Lavea v The Queen

[2004] NZCA 52

IN THE COURT OF APPEAL OF NEW ZEALAND

CA408/03

THE QUEEN

v

FINAU LAVEA

Hearing:27 April 2004

Coram:Hammond J
William Young J
O'Regan J

Appearances:  M A Edgar for Appellant

B J Horsley for Crown

Judgment:27 April 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]       On 16 July 2002 two police officers, Constables Lance Grace and Rakesh Naidoo attended an address at Te Atatu South, West Auckland.  A neighbour had complained that someone had been firing an air rifle from the property and had broken a window.  Their visit to the property was a response to that complaint. 

[2]       When they arrived at the property they found Faleata Tuiletufuga and Finau Lavea.  Tuiletufuga was in possession of an air rifle.  After some initial and not entirely easy interaction with the police constables, Tuiletufuga said he wanted to speak to his lawyer.  He was told he could do so.  He went into the house and he was followed by Lavea.  Constable Grace then became concerned whether there might be other weapons in the house and also whether Tuiletufuga would try to leave the property.  So he and Constable Naidoo decided to arrest Tuiletufuga.

[3]       The constables therefore went into the house to arrest Tuiletufuga.  While they were in the house they were both violently assaulted by Tuiletufuga and Lavea.  As a result Tuiletufuga and Lavea were prosecuted and stood trial on a number of charges in the District Court in Auckland before Judge McElrea and a jury. 

[4]       Tuiletufuga was found guilty by the jury of aggravated assault and assault with a weapon.  He pleaded guilty to a charge under the Arms Act charge associated with the inappropriate use of the air-rifle.

[5]       The jury found Lavea guilty of common assault and assault with a weapon. He pleaded guilty to a charge laid under the Arms Act (also associated with the air rifle incident) and a further charge of failing to comply with a community work sentence. 

[6]       On 4 June 2003 both men were sentenced by Judge McElrea, Tuiletufuga to a total of four years five months imprisonment (with a non-parole period of 22 months) and Lavea to four years imprisonment (with a non-parole period of 20 months).  In the case of Lavea, a head sentence of 4 years was imposed on the assault with a weapon charge and shorter concurrent sentences on the other charges.

[7]       Lavea now appeals against his sentence.

The facts upon which Lavea was sentenced

[8]       The facts upon which Lavea was required to be sentenced were as follows.

[9]       When the two constables followed Tuiletufuga and Lavea into the house, Constable Grace informed Tuiletufuga that he was under arrest and attempted to handcuff him.  This resulted in resistance from Tuiletufuga who, as a result, was sprayed with pepper spray.  The pepper spray also came into contact with Lavea. 

[10]     At this point a general fracas developed. 

[11]     In the course of the fracas Tuiletufuga threw a gas heater containing a gas bottle at Constable Grace. This resulted in his conviction on the charge of assault with a weapon.  He also knocked Constable Grace to the ground and got on top of him.  He then struck Constable Grace on the head and shoulders with a number of forceful blows. For this he was convicted of aggravated assault. 

[12]     Lavea intervened in the process when Constable Grace was attempting to handcuff Tuiletufuga.  He did this by pushing Constable Naidoo out of the way as he went to assist Constable Grace.  He also stopped Constable Naidoo coming to the assistance of Constable Grace when the latter was pinned to the ground by Tuiletufuga.  He did this by throwing Constable Naidoo across the room. During or immediately after this incident Lavea used the pepper spray unit belonging to one of the officers on Constable Naidoo. Lavea was found guilty of assault with a weapon in respect of spraying Constable Naidoo and common assault in relation to the other acts of violence. 

[13]     Constable Grace suffered a significant injury to his eye.  Lavea was acquitted on the charge that related specifically to this injury.  Lavea was also acquitted on a charge associated with an allegation that he stomped on Constable Naidoo. Lavea’s conviction on the charge of common assault was accompanied by an acquittal on an alternative and more serious charge of assaulting Constable Naidoo with intent to obstruct him in the execution of his duty.  This suggests that the jury thought it was reasonably possible that Lavea initially became involved because he was concerned that the police constables were manhandling Tuiletufuga.

[14]     Tuiletufuga and Lavea are both heavyweight boxers. They are far more solidly built than the two constables and they were able to overpower the constables with little difficulty; this despite the constables being armed with pepper spray canisters and batons. 

Tuiletufuga’s appeal

[15]     Tuiletufuga appealed to this Court against conviction and sentence. 

[16]     The result was that the appeal against conviction was dismissed but the sentence appeal was allowed, producing a total sentence of three years imprisonment.  The non-parole term of 22 months was quashed and replaced with a non-parole of 15 months imprisonment, see R v Tuiletufuga CA205/03, 25 September 2003. 

Lavea’s appeal

[17]     Emboldened, no doubt, by that judgment, Lavea has now appealed against sentence. 

[18]     It is perfectly clear that Lavea’s appeal must be allowed.  Otherwise there would be an unwarranted disparity between his sentence as imposed by Judge McElrea (four years imprisonment) and the sentence of three years imprisonment which Tuiletufuga is now serving as a result of the decision of this Court in September 2003.  Tuiletufuga was seen by the sentencing Judge as the more culpable of the two men.  We therefore cannot allow the sentence of four years to stand.

[19]     The sentences imposed by the trial Judge might be taken to imply that Lavea’s culpability was the equivalent of 90 percent of the culpability of Tuiletufuga.  Adopting a mathematical approach would result in Lavea’s sentence being reduced to two years and eight months imprisonment and the non-parole period being reduced to 13 months imprisonment.  The Crown accepts that the appeal must be allowed to that extent and the only issue for us to determine is whether such reductions are sufficient.

[20]     To interfere with the sentence any further would involve revisiting the assessment made by Judge McElrea of the relative culpability of the two men.  The Judge was, of course, well placed to make this assessment given that he had presided over their trial.

[21]     Tuiletufuga’s culpability was greater than that of Lavea.  He started the incident by his non-co-operation generally and in particular when he resisted arrest.  He also has a record which is appreciably worse than that of Lavea and has previously served sentences of imprisonment.  On the other hand, Lavea’s role in the events was, undoubtedly, serious.  He intervened in the initial attempt to arrest Tuiletufuga.  Further, and significantly, his assault on Constable Naidoo facilitated the continuation by Tuiletufuga of his attack on Constable Grace; this given that Constable Naidoo was prevented from going to the aid of Constable Grace.  Although Lavea would appear to have been affected by the initial use by Constable Grace of the pepper spray, this was probably not as significant in his case as it was in the case of Tuiletufuga (against whom the pepper spray was primarily directed).  Against that background, we are not disposed to differ from the Judge’s assessment of relative culpability. 

[22]     Mr Edgar also contended generally that a sentence of two years eight months imprisonment is excessive for the offending. 

[23]     He noted that the pattern of the jury verdicts suggest that the jury thought it was reasonably possible that Lavea initially intervened because he thought that the police were unnecessarily manhandling Tuiletufuga.  He said that the pepper spray used by the police affected not only Tuiletufuga but also, and incidentally, Lavea.  He referred to other charges which Lavea faced in respect of which he was acquitted.  By way of comparison he referred us to the decisions of this Court in R v Levi CA104/97, 16 June 1997 and R v McMillan CA317/01, 31 October 2001 dealing with sentencing for broadly comparable offending. 

[24]     We see these arguments as having been largely answered in advance by the judgment of this Court in Tuiletufuga.  The Court considered this incident as warranting the maximum sentence of three years imprisonment for Tuiletufuga.  Accepting as we do that Lavea’s culpability was only slightly less than that of Tuiletufuga, we regard an overall sentence of two years eight months imprisonment as being appropriate.  We also see it as appropriate to reduce the non-parole period to 13 months imprisonment.

Disposition

[25]     The appeal is allowed.  The sentence on the charge of assault with a weapon is reduced to two years eight months imprisonment.  We do not interfere with the sentences imposed on the charges of common assault, the Arms Act breach and breach of community work, which are to be still to be served concurrently with the sentence imposed on the charge of assault with a weapon (now two years eight months imprisonment).  The non-parole period of 13 months which we fix is to apply to that sentence only.

Solicitors:
Crown Law Office, Wellington