Lafai Eric Patrick v The Queen

[2004] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND

CA272/04

THE QUEEN

v

ERIC PATRICK LAFAI

Hearing:19 October 2004

Coram:Glazebrook J
Panckhurst J
Gendall J

Appearances:  R G Glover for Appellant

B J Horsley for Crown

Judgment:1 November 2004 

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1]       This is an appeal against a sentence of three years nine months imprisonment, cumulative upon an earlier sentence of five years imprisonment, imposed after the appellant was found guilty by a jury of the crime of aggravated robbery. 

[2]       The earlier sentence of five years imprisonment was imposed 10 months earlier on 26 September 2003.  That sentence concerned offending over a period of 18 months for crimes of burglary, receiving, sale of cannabis, two counts of unlawful possession of a firearm and other drug charges.  Counsel for the appellant contended that whilst the sentence of three years nine months imprisonment could not be faulted, the final or effective term of eight years nine months imprisonment was manifestly excessive and offended the totality principle.

Background facts

[3]       The circumstances of the aggravated burglary were that on 13 June 2001 (that is two months before the spate of other offending occurred) the appellant forced entry into a home using a carving knife while disguised with a balaclava.  He threatened the occupant and held the knife to his throat.  However, the intervention of the victim’s dog persuaded the appellant to depart in haste.  He pleaded not guilty but there was compelling evidence which justified the jury’s verdict.  In imposing sentence the Judge referred to various sentencing principles in the Sentencing Act 2002. 

[4]       The appellant had an extensive criminal history for crimes of burglary, aggravated burglary and aggravated robbery, and had recently been released from serving a six year sentence of imprisonment imposed in 1997 when this crime occurred.  He would have been on parole.

[5]       The Judge noted that the Mako principles for aggravated robbery were equally applicable to the crime of aggravated burglary and referred to the fact that he had to determine what sentencing outcome might have resulted in applying the totality principle had, a sentencing Judge in September 2003 when imposing the term of five years imprisonment for burglary, unlawful possession of firearms, and selling of cannabis, been aware of the earlier aggravated burglary.  The present charge had not been resolved because the appellant had absconded on bail, not appeared at depositions, and did not come to trial until some time later.  The Judge concluded as follows:

[26]     …the totality principle is one which the Court must bear in mind.  I have reached the firm view, Lafai, having regard to your history of previous convictions, particularly your previous convictions for aggravated robbery and aggravated burglary; the fact that the knife was held to the throat of the victim; the fact that you were wearing a balaclava at the time, and the other aggravating features, that the appropriate starting point in this case is one of at least five years imprisonment.

[27]     Having regard to the totality principle and trying as best I can to assess what overall sentence would have been imposed if this matter had been dealt with in September of last year when you were sentenced for the other offences, I have reached the view that the appropriate cumulative term is one of three years and nine months imprisonment and you are sentenced accordingly.

[6]       The approach adopted by the sentencing Judge was correct.  As a stand alone crime the aggravated burglary would have warranted a starting point sentence of at least seven years imprisonment.  The aggravating features, apart from those associated with the crime itself, included the appellant’s previous convictions and the fact that he was on parole.  There could have been no credit given for a guilty plea.  The appellant could not expect to receive a concession, in the sense of concurrent sentences for multiple offending.  Cumulative sentences were appropriate.  Of course a sentence of seven years imprisonment cumulative upon a sentence of five years imprisonment would have been manifestly excessive. 

[7]       The issue is whether an effective term of eight years and nine months imprisonment infringed the totality principle.  The appellant’s counsel submits that it did, contending that the sentence of imprisonment imposed on the crime of aggravated burglary was out of line with the High Court decision in R v Senior (2000) 18 CRNZ 340.  But Senior provides no more than some examples and where the crime is aggravated burglary using a knife, with actual threats to the occupant of a dwelling, the aggravating features in respect of a recidivist burglar are obvious.  The High Court in Senior observed that many might regard tariff sentencing levels at that time (2000) for recidivist burglars as being too low.

[8]       The appellant had a total of 39 previous convictions including 13 for burglary, two for aggravated robbery, one for aggravated burglary and two for unlawful possession of a firearm.  He committed this aggravated burglary within a very short time of being released from a substantial term of imprisonment for aggravated robbery and then went on to commit crimes of burglary, receiving, possession of class B drug, possession of class C drug, selling cannabis and unlawful possession of firearms over the next 18 months.  If the sentencing Judge had known of this crime when he came to sentence the appellant on the later crimes, imprisonment either by use of cumulative or concurrent sentences, of eight years nine months would have been well justified. 

[9]       The reasoning the Judge gave and his application of proper principles cannot be faulted.  It could not be said on any basis that the sentence was manifestly excessive.

Result

[10]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington