Lavakeiaho v Police

[2024] NZHC 3082

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000091 [2024] NZHC 3082

BETWEEN

MARK MATTHEW DILLON LAVAKEIAHO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 October 2024
Appearances:	M J P Davidson for Appellant A J Goodwin for Respondent
Judgment:	23 October 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 23 October 2024 at 2.15 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………

LAVAKEIAHO v NZ POLICE [2024] NZHC 3082 [23 October 2024]

Introduction

[1]This is an appeal against sentence.

[2]                 In the District Court,1 the appellant, Mr Lavakeiaho, pleaded guilty to the following charges:

(a)Receiving property over $1,000;2

(b)Failed to carry out obligations in relation to a computer search;3

(c)Dangerous driving;4

(d)Behaved threateningly (x 2);5

(e)Possession of methamphetamine;6

(f)Driving while disqualified (x 7);7

(g)Failing to stop when followed by blue and red flashing lights (x 2).8

[3]                 The District Court Judge determined that the appellant was not suitable for an electronically  monitored  sentence,  such  as   home   detention,   and   sentenced  Mr Lavakeiaho to 18 months’ imprisonment and disqualified him from driving for  12 months.

1      Police v Lavakeiaho [2024] NZDC 22306.

2      Crimes Act 1961, ss 246 and 247: maximum penalty seven years’ imprisonment.

3      Search and Surveillance Act 2012, s 178: maximum penalty three months’ imprisonment.

4      Land Transport Act 1998, s 35(1)(b): maximum penalty three months’ imprisonment or $4,500 fine.

5      Summary Offences Act 1981, s 21: maximum penalty three months’ imprisonment or $2,000 fine.

6      Misuse of Drugs Act  1975, s 7(1)(a) and (2);  maximum  penalty six months’ imprisonment  or a

$1,000 fine.

7      Land Transport Act, s 32(1)(a) and (3): maximum penalty three months’ imprisonment or $4,500 fine. The Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months or more.

8      Land Transport Act, s 52A(1)(a)(ii) and (3): maximum penalty $10,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months.

[4]                 The appellant contends that the District Court Judge’s decision was erroneous. In particular, he challenges the decision not to substitute the sentence of imprisonment for a sentence of home detention or, in the alternative, the decision not to grant leave to apply for home detention at a residential rehabilitation facility.

[5]                 It is said that the decision not to impose a sentence of home detention was based on incorrect information provided at sentencing by the Department of Corrections.

[6]The Police oppose the appeal.

Background facts

[7]                 On 5 May 2024, Mr Lavakieaho drove a stolen vehicle with two Killer Beez gang associates in convoy with a vehicle driven by another Killer Beez associate. They arrived at Takou Bay and accosted the victim and a witness (both of whom were known to Mr Lavakieaho), shouting “come out for a one outs”. One of the Killer Beez associates was circling behind Mr Lavakieaho and carried what was described as a double-barrelled shotgun, half wrapped in a black jersey. Mr Lavakieaho then left the scene without further incident.

[8]                 Three of Mr Lavakieaho’s driving while disqualified charges arose from three occasions of him being captured on CCTV as the driver of a stolen vehicle between  5 and 6 May 2024.

[9]                 On 6 May 2024, Mr Lavakieaho arrived at the victim’s home in Takou Bay, again driving a stolen vehicle and accompanied by a Killer Beez associate. A second vehicle,  containing  two  Killer  Beez  associates,   arrived   at   the   same   time.  Mr Lavakieaho exited the vehicle and shouted to a witness “Come on cunt, we will have a ‘one outs,’ come on out.” The witnesses shouted at Mr Lavakieaho to leave, but he reiterated that he was going to have a “one out”.  This continued for around  10 minutes until the victim called the Police.

[10]             Mr Lavakieaho and his associates then travelled towards State Highway 10, but the other vehicle was intercepted by Police. Mr Lavakieaho turned on to State

Highway 10 and, when a Police vehicle activated its lights and sirens to signal for him to stop, he continued at speeds well above the 100 km/h speed limit. Police observed Mr Lavakieaho passing other vehicles at excessive speed, sometimes overtaking on blind corners, and abandoned the pursuit. The vehicle was eventually found in Puketi Forest. Mr Lavakieaho was tracked by a Police Dog Unit but was not located at the time.

[11]             The Provision of Advice to Courts report (the PAC report) of 9 September 2024, relied upon by the District Court Judge in his sentencing, stated as follows:

Ability to comply

Mr Lavakeiaho has a failure to answer District Court bail and has breached his EM bail sentence.

He has a current charge for failing to answer [District Court] bail and has reoffended whilst subject to bail. Mr Lavakeiaho has two family violence incidents both of which have taken place in the last two years. No details were provided of these incidents.

[12]             The PAC report recommended imprisonment with conditions on release, with home detention and post detention noted as options.

Relevant legal principles

[13]             Mr Lavakieaho has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (CPA).

[14]             Section 250 of the CPA sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that there is an error in the imposed sentence and that a different sentence should be imposed.

[15]             The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:9

… the standard of appellate review in sentence appeals … requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was

9      Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).

outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.

[16]             In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.10 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.11 A Judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.12

Analysis and decision

[17]             The sole issue to address is whether the District Court Judge was in error in not substituting the sentence of imprisonment for a sentence of home detention and/or not granting leave to apply for home detention at a residential rehabilitation facility.

[18]             The appellant contends that, in declining home detention and/or not granting leave to apply for home detention, the Judge relied upon the following incorrect information in the PAC report:

(a)Mr Lavakeiaho has a failure to answer District Court bail and has breached his EM bail sentence; and

(b)He has a current charge for failing to answer District Court bail.

[19]             There appears to be merit in the submission that there was incorrect information before the District Court Judge. There does seem to be real doubt about whether there are any recorded breaches of electronically monitored bail conditions in the bail history as from 2023. Furthermore, the statement that Mr Lavakeiaho was facing a current charge of failure to answer District Court bail also seems to be incorrect.

10     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].

11     Tutakangahau v R, above n 10, at [36].

12     Tutakangahau v R, above n 10, at [36], citing Tutakangahau v R [2014] NZHC 556 at [10].

[20]             However, despite those errors, I find that there was a proper basis for the District Court Judge to conclude that the appellant does have some history of non-compliance with court orders and sentences and was entitled to conclude that he was unsuitable for an electronically monitored sentence. The following factors support my conclusion:

(a)Regarding his offending in 2023,  for  which  he  was  sentenced  to 12 months’ supervision (November 2023), Mr Lavakeiaho had committed one further offence while on bail and failed to answer District Court bail on two occasions;13

(b)Regarding his offending in 2024 (which resulted in the current sentence under appeal), the appellant’s offending occurred while he was subject to a sentence of supervision;14

(c)Four of the offences for which the appellant was sentenced were committed by him while he was on bail for 11 other offences for which he was also sentenced in September 2024;

(d)A significant portion of the appellant’s offending includes disregarding court orders or Police instructions, including driving while disqualified (seven offences), failure to answer District Court bail (two offences), and failing to stop for blue and red flashing lights (two offences).

[21]             I acknowledge that some of the driving while disqualified offences were committed over the space of a few days, as Mr Davidson submitted. However, viewed overall, there was a proper basis for the Judge to conclude that an electronically monitored sentence was not appropriate in this case. As the Crown submitted, electronically monitored sentences are entirely dependent on the ability of the offender to follow instructions and comply with the Court’s orders.

13     The two failures to answer District Court bail are recorded in the appellant’s criminal and traffic history (one offence committed on 18 May 2023 and the other on 30 November 2022).

14     On 29 November 2023, Judge Davis sentenced the appellant to 12 months’ supervision: Police v Lavakeiaho [2023] NZDC 29650.

[22]             For all these reasons, I conclude that the appeal should be dismissed. Having said that, it will be important, should the issue become relevant in the future, for the Department of Corrections to carefully review its information and to ensure that the appellant’s compliance history is accurately presented to the Court.

Result

[23]The appeal is dismissed.

Andrew J