R v Lakakula
[2019] NZHC 2615
•15 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-272
[2019] NZHC 2615
THE QUEEN v
TRAVIS LAVAKULA
Hearing: 15 October 2019 Appearances:
L P Radich for the Crown
A J Holland for the Defendant
Judgment:
15 October 2019
SENTENCING NOTES OF POWELL J
R v LAVAKULA [2019] NZHC 2615 [15 October 2019]
[1] Travis Lavakula, you appear for sentence today on a large number of charges. First you are here for a series of offences committed against the primary victim, who is here in court today. These occurred in January 2018. The charges for which you are being sentenced are:
(a)two charges of male assaults female;1
(b)five charges of injuring with intent to injure;2
(c)one charge of wounding with reckless disregard;3
(d)two charges of assault with intent to injure; and4
(e)two charges of assault with a weapon.5
Secondly, you are being sentenced for:
(a)one charge of possession of methamphetamine; and6
(b)one charge of possession of ammunition.7
[3] Thirdly, you have also pleaded guilty to a number of other charges for offences committed in Otahuhu in February 2018 being:
(a)one charge of male assaults female;8
(b)one charge of reckless driving;9
1 Crimes Act 1961, s 194(b): maximum penalty of two years’ imprisonment.
2 Section 189(2): maximum penalty of five years’ imprisonment.
3 Section 188(2): maximum penalty of seven years’ imprisonment.
4 Section 193: maximum penalty of three years’ imprisonment.
5 Section 202C: maximum penalty of five years’ imprisonment.
6 Misuse of Drugs Act 1975, s 7(1)(a): maximum penalty of six months’ imprisonment.
7 Arms Act 1983, s 45: maximum penalty of four years’ imprisonment.
8 Crimes Act 1961, s 194(b): maximum penalty of four years’ imprisonment.
9 Land Transport Act 1998, s 35(1)(a): maximum penalty of three months’ imprisonment/$4,500 fine.
(c)one charge of failing to stop; and10
(d)one charge of aggravated assault.11
Factual background
The January offending
[4] The January 2018 offending saw you subject the primary victim to what can only be described as a campaign of horrific violence over a three-day period when it appears you were high on methamphetamine:
(a)on 23 January you threatened to burn her face and proceeded to singe her eyebrows with a barbeque lighter;12
(b)you threatened to pour boiling water on her, you taped her mouth shut and then you poured hot water on her vagina;13
(c)you tied a necktie around her neck and pulled it with sufficient force that the primary victim lost consciousness. When she regained consciousness you then kicked her twice to the side of her body, slapped her in the face, abused her, pulled her hair and hit her head on the ground;14
(d)you made her lie face down on a bed, you then proceeded to tie a bathrobe strap around her neck, placed pillows over her head, and then sitting on the pillow, preventing her from breathing, while pushing her body with force rendering her unable to walk and making her crawl around the house;15
10 Section 52A: maximum penalty of two years’ imprisonment.
11 Crimes Act 1961, s 192: maximum penalty of three years’ imprisonment.
12 Charge 1.
13 Charge 2.
14 Charge 3.
15 Charge 4.
(e)you then slapped her on the face and pulled the bathrobe strap around her neck again making her lose consciousness;16
(f)the next day on 24 January you became paranoid and instructed her to climb into the roof cavity of the house to see if anybody was there and to write in a notebook where her cellphones were;
(g)you held various weapons to her and made threats and then slapped her on the face, caused the primary victim to fall to the floor, grabbed her head and hit it on the floor and then kicked her twice in the face;17
(h)on 25 January after searching the primary victim for cellphones made further threats; you then pulled her into a room, and slapped her on the face causing the primary victim to fall onto the couch;
(i)you then hit her multiple times with a coffee mug with such force that the mug hit her arm and broke, causing a laceration in her arm requiring several stitches;18
(j)while the primary victim was trying to get treated for this you then hit her head forcefully into a mirror and wall while threatening to “smash her face into the mirror”;19
(k)when the primary victim had a bath you then forced her head under the water on two occasions20 and then after that forced the shower head pipe into her mouth and tried to force it down her throat;21 and
(l)later that same day – on 25 January – you went driving with the primary victim and you instructed her to put a seatbelt around her neck and then pulled on it with sufficient force that the primary victim passed out.
16 Charge 5.
17 Charge 6.
18 Charge 7.
19 Charge 8.
20 Charge 9.
21 Charge 10.
When she regained consciousness, you told her “that’s it, you’re dying today”.22
[5]Fortunately, the primary victim was able to escape and the Police were notified.
[6] As a result of the sustained assault against her, and in addition to the stitches in her arm, the primary victim suffered severe bruising to large portions of her body, not to mention serious emotional harm as reflected in her victim impact statement.
Methamphetamine and ammunition offending
[7] The methamphetamine and ammunition offending became apparent after the Police searched your house and located 5.43 grams of methamphetamine and three .22 calibre bullets.23
The February offending
[8] The February offending took place on 3 February 2018 when you were located by Police driving a vehicle in the Otahuhu area. You failed to stop for red and blue flashing lights,24 you then accelerated through a traffic light at an intersection and proceeded to drive on the wrong side of the road, where several oncoming vehicles were forced to take evasive action, reaching speeds of up to 100 kph in an 80 kph zone, and later reached speeds of up to 125 kph.25
[9] You then turned into the Sylvia Park shopping complex and abandoned your vehicle. You then approached a vehicle occupied by three woman who were unknown to you.
[10] You got into their vehicle through the rear door and told the driver to start driving. As you entered the vehicle one of the passengers made an unsuccessful
22 Charge 11.
23 Charge 13.
24 Charge 15.
25 Charge 14.
attempt to lock the door. After getting into the vehicle, you grabbed that passenger and forcefully shoved her into the window, causing her to become dizzy.26
[11] You then climbed into the centre console and pulled the right seatbelt tight against the driver’s body while hitting her hand. You wrapped your arm around her neck while telling her to drive and at the same times making threats against the driver.27
Purposes and principles of sentencing
[12] The Sentencing Act 2002 sets out the purposes and principles of sentencing. The primary purposes of sentencing in this case are to hold you accountable for the harm that you have done to all of the victims;28 to promote in you a sense of responsibility for, and acknowledgement of the harm that you have done;29 to denounce your conduct;30 to deter you and others from committing similar types of offences31 and to protect the community from you.32
[13] The principles of sentencing that are of particular relevance in this case are the need to take into account the gravity of the offending, including your degree of culpability;33 and to take into account the seriousness of the types of offences in comparison with other types of offences.34 It is also necessary to take into account the general desirability of consistency with appropriate sentencing levels35 and to take into account the information provided to the Court concerning the effect of the offending on the victims.36
26 Charge 16.
27 Charge 17.
28 Sentencing Act 2002, s 7(1)(a).
29 Section 7(1)(b).
30 Section 7(1)(e).
31 Section 7(1)(f).
32 Section 7(1)(g).
33 Section 8(a).
34 Section 8(b).
35 Section 8(e).
36 Section 8(f).
Approach to sentencing
[14] Determining your sentence today involves me undertaking three steps. First, I must determine what is called the starting point. The starting point is a term of imprisonment that reflects the seriousness of the offending for which you have pleaded guilty. The second calculation I must do involves adjusting that starting point to take into account your relevant personal circumstances. Finally, I must consider whether a discount is appropriate for your guilty plea and if so, how much.
Starting point - General
[15] I turn first to the calculation of the starting point. As you have heard me discuss with counsel today, in your case it is a pretty complex exercise. This is because of the sheer number of offences and because none of the offences you have been charged with in relation to the January offending by itself carries a sufficient penalty to be able to lump together all your offending to adequately reflect the seriousness of that offending. The other reason that the sentencing is complex is that, as you again have heard us discuss today, the most serious offence that you are being sentenced on, that of wounding with reckless disregard, is a second-strike offence which means that the penalty that I impose on that charge must be served without parole. There are various cases that set out how to construct sentences against the backdrop of second strike offending and you have heard counsel discuss some of those approaches today.37
[16] It is that complexity that has led to different approaches by counsel in this case, followed by the approach that I have proposed and which I will take.
[17] In particular you heard that Mr Radich proposed that the total seriousness of the offending against the primary victim justified a starting point of some 9 to 10 years in respect of those January offences, taking the wounding with reckless disregard as the lead charge. The effect of this would have meant that the whole of that sentence would have had to have been served without parole so Mr Radich for the Crown proposed that a discount be made to reduce the sentence to between 6 and 7 years to be served without parole. As you heard, I had issues with this approach because it was
37 R v Paerau [2018] NZCA 138; Barnes v R [2018] NZCA 42; Paerau v R [2018] NZCA 139; and
Wipa v R [2018] NZCA 219.
difficult to see how you could get to 9 to 10 years taking into account all of the offending when, as noted, the most serious charge you face had a maximum penalty of only 7 years. It was equally difficult to see a principled basis (assuming you could get to the 9 to 10 years) for then reducing the sentence to 6 or 7 years to be served without parole.
[18] On the other hand, Mr Holland, on your behalf, suggested pulling out the wounding with reckless disregard charge, and assigning that a discrete sentence of two years, which would be your minimum period of imprisonment for the second-strike offence. Then, in respect of everything else, allocating some five years imprisonment for that.
[19] I had difficulties with Mr Holland’s approach because quite clearly, the wounding with reckless disregard is part of a wider context of offending and it seemed that it was artificial in terms of that approach to give a discrete sentence just on that charge, just to avoid the consequences of the second-strike regime.
[20] As a result, as you heard, I proposed an alternative approach which involved breaking your January offending down into different parts and working out what was appropriate for each part to get to the starting point. In order to get to an appropriate sentence this meant that each of the sentence components would be what we call cumulative on each other. That is, they would be served one after the other. The parts that I identified were the offending on 23 January, 24 January and the first part of 25 January (which included the wounding with reckless disregard charge and the sequels in the bathroom), with the fourth component being the 25 January injuring with intent to injure which then occurred while you and the primary victim were out driving. To those, of course, would then be added calculations for the methamphetamine and ammunition charges and for the February offending.
[21] Having set that out and given counsel the chance to consider that approach, both agreed that it was a principled approach to the issue of sentencing today.
Starting Point - Calculation
[22] Turning to the calculation of the starting points for each of those components I have identified, I turn first to 23 January 2019. As you have heard, this offending involved three charges of injuring with intent to injure and two charges of male assaults female. Each of the charges of injuring with intent to injure involved strangulation as well as other violence. The male assaults female charges involved the barbecue lighter and the singeing of the eyebrow, taping to the mouth and hot water to the vagina.
[23] Quite clearly that offending involved a number of aggravating factors in terms of the guideline judgments including what could be termed as extreme violence, attacks to the head, use of weapons, strangulation, breach of trust, cruelty and elements of detention.38 I am conscious of Mr Holland’s submission that there is certainly some double-up between each of those categories in this offending.
[24] Taking these various aggravating factors and noting there are no mitigating factors relating to the offending itself, I fix a starting point of three years for the 23 January offending.
[25] The 24 January offending, the injuring with intent to injure charge, it is not quite such serious conduct as what occurred on the day before and the day after but still involves attacks to the head and a breach of trust, when you slapped the primary victim on the face and she fell down, and you then grabbed her head and hit it on the floor twice and kicked her twice.
[26] For the single charge making up the 24 January offending the starting point is one year.
[27] For the first part of the 25 January offending, including the wounding with reckless disregard, which as I noted was hitting the primary victim on the head with a coffee mug and then breaking that mug and cutting her arm, followed by the two assaults with intent to injure as she was trying to get treatment (including forcing her
38 R v Nuku [2012] NZCA 584.
head underwater), and the assault with a weapon (pushing the pipe down her throat). Again, all of the aggravating features of the 23 January offending are present and in addition, quite clearly, there is a lasting impact from the injuries that were caused. Overall, I regard this as the most serious of the offending and fix the starting point at four years.
[28] The final part of the January offending was the further incident on 25 January when, when out driving with the primary victim, you attempted to choke her with her seatbelt and made further threats. In respect of that offending, again while a number of the aggravating features are present, it is not as serious as some of your other offending and I fix the starting point for that charge at one year.
[29] With regard to the other offending, the possession of methamphetamine and ammunition, as you have heard, counsel are largely agreed that on each of those charges there should be a further cumulative sentence of one month, making a total sentence on those charges of two month’s imprisonment.
[30] In terms of the February offending, again the offending which not only involved your own reckless driving, putting a large number of members of the public at risk, but also included the specific actions against the three people in the car that you commandeered. The particular aggravating features of that offending include the fact that your actions were to facilitate your flight; the danger posed to the community; the vulnerable victims, as at least one of the victims in the car was only 15 years old at the time; that they could not get away; and, obviously, there were also elements of detention as you forced them to drive off.
[31] Likewise, you used actual violence and indeed there were threats to kill and, as with the primary victim, the victims have also suffered ongoing impacts particularly the way in which they feel going out into public since that incident. Taking those matters into account, I fix a starting point of a further two years’ imprisonment in respect of that offending.
[32] Adding these various starting points together, on the basis that each of them is cumulative, gives a total starting point of 11 years and 2 months’ imprisonment.
Personal mitigating factors
[33]I then turn to the matters personal to you.
[34] As Mr Radich has noted you have a moderate offending history but the Crown does not seek any uplift for that history.
[35] There is before the Court a very helpful cultural report under s 27 of the Sentencing Act. As you have heard me discuss with counsel this report, by Ms Turner, provides considerable context for your offending. It demonstrates that you have had a very difficult upbringing and it explains to some degree, why, noting that you are still very young, why you were so vulnerable when you were introduced to methamphetamine and how the offending could therefore have come about. As Mr Radich says, it does not in any way excuse that offending but it does provide valuable context.
[36] I take into account too the recent rehabilitative efforts that you have undertaken, evidenced by the certificates tendered by Mr Holland on your behalf, a certificate of completion for a Community Alcohol and Drug Services – Alcohol and other Drug Programme and the “Six Thinking Hats” programme undertaken by the Howard League for Penal Reform. It is to your credit that you are starting to take some steps to address the problems that you have been facing.
[37] On the other hand, I do not accept Mr Holland’s submissions that there should be any additional discount given for remorse over and above that evidenced by your guilty plea to the various charges. Nor do I accept that there is sufficient evidence that you have left the Crips gang. I note that the s 27 report, which was completed only a month ago, actually says very much the contrary.
[38] Finally, I also am unable to give any further credit for the rehabilitative steps that you undertook in 2017, noting that while indeed for a short period you may have been alcohol free and had a job, it was indeed the period immediately before the present offending when patently you were unable to control yourself, with the result being the present offending for which you are being sentenced.
[39] However, taking into account the matters that I have indicated should be given credit for, I am satisfied that there should be a discount of 15 per cent for the combined effects of youth, the difficulties in your upbringing and the rehabilitative efforts that you have undertaken this year. By my calculation this reduces the overall starting point from 11 years and 2 months to 9 years and 6 months and the minimum period of imprisonment represented by the second-strike offence for the first part of the 25 January offending goes from 4 years to 3 years and 5 months.
Guilty plea
[40] I turn now to the third part of my analysis which is the discount for the guilty plea. As you have heard both counsel accept that there should be a discount for a guilty plea. There has just been a dispute over how much this should be.
[41] Having considered the submissions of counsel I accept Mr Holland’s submissions that in this case there was not simply a late guilty plea, only a couple of weeks out from the trial. I accept that there had been a number of a lawyers and Mr Holland was able to perhaps make progress where others had not. But more particularly there does appear to have been considerable work still to do to reach a resolution and it is clear that significant charges were dropped before the final resolution was obtained which meant that none of the complainants were required to go to trial.
[42] Taking all of these matters into consideration, I conclude that there should be 20 per cent given for the guilty plea.39
[43] By my calculation this takes the overall sentence made up of the various cumulative sentences, from 9 years and 6 months to 7 years and 7 months and the minimum period of imprisonment represented by the first part of the 25 January offending to 2 years and 9 months.
39 See R v Haggar [2014] NZHC 3082 at [36]: in this case the defendant pleaded guilty on the eve of the trial and a discount of 20 per cent was considered appropriate.
Other considerations
[44] Having got to this point I have considered whether there is any need for a further discount for totality or for the effects of the second-strike regime on the ability for you to access parole.
[45] Having undertaken this exercise I do not consider that any further discount is warranted and in particular note that, with time served, it means that you will be eligible for parole in perhaps just over a year.
[46] In sentencing you today there are two final things to take into account. The first is that one of the charges to which you have pleaded guilty is reckless driving and another is failing to stop. In respect of both of those offences you are sentenced to six months’ disqualification to be served cumulatively.40 I also note that the prosecution have sought a protection order for The primary victim pursuant to s 123B(2) of the Sentencing Act and I have no hesitation in concluding that such an order is appropriate.
Sentence
[47]Mr Lavakula could you please stand.
[48] In respect of the January 2018 offending the methamphetamine and ammunition offending and the February offending you are sentenced as follows:
(a)January offending –
(i)23 January (five charges) – 2 years’ imprisonment;
(ii)24 January (one charge) – 8 months’ imprisonment;
(iii)25 January (at home offending) (four charges) – 2 years and 9 months’ imprisonment;
40 Land Transport Act 1998, s 35(2)(b) and s 52A(3) and (6).
(iv)25 January (driving offending) (one charge) – 8 months’ imprisonment.
(b)Methamphetamine and Ammunition offending –
(i)Possession of methamphetamine (one charge) – 1 month imprisonment;
(ii)Possession of ammunition (one charge) – 1 month imprisonment.
(c)February offending (four charges) – 1 year and 4 months’ imprisonment.
[49] Each of these terms is to be served consecutively, cumulatively, that is meaning that in total you are sentenced to imprisonment for a total term of 7 years and 7 months’ imprisonment. This includes a minimum period of imprisonment in respect of the second-strike offence (being the wounding with reckless disregard charge) of 2 years and 9 months.
[50] In addition, you are disqualified from holding or obtaining a driver’s licence for 12 months from today’s date and a protection order is issued in favour of the primary victim. Finally, I note for completeness convictions are also entered on charges two, four and five and charges of threatening to kill/do grievous bodily harm and unlawfully enters motor vehicle are formally withdrawn.
[51]A table setting out the final sentence on each charge is set out at Appendix A.
[52] Mr Lavakula, this was horrendous offending. You need to be very clear that because of the consequences of the strike’s regime should you ever offend in this manner again the consequences will be very, very severe for you. As both Mr Radich and Mr Holland have noted, you are still young, and you still have the opportunity to turn your life around. It will be difficult but you have taken the first steps by starting to attend rehabilitative courses. If indeed you have left the gang that is another important first step and if you have not at this point, you really need to do it because
unless you turn yourself around now where the minimum period of imprisonment is still manageable, it is unlikely that you will get another chance. Even on the offending for which I have sentenced you today in respect of the second-strike charge – if it becomes a third strike charge it would mean seven years’ imprisonment without parole together with whatever else is allocated for the other offences. The sentence today gives you a chance to do some serious thinking. You need to ask for help and I hope that you get it, but certainly you do need to make some serious changes. Mr Lavakula you may stand down.
Powell J
Appendix A: Travis Lavakula – Details of Sentence
Charge 1
6 months’ imprisonment
(Concurrent with Charge 5)
2
6 months’ imprisonment
(Concurrent with Charge 5)
3
2 years’ imprisonment
(Concurrent with Charge 5)
4
2 years’ imprisonment
(Concurrent with Charge 5)
5
2 years’ imprisonment
(Cumulative with Charge 6,7,11,12,13,17)
6
8 months’ imprisonment
(Cumulative with Charge 5,7,11,12,13,17)
7
2 years 9 months’ imprisonment
(To be served without parole/
cumulative with Charge 5,6,11,12,13,17)
8
6 months’ imprisonment
(Concurrent with Charge 7)
9
6 months’ imprisonment
(Concurrent with Charge 7)
10
1 year imprisonment
(Concurrent with Charge 7)
11
8 months’ imprisonment
(Cumulative with Charge 5,6,7,12,13,17)
12
1 months’ imprisonment
(Cumulative with Charge 5,6,7,13,17)
13
1 months’ imprisonment
(Cumulative with Charge 5,6,7,12,17)
14
2 months’ imprisonment
(Concurrent with Charge 17)
15
3 months’ imprisonment
(Concurrent with Charge 17)
16
6 months’ imprisonment
(Concurrent with Charge 17)
17 1 year 4 months’ imprisonment
(Cumulative with Charge 5,6,7,11,12,13)
Total
(Sum of cumulative sentences)
= 7 years and 7 months
2 years and 9 months to be served without parole.
0
4
0