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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 3082
Decision Date: 23 October 2024

CaseChat Overview and Summary

The High Court of New Zealand, Whangarei Registry, presided over by Justice Andrew, heard an appeal against sentence brought by Mark Matthew Dillon Lavakeiaho against the New Zealand Police. Lavakeiaho appealed against his sentencing by the District Court, which imposed a sentence of 18 months’ imprisonment and disqualified him from driving for 12 months. The appellant argued that the District Court erred in not substituting the sentence of imprisonment for home detention or granting leave to apply for home detention at a residential rehabilitation facility.

The legal issue before the court was whether the District Court Judge erred in not substituting the sentence of imprisonment for a sentence of home detention and/or not granting leave to apply for home detention. The court considered whether there was a material error in the sentence imposed by the District Court. The court noted that the appellant had a history of non-compliance with court orders and sentences, which supported the District Court Judge’s conclusion that the appellant was unsuitable for an electronically monitored sentence.

The court found that although there were inaccuracies in the information provided to the District Court by the Department of Corrections, these did not alter the fact that there was a proper basis for the District Court Judge to conclude that the appellant was unsuitable for home detention. The court held that the appellant’s history of non-compliance with court orders and sentences justified the District Court Judge’s decision. The appeal was dismissed.

The court's final order was that the appeal against sentence was dismissed.

Orders