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Lavemai v R

Lavemai v R

Case [2016] NZCA 363 28 July 2016

Criminal Liability

Sentencing

Breach of Contract

Unconscionable Conduct

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA344/2014
[2016] NZCA 363

BETWEEN	KAVEINGA HELOTU LAVEMAI Appellant
AND	THE QUEEN Respondent

Hearing:	20 July 2016
Court:	Randerson, Fogarty and Collins JJ
Counsel:	A J Ellis for Appellant M A Corlett QC for Respondent
Judgment:	28 July 2016 at 10:30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant Mr Lavemai was convicted after a jury trial before Gilbert J on one count of theft and one count of murder. He was sentenced on 16 April 2014 to life imprisonment with a minimum period of imprisonment of 17 years.[1]
[1]R v Lavemai [2014] NZHC 797.
Initially, Mr Lavemai appealed against both conviction and sentence but he has formally abandoned his conviction appeal. Despite the abandonment of the conviction appeal, the sentence appeal is primarily advanced on the basis of alleged counsel incompetence. The usual ground that the sentence was manifestly excessive is advanced only on a secondary basis.
The appeal was filed out of time but the Crown does not oppose an extension of time. We grant an extension of time to appeal accordingly.

The facts

In sentencing Mr Lavemai, Gilbert J succinctly summarised the facts in these terms:
[2]       On 11 October 2012, you spent most of the day drinking alcohol. There is some suggestion that you were also using methamphetamine but you cannot recall this. You were under pressure to pay a debt you owed for the supply of drugs. At about 6pm that day you went to your neighbour’s property intending to steal something which you could then offer in part payment of the debt. The victim, Mr Lees, was staying temporarily at this address with two of his friends although they were not present at the time. Mr Lees came to the door when you arrived. He was polite and invited you in. Without warning, and without any provocation on Mr Lees’ part, you punched him almost immediately upon entering the premises. You landed Mr Lees on the couch with your first punch. He was soon knocked unconscious and was unable to defend himself or offer any resistance as you continued to punch him repeatedly on the head and neck.
[3]       You left Mr Lees in a slouched position on the couch, struggling for breath, as you unplugged the stereo and took those components and a PlayStation back to your house. Despite returning several times for this purpose, you made no attempt to assist Mr Lees or seek assistance for him. When his friends arrived back the following morning they found Mr Lees dead on the couch where you had left him. This was obviously a shocking and deeply troubling experience for them.
[4]       You told one of your friends the following morning that you had “punched and punched and punched” and that you had “wanted to stop but…

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 Lavemai v R

Details

AGLC: Lavemai v R [2016] NZCA 363
Case: [2016] NZCA 363
Decision Date: 28 July 2016 at 10:30 am

CaseChat Overview and Summary

Kaveiniga Helotu Lavemai appeals against his sentence of life imprisonment with a minimum period of imprisonment of 17 years imposed by the High Court at Auckland on 16 April 2014. The appeal is advanced on the basis of alleged counsel incompetence and that the sentence was manifestly excessive. The Crown does not oppose an extension of time to appeal. The appeal was filed out of time but the Crown does not oppose an extension of time. We grant an extension of time to appeal accordingly. The appeal against sentence is dismissed. The appellant had abandoned his appeal against his conviction so the sentence appeal must be determined on the basis that he has been found guilty of murder and theft on the basis of the facts found by the sentencing Judge. The appellant submits that the sentence might have been very different if the three-punch scenario had been accepted. This submission fails for a number of reasons including that it is contradicted by unchallenged evidence at trial that at least 11 blows were delivered to the victim’s head and neck. The appellant also submits that a guilty plea might have been entered to the charge of murder with him seeking a disputed facts hearing. Again, this submission fails because on the evidence, the Court could not have accepted that three punches would have caused the victim’s death. The appellant also submits that the Judge ought to have asked the jury to identify the legal basis for the murder conviction. This submission is rejected because the Judge had the benefit of hearing all the evidence adduced at trial and made the factual findings he did. For sentencing purposes, it was therefore immaterial whether the jury’s verdict was reached under s 168 or s 167(b). Both would clearly have been open on the facts. The appellant further submits there was no evidence that his counsel had informed him in advance that she intended to concede a 17-year minimum term was appropriate and he had not given her instructions to make this concession. This submission also fails because the sentence imposed was appropriate and there were no circumstances advanced which could have supported a submission based on manifest injustice.

Orders