed driver failing to comply with prohibition.
The sentence
[10] The Judge adopted a starting point of four years’ imprisonment for the lead offending of injuring with intent to cause grievous bodily harm. He then applied uplifts of eight months’ imprisonment for the remaining offending and two months’ imprisonment for Mr Lakau’s conviction history. Finally, he applied discounts of 15 per cent for guilty pleas and a further discount of nine months’ imprisonment (just over 15 per cent) in relation to various matters. There was a three-month discount for time spent on restrictive bail conditions, three months for matters in a s 27 Sentencing Act 2002 report, and three months for rehabilitative efforts and potential.
[11]The Judge declined to impose a discount for Mr Lakau’s remorse. He said:6
… there needs to be more than an acknowledgement that what he did was a bad thing and that he now feels sorry for it and sorry for the consequences for his immediate family and extended family …
6 At [6].
[12] When it came to the s 27 report the Judge focussed on the fact that Mr Lakau had a “stable upbringing”:7
[8] When I look at the s 27 report, the one comment that leapt out at me was that the defendant had been the beneficiary of a stable upbringing with his parents who did not separate until he was in his 20s and he attributes his offending to peer pressure. If I was to accept the submission he is entitled to a significant credit for that, then everybody who bands together with other young men or women of a similar age and embarks on a series of criminal enterprises such as this defendant would be entitled to a credit and that cannot be right.
[9] He had a stable upbringing. He strayed from the path when he had had influences that were positive that many young men lack in their formative years. I would allow five per cent for the s 27 factors which translates to three months.
Legal principles
[13] Section 250(2) of the Criminal Procedure Act 2011 provides that the appeal court must allow an appeal if it is satisfied that, for any reason, there is an error in the sentence imposed, and that a different sentence should be imposed. In any other case, the appeal must be dismissed.8
[14] It must be shown that there was an error whether intrinsically, or as a result of additional materials submitted on appeal.9 If there is an error of the requisite character, the appeal court will then form its own view of the appropriate sentence. Even where an error of the requisite character is identified, the appeal court’s focus is on the outcome and whether the end sentence is manifestly excessive.10 The appeal court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.11
Grounds of appeal
[15] Mr Lakau submits the Judge should have allowed a discrete discount for remorse. He also says that the three-month reduction for the s 27 report matters was insufficient.
7 At [8] and [9].
8 Criminal Procedure Act 2011, s 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
10 At [36].
11 At [36].
[16] At the beginning of the sentencing hearing, Mr Hamlin sought an adjournment. The Judge refused to adjourn. Mr Lakau appeals on this ground as well. It is submitted that he was unfairly disadvantaged because of the Judge’s refusal to adjourn.
Decision
Remorse
[17]Mr Lakau expressed his remorse in a one-page handwritten letter that began:
Firstly I would like to convey my apology to the victim and family for the trauma I caused. I truly hope that one day you will find it in your hearts to forgive me for my actions.
The letter then went on to apologise to the courts, to ask for leniency in his sentence and to apologise to his family.
[18] The letter related to the charge of injuring with intent to cause grievous bodily harm. In relation to the other charges, the pre-sentence report said, “Mr Lakau has expressed remorse for his actions and is willing to make amends by complying with any sentence imposed by the Court.”
[19] Reliance is also placed on the fact that Mr Lakau engaged in a rehabilitation programme. Specifically, he completed the 12-week Kāhui Tū Kaha social support services programme, named “R.I.S.C” or Relentless in Seeking Change, from October 2023. Mr Hamlin submitted the fact that Mr Lakau engaged in this programme is further evidence of his genuine remorse.
[20] In Kohu v R the Court of Appeal said that a discrete discount for remorse will be appropriate where a proper and robust evaluation of all the circumstances demonstrates that an offender is remorseful.12 The remorse need not be extraordinary, although it must be genuine. The onus is on the defendant to show it is so. The court will look for tangible evidence, such as engagement in restorative justice processes.13 Other examples include the voluntary payment of reparation, and efforts to remedy
12 Kohu v R [2023] NZCA 343 at [40] citing: Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Sentencing Act 2002, s 9(2)(f).
13 At [40]. See also Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
harm to the community. Where established, remorse tends to attract a discrete discount of between five and 15 per cent.14
[21] This Court has noted that letters of remorse are often written at sentence and that many are formulated without indicating much personal engagement with the reality of the offending.15
[22] Mr Hamlin submitted that Mr Lakau should have received a discount of 10 per cent for remorse. However, the extent to which a discount is given for remorse is very much a matter of discretion for the sentencing Judge. In my view, the Judge’s conclusion that no discount was appropriate was reasonably open to him.
[23] The evidence of remorse is modest. Mr Lakau’s letter only briefly addresses the victim of the offending before turning to focus on the impact of the offending on various members of his family. The letter suggests some appreciation of the impact of the offending on his family, but not of any real engagement with the effects of the offending on the victim. Mr Lakau’s engagement with the Kāhui Tū Kaha programme is positive. However, I was not provided with any evidence suggesting that his engagement in the programme indicates he is remorseful.
Section 27 report
[24] Mr Hamlin submitted that too much emphasis was put on Mr Lakau’s stable upbringing. He argued for a 10 per cent discount based on the fact that Mr Lakau had been exposed to gangs, anti-social behaviour and criminal offending in the area where he grew up. He said that, as a result, Mr Lakau had been exposed to criminal offending from a young age, which had normalised a criminal lifestyle. Further, he left school at 15 and between the ages of 17 and 19 he lived with friends who had a negative influence on him. He started to get into more serious trouble during this time.
[25] In Zhang v R, the Court of Appeal observed that systemic depravation impairing a defendant’s choice, and therefore diminishing moral culpability, required
14 At [40].
15 Sasulu v Police [2024] NZHC 1470 at [18] quoting: Woodlock v Police [2023] NZHC 2675 at [49].
consideration in sentencing.16 In Carr v R, the Court of Appeal also said that where a s 27 report gives a credible account of matters that may be considered to have diminished moral culpability and impaired choice so as to establish a causative contribution to offending, that should have an effect on the sentencing outcome.17
[26] The statements in the s 27 report regarding bad influences in the surrounding area where Mr Lakau grew up are generic. There is nothing specific to suggest that the influences made their way into his home. As Mr Lakau’s own home provided a stable environment, the Judge was not in error in allowing five per cent for the s 27 report.
Adjournment
[27] Mr Hamlin argued that Mr Lakau was disadvantaged in several ways by the Judge’s refusal to grant an adjournment. First, it would have allowed Mr Lakau the opportunity to write a fuller letter expressing his remorse. Second, it would have given him an opportunity to demonstrate his remorse by making a voluntary payment of reparation. Third, it would have allowed an opportunity for the writer of the pre-sentence report regarding the charge of injuring with intent to cause grievous bodily harm to speak to Mr Lakau. As explained below, the report writer was not able to speak to him.
[28] Mr Hamlin explained that he and Mr Lakau had made a plan to work on a letter together on the morning of the hearing. As it transpired, there was not time available for them to work on the letter. Mr Hamlin said this disadvantaged Mr Lakau because, had they been able to work on the letter together, Mr Lakau would have been able to better express his remorse. He described Mr Lakau as having limited literacy skills.
[29] However, Mr Lakau had ample time to work on a letter before the hearing. It is clear from the letter that Mr Lakau wrote that he did have adequate literacy skills for the purpose of writing a letter. If he needed it, he could have obtained assistance
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159] citing: Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50]; Fane v R [2015] NZCA 561 at [46]; and Arona v R [2018] NZCA 427 at [59].
17 Carr v R [2020] NZCA 357 at [65] as affirmed in Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
in writing a letter from someone other than his lawyer. Further, it may well be better that a lawyer is not involved in writing the letter. The risk of a lawyer being involved is that the letter is written so that it says the things that the lawyer considers the court might want to hear, rather than expressing the defendant’s genuine feelings.
[30] Mr Hamlin submitted that an adjournment would have given Mr Lakau an opportunity to demonstrate his remorse by making a voluntary payment of reparation. However, had he been minded to do so, Mr Lakau could have made an offer of compensation to the victim before the sentencing date.
[31] The problem with the pre-sentence report in relation to the charge of injuring with intent to cause grievous bodily harm is that the report writer was not able to speak to Mr Lakau. The report writer said that he tried to contact Mr Lakau by way of text, calls, an email, and a visit to his last address. Mr Hamlin pointed out that the writer did not visit Mr Lakau’s bail address.
[32] Mr Hamlin suggested that, had an adjournment been granted, Mr Lakau would have been remanded in custody and this would have ensured that the pre-sentence report writer was able to contact him. A new report would have been prepared that would have fully covered matters.
[33] Mr Hamlin said that a further pre-sentence report would have provided a further opportunity for Mr Lakau to express his remorse. However, I am not convinced that a further statement of remorse in a report would have added anything to what Mr Lakau had already said in his letter. After all, the pre-sentence report in relation to the other offending only included one sentence indicating remorse.
[34] Mr Hamlin says that a further pre-sentence report would have also given Mr Lakau an opportunity to better demonstrate his efforts at rehabilitation. However, the pre-sentence report in relation to the other charges explained that Mr Lakau was engaging with Kāhui Tū Kaha and what that involved. The Judge recognised rehabilitative attempts and potential with the reduction of three months.
[35]For these reasons, the Judge’s refusal to adjourn was not an error.
Result
[36]The appeal is dismissed.
Blanchard J
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