Lavulo v The Queen - [2016] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND

CA483/2015
[2016] NZCA 158

BETWEEN	VILIAMI LAVULO Appellant
AND	THE QUEEN Respondent

Hearing:	4 April 2016
Court:	Wild, Clifford and Brewer JJ
Counsel:	M English for Appellant K S Grau for Respondent
Judgment:	29 April 2016 at 2.30 pm

JUDGMENT OF THE COURT

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

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REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Lavulo is serving a prison sentence of five years and nine months. It was imposed on him by Judge Bergseng in response to one charge of aggravated robbery, three charges of robbery and two charges of theft, to which Mr Lavulo had pleaded guilty.[1] Mr Lavulo accepts the prison sentence but contends that the Judge should not have directed a minimum period of imprisonment (MPI) of 50 per cent. He seeks to appeal that part of his sentence.
[1]R v Lavulo [2015] NZDC 12968 [sentencing notes].
The appeal is brought some three months out of time. The delay is explained partly by reference to the fact Mr Lavulo was waiting to be sentenced on additional charges and partly by reference to difficulties faced by his counsel in obtaining instructions. We therefore grant Mr Lavulo’s application for an extension of time to bring his appeal.

Issue on appeal

Mr Lavulo’s argument is that Judge Bergseng erred in imposing an MPI, or in the alternative that the MPI imposed was manifestly excessive. The Judge failed to give appropriate weight to his personal mitigating circumstances. Instead, it is submitted, the Judge gave inappropriatwe emphasis to holding Mr Lavulo accountable for the harm done by his offending, denouncing his conduct and seeking to protect the community from him.

Background

Mr Lavulo is 28 years old. At the age of 13, he moved to Australia with his mother. At the age of 16, he was sentenced to six years’ imprisonment, with an MPI of three years and six months, for an offence relating to kidnapping. He served this sentence in a Juvenile Detention Centre, but four months were added to it for assault of another inmate. In 2009, within two years of his release, Mr Lavulo was convicted of a charge of “robbery in company” and was sentenced to four years’ imprisonment, with a three year MPI. He was deported to New Zealand in 2012.
With that background in mind, we turn to consider the offending for which Mr Lavulo was sentenced by Judge Bergseng. The Judge set out the facts of the offending in some detail. We reproduce the account from the Judge’s sentencing notes because it gives the basis for the exercise of the discretion to impose an MPI:[2]
[2] The summary of facts, which I will go through in some detail gives a clear picture of what was occurring. The first incident is from 6.45 am on 14 July 2014. This is a charge of robbery in respect of the Four Square…

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 Lavulo v The Queen

Details

AGLC: Lavulo v The Queen [2016] NZCA 158
Case: [2016] NZCA 158
Decision Date: 29 April 2016 at 2.30 pm

CaseChat Overview and Summary

Viliami Lavulo, the appellant, sought an extension of time to appeal his sentence, which was imposed by Judge Bergseng for aggravated robbery, robbery, and theft, and to challenge the imposition of a 50 per cent minimum period of imprisonment (MPI). The appeal was brought three months out of time, partly due to Lavulo waiting to be sentenced on additional charges and partly due to difficulties faced by his counsel in obtaining instructions. The court granted Lavulo's application for an extension of time to bring his appeal, but dismissed the appeal against the sentence.

The legal issue before the court was whether Judge Bergseng erred in imposing an MPI of 50 per cent or whether the MPI imposed was manifestly excessive. Lavulo argued that the Judge failed to give appropriate weight to his personal mitigating circumstances and gave inappropriate emphasis to holding him accountable for the harm done by his offending, denouncing his conduct, and seeking to protect the community from him.

Lavulo's criminal history was relevant to the court's exercise of discretion. He had previously served significant terms of imprisonment in Australia for violent offending and was deported to New Zealand shortly before the current charges. The court found that the totality of the offending, the repetitive nature, the violence involved, and the targeting of vulnerable victims justified the imposition of an MPI of 50 per cent. The court also found that a minimum period of imprisonment of 50 per cent of the sentence was appropriate and not excessive.

The court granted the application for an extension of time to appeal, but dismissed the appeal against the sentence. The court found that Judge Bergseng did not err in exercising his discretion to impose an MPI in this case and that the personal mitigating factors of expressions of remorse, engaging in rehabilitative programmes, and beginning to understand and take responsibility for his offending were insufficient to displace the s 86(2) focus. The court held that the imposition of an MPI of 50 per cent of the sentence was appropriate and not excessive.

Orders