Lolesio v The King
[2025] NZHC 1421
•3 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2025-404-000057
[2025] NZHC 1421
BETWEEN RUSSELL LOLE PUA FETOA’I LOLESIO
Appellant
AND
THE KING
Respondent
Hearing: 19 May 2025 Appearances:
R S Murdock & D J Taumihau for the Appellant
N C Vaughan & C R Armstrong for the Respondent
Judgment:
3 June 2025
JUDGMENT OF TAHANA J
[Appeal against sentence]
This judgment was delivered by me on 3 June 2025 at 3.30pm
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Public Defence Service, Manukau
Crown Solicitor, Kayes Fletcher Walker, Manukau
LOLESIO v R [Appeal against sentence] [2025] NZHC 1421 [3 June 2025]
Introduction
[1] Mr Lolesio appeals a sentence of 10 years’ imprisonment.1 He was charged with possession of an offensive weapon,2 resisting police,3 unlawfully taking a motor vehicle (three charges),4 aggravated robbery (party),5 dangerous driving,6 aggravated robbery,7 attempted unlawful taking of a motor vehicle (two charges),8 wounding with intent to cause grievous bodily harm,9 aggravated assault,10 and reckless driving.11
[2] Mr Lolesio argues that the sentence was manifestly excessive because of the global starting point adopted by the sentencing Judge and the level of discount applied for his background, remorse and rehabilitative prospects. The Crown opposes the appeal and submits that the end sentence is not manifestly excessive.
Background
Possession of an offensive weapon and resisting police
[3] On 29 October 2023, Mr Lolesio was seen by members of the public at Cornwall Park looking into parked cars and holding what was described as a screwdriver. When the police arrived and informed him that he was being detained for a search for an offensive weapon, he produced a snapped badminton racket handle and held it in front of him. The police removed the handle and told him he was under arrest. He adopted a fighting stance and the police deployed O/C spray. Mr Lolesio would not put his hands behind his back when asked. After a brief struggle, the police handcuffed him.
1 R v Lolesio [2024] NZDC 31482 at [82].
2 Crimes Act 1961, s 202A(4)(a). Maximum penalty: 3 years imprisonment.
3 Summary Offences Act 1981, s 23(a). Maximum penalty: 3 months’ imprisonment or $2000 fine.
4 Crimes Act 1961, s 226(1). Maximum penalty: 7 years imprisonment.
5 Crimes Act 1961, s 66(1) and 235(c). Maximum penalty: 14 years imprisonment.
6 Land Transport Act 1998, s 35(1)(b). Maximum penalty: 3 months’ imprisonment or $4500 fine and 6 months disqualification.
7 Crimes Act 1961, s 235(a). Maximum penalty: 14 years imprisonment.
8 Crimes Act 1961, s 226(2). Maximum penalty: 2 years imprisonment.
9 Crimes Act 1961, s 188(1). Maximum penalty: 14 years imprisonment.
10 Crimes Act 1961, s 192(1)(c). Maximum penalty: 3 years imprisonment.
11 Land Transport Act 1998, s 35(1)(a). Maximum penalty: 3 months’ imprisonment, $4500 fine and 6 months disqualification.
[4] Mr Lolesio told police he had smoked methamphetamine and been awake for three days.
Unlawfully taking a motor vehicle and aggravated robbery (party)
[5] On the evening of 4 November 2023, Mr Lolesio and an associate stole a vehicle from a carpark and drove it to a shop called “Meet Fresh”.
[6] Mr Lolesio’s associate approached the counter with a screwdriver while Mr Lolesio blocked the employee (Mr L) from escaping from behind the counter. The associate jumped over the counter, grabbed Mr L in a headlock and held the screwdriver against his neck. He then walked Mr L to the cash register and demanded it be opened. Mr L emptied the register and gave Mr Lolesio’s associate additional cash stored under the counter.
[7] Mr Lolesio held another employee (Ms T) at the back of the shop while the register was being emptied. He then dragged her to where Mr L was standing, let go of her and grabbed Mr L. Mr Lolesio then dragged Mr L to the kitchen while his associate dragged Ms T behind them, demanding that she give him her handbag. The associate then took an iPhone from Ms T’s handbag.
[8] Mr L sustained scratches on his neck and a single cut to his head from where Mr Lolesio’s associate nicked him with the screwdriver.
Unlawfully taking a motor vehicle and dangerous driving
[9] In the early hours of 26 November 2023 Mr Lolesio stole a vehicle at knife point from the driver who was inside his vehicle at a petrol station.
[10] On the afternoon of 27 November 2023, the police air support unit (Eagle) observed Mr Lolesio driving the stolen vehicle. Police ground units approached Mr Lolesio who fled at high speed. He was observed driving on the wrong side of the road and driving through multiple red lights. He eventually stopped and surrendered to the police.
Aggravated robbery
[11] On the morning of 2 December 2023, Mr Lolesio brandished a fishing knife at an employee of a liquor store (Mr Y) after putting a bottle of alcohol on the counter. He swung the knife at Mr Y demanding he give him cash and cigarettes. He also tried to grab Mr Y’s mobile phone and took Mr Y’s car keys from a drawer. When Mr Y tried to prevent Mr Lolesio from leaving the store, he stabbed him in the back of the head. Mr Y sustained an arterial bleed, fractured skull, wounds to the back of his head and neck, and a small abrasion to his leg.
[12] Mr Lolesio walked away when the car keys would not open any of the parked cars in front of the store.
Wounding with intent, aggravated assault and vehicle related offending
[13] On the morning of 12 December 2023, Mr Lolesio approached Mr W who was in his vehicle at a petrol station. He opened the door and threatened Mr W with a hammer, striking Mr W on his legs as he tried to push him away. Mr W managed to escape. He suffered three gashes to his right knee and multiple grazes on both legs.
[14] When he was unable to start Mr W’s vehicle, Mr Lolesio approached another driver (Ms K) in her vehicle at a nearby intersection. He opened Ms K’s door and threatened her with the hammer, but she would not get out of the vehicle. He then fled on foot to a nearby car park. There, he approached a parked vehicle. Mr S and his son were inside and the driver’s door was open. Mr Lolesio threatened Mr S with the hammer to give him the vehicle. Mr S gave him the keys and left with his son. Mr Lolesio drove off and was later sighted by police. The vehicle was spiked. Mr Lolesio continued to drive in a dangerous manner, driving on the wrong side of the road with oncoming traffic. He stopped when he crashed into a stationary vehicle. He tried to run away but was apprehended by police.
The sentencing
[15] The sentencing Judge considered the aggravated robbery involving Mr Y and the wounding with intent involving Mr W were the most serious offences. He adopted
a starting point of six years’ imprisonment for the aggravated robbery and then applied the following uplifts for the other offending:
(a)seven years’ imprisonment for wounding with intent to cause grievous bodily harm and the associated offending;
(b)four years and six months’ imprisonment for the aggravated robbery of the Meet Fresh cafe; and
(c)12 months’ imprisonment for the other offending.
[16] Adding the above together to arrive at 18 years and six months’ imprisonment, the Judge then adjusted for totality by deducting six years’ imprisonment to arrive at a global starting point of 12 years and six months’ imprisonment.
[17] The Judge applied a 25 per cent reduction for guilty pleas and a reduction of one month imprisonment for time spent on electronically monitored bail. He uplifted the sentence by 12 months’ imprisonment for previous convictions and three months’ imprisonment for offending while on bail. The Judge also applied a discount of six months’ imprisonment for Mr Lolesio’s background, remorse and rehabilitation to arrive at an end sentence of 10 years’ imprisonment.
Law on appeal
[18] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.12 Otherwise, the Court must dismiss the appeal.13
[19] The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.14 Whether a sentence is manifestly excessive is to be
12 Criminal Procedure Act 2011, s 250(2).
13 Section 250(3).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
assessed in terms of the final sentence given rather than the process by which it was reached.15
Was the global starting point manifestly excessive?
[20] Ms Murdock for Mr Lolesio did not challenge the individual starting points adopted by the Judge but submitted that the adjustment for totality was insufficient. Ms Murdock argued that the Judge failed to consider that the offending occurred over approximately seven weeks and that the most serious offending (the aggravated robbery and the wounding with intent to cause grievous bodily harm) was similar in nature and occurred close together.
[21] The Crown argued that the focus on appeal should not be on the method by which the Judge arrived at the sentence but on the end sentence and whether it reflects the gravity of the overall offending.
[22] Section 84 of the Sentencing Act 2002 provides guidance on the use of cumulative or concurrent sentences of imprisonment. Cumulative sentences are generally appropriate if the offences are different in kind, whether or not they are a connected series of offences.16 Concurrent sentences of imprisonment are generally appropriate if the offences are of a similar kind and are a connected series of offences.17 In determining whether two or more offences are a connected series of offences, the Court may consider:18
(a)the time at which they occurred; or
(b)the overall nature of the offending; or
(c)any other relationship between the offences the court considers relevant.
15 Ripia v R [2011] NZCA 101 at [15].
16 Sentencing Act 2002, s 84(1).
17 Section 84(2).
18 Section 84(3).
[23] Section 85 requires the court to consider totality when sentencing for two or more sentences. If cumulative sentences are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.19
[24] Here, the Judge imposed cumulative sentences of five years’ imprisonment for the aggravated robbery on 2 December 2023 and five years’ imprisonment for the wounding with intent to cause grievous bodily harm on 12 December 2023.20 There is no explanation as to why cumulative sentences were imposed for those two offences but not in relation to the other offending.
[25] The offending occurred 10 days apart on 2 and 12 December 2023. Both sets of offending involved the use of a weapon, but the victims were different and unconnected.
[26] In Bevins v R the Court considered that it was open to the sentencing Judge to impose a cumulative sentence for two offences that were part of a targeted campaign but which involved different victims.21 The Court noted that the “focus is accordingly on the sentence ultimately imposed rather than the process by which it is reached.”22 The real issue being whether the sentence is wholly out of proportion to the gravity of the overall offending.
[27] I do not therefore consider the Judge erred in imposing cumulative sentences in circumstances where the victims were different. Further, the real issue is whether the sentence is manifestly excessive having regard to the overall offending.
[28] I agree with Ms Murdock that comparing the overall offending against comparable cases serves as a check on whether the starting point is manifestly excessive. Turning to comparable cases, Ms Murdock argued that the overall
19 Section 85(2).
20 Above n 1, at [97].
21 R v Bevins [2019] NZHC 1754 at [21].
22 At [21]; citing Tutakangahau v R, above n 14, at [36].
offending is closer to the cases where a starting point of nine or 10 years’ imprisonment was adopted.23
[29] Ms Murdock argued that Mr Lolesio’s offending was unplanned and unsophisticated and was driven by addiction. Mr Lolesio used makeshift weapons and not a firearm. Taking the level of violence into account, Ms Murdock submitted the offending is most analogous with Elliot where a starting point of nine years’ imprisonment was adopted.24
[30] Mr Elliott faced two charges of aggravated robbery and an associated charge of aggravated wounding. Mr Elliot and his associates were disguised and armed with a knife and a screwdriver. They stole cash and returned to a stolen vehicle where their other associate was waiting. That evening, Mr Elliott and three associates went to another superette. Again, Mr Elliot and his associates were disguised and armed with a knife and a screwdriver. When one of the employees triggered a panic alarm, Mr Elliott struck him in the arm with the screwdriver. It did not result in any significant injury. They left with some cigarettes and the cash register.
[31] Here, Mr Lolesio’s offending involved stabbing with a fishing knife and striking a member of the public with a hammer. The consequences of the wounding were more significant than in Elliott. Mr Lolesio’s offending is also more extensive as it occurred across five occasions and involved dangerous driving and resisting arrest. I consider that the offending is more serious than in Elliott.
[32] Ms Murdock argued that Mr Lolesio’s offending was less serious than the offending in R v Kolofale where the Judge initially came to a starting point of 13 years three months’ imprisonment but reduced it to 12 years’ imprisonment for totality.25 Mr Kolofale faced four charges (wounding with intent to injure, two charges of aggravated robbery and receiving). In that case, Mr Kolofale reoffended against the same victim six months later in front of his children and brandished a sawn-off shotgun during one of the aggravated robberies.
23 R v Warren [2017] NZHC 2889; R v Lisiate CA35/03, 4 December 2003; and Elliott v R [2018] NZCA 526.
24 Elliot, above n 23, at [11].
25 Kolofale v R [2022] NZCA 74 at [2].
[33] Here, Mr Lolesio faced 13 charges so while his most serious offending is less serious than in Kolofale, his overall offending is more extensive. In those circumstances, I do not consider that the Judge erred in adopting a starting point of 12 years and six months’ imprisonment. That starting point is consistent with the cases referred to by Ms Murdock having regard to Mr Lolesio’s overall offending.
[34] It follows, that I do not consider that the global starting point was manifestly excessive.
Was the discount for background, remorse and rehabilitative prospects inadequate?
[35] Ms Murdock argued that the discount of six months’ imprisonment (four per cent) for background, remorse and rehabilitative prospects was inadequate.
[36] In considering Mr Lolesio’s background the Judge referred to Berkland v R,26 noting that there may be some situations where considerations such as protecting the community from harm will limit the effect of background on sentencing outcomes.27 Here, the sentencing Judge considered that there was persuasive evidence of Mr Lolesio’s difficult background which helped to explain the offending. He however, considered that because of the very serious nature of the offending which prejudiced the safety of the victims and the community, the reduction for background factors should give way to the protection of the public.28
[37] Berkland provides guidance on the relevance of a person’s background to their sentencing noting that where it can be established that background was an operative or proximate cause of the offending it is likely to be a potent sentencing factor. The Court however, considered that requiring operative or proximate cause in every case would set the bar too high. The Court held that causative contribution was the appropriate standard to be met before applying a discount for background.29
26 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
27 Above n 1, at [60].
28 At [80].
29 Above n 26, at [108].
[38] The Court considered that causative contribution may be displaced, in whole or in part, where the offending is particularly serious. For instance, the Court noted that complex and orchestrated offending is likely to involve careful assessment of the risks of detection and therefore increased agency. The contribution of background to offending with this level of agency may therefore be significantly reduced or even negated and other sentencing goals, such as community protection, may become more important. Such an assessment will depend very much on the facts.30
[39] The Court’s analysis in Berkland indicates that the seriousness of the offending may be relevant to assessing the defendant’s agency. Where the nature of the offending indicates the defendant had a greater level of agency, this may negate the causative contribution of their background to the offending.
[40] The Court went on to find that Mr Berkland’s addiction together with his history of deprivation and trauma were drivers of his offending. They were relevant to his sentence because they had contributed causatively to his offending. The offending in that case was serious commercial drug offending. The Court applied a 10 per cent discount for background and a further 10 per cent discount for his efforts at rehabilitation noting that he appeared to have broken the cycle in his own life.31
[41] Here, the sentencing Judge noted the extent of Mr Lolesio’s deprivation. Mr Lolesio’s background includes neglect, drug and alcohol abuse, abuse, head injuries, mental health difficulties and relationship issues. A psychological report was provided to the sentencing Judge which considered that Mr Lolesio presented with a complex mixture of complex post-traumatic stress disorder (PTSD), head injuries, substance abuse and mental health difficulties. The report recommended that he have a full and comprehensive assessment of his cognitive functioning and engage in psychological treatment. The report also recommended that he be assisted with support for the consequences of the abuse he suffered.
[42] I agree with Ms Murdock that the guidance in Berkland requires that the Court consider the extent of the defendant’s agency, having regard to their background and
30 At [111].
31 At [160].
the complexity of the offending. Mr Lolesio’s offending was unsophisticated. It was certainly not complex or on any commercial scale. Mr Lolesio’s cognitive issues and addiction issues are also relevant. I accept, as the sentencing Judge did, that his background contributed causatively to the offending.
[43] The Crown argued that there is insufficient causative contribution between any purported addiction issues and the offending such that a greater discount is justified. The Crown referred to the fact Mr Lolesio said he was under the influence of methamphetamine when he committed the offending which cannot justify a discount given s 9(3) of the Sentencing Act 2002, which provides that the Court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption of drugs or alcohol.
[44] The issue here is the causative contribution of Mr Lolesio’s background which includes addiction, cognitive issues and a history of abuse and neglect. That background can be taken into account for sentencing purposes, and I am satisfied that there is a nexus between his background and offending. I do not consider that the nature of his offending indicates that Mr Lolesio had such a degree of agency that there was a break in the causative contribution of his background to the offending. The offending was chaotic and not pre-meditated. It was also unsophisticated indicating that his background was likely a real causative contributor to the offending.
[45] I consider that in the circumstances a four per cent discount was inadequate and that a 10 per cent discount is more appropriate.
Remorse and rehabilitation
[46] Turning to remorse and rehabilitation, given the very small discount of four per cent, I do not consider that it adequately took into account Mr Lolesio’s remorse and prospects of rehabilitation. I consider that an additional five per cent discount is appropriate for remorse and rehabilitative prospects.
[47] I therefore consider that a four per cent discount was manifestly inadequate and an overall discount of 15 per cent (10 per cent for background and five per cent for remorse and rehabilitative prospects) is appropriate.
Result
[48]The appeal is allowed.
[49] The cumulative sentence of five years’ imprisonment imposed for the aggravated robbery of the liquor store is quashed and substituted with a sentence of four and a half years’ imprisonment.
[50] The cumulative sentence of five years’ imprisonment imposed for the charge of wounding with intent to cause grievous bodily harm is quashed and substituted with a sentence of four years’ imprisonment.
[51]The respective concurrent sentences remain.
[52]The effective total sentence is therefore eight and a half years’ imprisonment.
Tahana J
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