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Lavea v R

Lavea v R

Case [2014] NZCA 192 21 May 2014

Aggravated & Exemplary Damages

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA766/2013
[2014] NZCA 192

BETWEEN	SAULEAO LAVEA Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	I Jayanandan and E Ward for Appellant M R Harborow for Respondent
Judgment:	21 May 2014 at 12 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The appellant, Sauleao Lavea, pleaded guilty to two counts of aggravated robbery, two counts of unlawfully taking a motor vehicle, two counts of money laundering, one count of unlawfully possessing a firearm, one count of unlawfully possessing an explosive (ammunition), one count of possessing cannabis and one count of selling cannabis.
On 11 October 2013 Mr Lavea was sentenced by Judge McNaughton in the District Court at Manukau to imprisonment for nine years and ordered to serve a minimum period of four years and six months.[1]
[1]R v Lavea DC Manukau CRI-2010-092-7225, 11 October 2013.
Mr Lavea now challenges that sentence as being manifestly excessive. He does not challenge his 50 per cent minimum period of imprisonment.

Facts

On 13 April 2010 Mr Lavea and a Mr Tauaese stole a Nissan Cefiro motor vehicle from Panmure for use as a getaway car in an aggravated robbery which was planned for the following day. That same day Mr Lavea contacted his nephew to steal three pairs of light blue disposable overalls from his work to use as disguises for the robbery.
On 14 April 2010 Mr Lavea, Mr Tauaese and a third offender robbed the BNZ branch at the Botany town centre. Mr Lavea and Mr Tauaese were wearing the light blue disposable overalls and their heads and faces were covered. They ran into the bank. The third offender acted as the getaway driver. A sawn-off shotgun was presented at one of two Armourguard employees who were present to collect cash from the bank. There was a demand for the cashbox, which was handed over. The offenders fled the scene in the stolen car. The cashbox was in fact empty. The stolen car was found in a nearby street with the cashbox inside it.
The second aggravated robbery occurred some two weeks later, on 27 April 2010. Four days prior to that Mr Lavea and Mr Tauaese stole a Honda Odyssey motor vehicle from the St Luke’s Shopping Mall carpark. On 27 April Mr Lavea, Mr Tauaese and a third offender robbed the BNZ branch in Ormiston Road, Flatbush. Again, two offenders entered the bank and a gun was presented.
Again, the two offenders ran towards Armourguard employees, one presenting the firearm. A security case was handed over. On this occasion it contained $63,125. The offenders left the scene in the stolen Honda car, which was found dumped nearby.
The Judge concluded that he was sure Mr Lavea had been the gunman during the second robbery, based on the clothes being worn, and that it was likely he was also…

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.

Continue reading Lavea v R

Details

AGLC: Lavea v R [2014] NZCA 192
Case: [2014] NZCA 192
Decision Date: 21 May 2014 at 12 pm

CaseChat Overview and Summary

In the case of Sauleao Lavea v The Queen, Lavea appealed against his sentence, contending that it was manifestly excessive. Lavea had pleaded guilty to multiple charges, including two counts of aggravated robbery, two counts of unlawfully taking a motor vehicle, two counts of money laundering, one count of unlawfully possessing a firearm, one count of unlawfully possessing an explosive (ammunition), one count of possessing cannabis, and one count of selling cannabis. The sentencing judge had imposed a total imprisonment sentence of nine years, with a minimum non-parole period of four years and six months. Lavea’s sole contention on appeal was that the judge's two-year uplift for previous offending and offending while on parole was excessive.

The legal issues before the court were whether the end point sentence was manifestly excessive, and whether the judge had appropriately considered Lavea's period of recall in determining the uplift for previous offending and offending while on parole. The court acknowledged that the appropriate focus in a manifestly excessive appeal was on the end point sentence, not the methodology adopted by the judge. The court also noted that an adjustment for time served might be appropriate to avoid double punishment but could still be taken into account in subsequent sentencing. The court held that the judge's uplift of two years was justified given the aggravating factors, including Lavea's previous conviction for a similar offence, the short time between release and the current offending, and the fact that the current offending occurred while Lavea was on parole.

The Court of Appeal dismissed Lavea's appeal against his sentence. The court held that the end point sentence of nine years was not manifestly excessive given the seriousness of Lavea's offending, and that the uplift for previous offending and offending while on parole was within an acceptable range. The court noted that the judge's uplift of two years was justified by the aggravating factors, and that any adjustment for time served would not have significantly altered the outcome. Therefore, the court upheld the sentence imposed by the sentencing judge.

Orders