R v Lakatani - [2008] NZCA 507

IN THE COURT OF APPEAL OF NEW ZEALAND
CA657/2008
[2008] NZCA 507
THE QUEEN
v
NIGEL GENE JACKSON LAKATANI
Hearing:26 November 2008

Court:Robertson, Hugh Williams and Harrison JJ
Counsel:P T R Heaslip for Appellant

S J Mount for Crown

Judgment:28 November 2008 at 11.30am

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       On 23 September 2008, Nigel Lakatani was sentenced to three years’ imprisonment after pleading guilty to a count of aggravated robbery.
[2]       He appeals on the basis that the sentence was manifestly excessive and wrong in principle.
Factual background
[3]       At about 8pm on a Monday evening in April 2007, the appellant and two associates had gone to replenish supplies from a liquor store near a supermarket in Mangere. It was closed but one of his associates removed a metal chair from outside the liquor store and dragged it behind him as they walked in the direction of the supermarket carpark. There was a single car there. They decided to break into it, assuming it would be unoccupied.
[4]       In fact, asleep in the car was a Japanese national who was on holiday in New Zealand.
[5]       The victim was woken by a tap on the window by one of Mr Lakatani’s associates who was motioning for cigarettes or money. The occupant put up his hands, gesturing that he did not understand what was occurring.
[6]       One associate smashed the driver’s door window, and then the front windscreen of the car with the metal chair. He grabbed the occupant by his shirt. At about the same time another associate smashed the front passenger window with his fist.
[7]       While the victim was being held, the other two (including Mr Lakatani) entered the vehicle and uplifted the victim’s personal property from inside the car.
[8]       The three left and eventually divvied up what they had taken.
[9]       Mr Lakatani was spoken to by the police about six weeks later. He admitted his involvement saying that he was following what the other two were doing.
[10]     The two co-accused were located in early July and August respectively. They also admitted their involvement.
[11]     Notwithstanding their admitted involvement, the three accused maintained their not guilty pleas through to depositions. They were committed for trial on 1 February 2008.
[12]     Nothing changed at a first call-over on 24 April 2008.
[13]     Subsequently they sought a sentence indication. The Crown filed written submissions in advance, contending that the appropriate starting point was between four and five years’ imprisonment.
[14]     The appellant’s (then) counsel also filed written submissions in advance and submitted the starting point should be between two and a half and three years’ imprisonment.
[15]     The sentence indication hearing took place on 26 June 2008. The appellant and one of his co-accused appeared, but another did not. Judge Wade indicated that a starting point would be three and a half years’ imprisonment before any adjustment for personal factors. The…

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 R v Lakatani

Details

AGLC: R v Lakatani [2008] NZCA 507
Case: [2008] NZCA 507
Decision Date: 28 November 2008

CaseChat Overview and Summary

Nigel Lakatani was convicted of aggravated robbery and sentenced to three years' imprisonment. Lakatani, along with two associates, had broken into a car occupied by a sleeping Japanese tourist, assaulted him, and stolen his belongings. Lakatani appealed the sentence, arguing that it was manifestly excessive and wrong in principle. The appeal was heard by the Court of Appeal of New Zealand. The court held that the starting point for sentencing was between four and five years' imprisonment and that the sentence imposed was appropriate given the aggravating factors of the case. The court noted that the crime was committed by three attackers, involved the use of a weapon, actual violence, and the victim was a foreign tourist. The court rejected the argument that the sentence was in breach of sections 15A or 16 of the Sentencing Act 2002. The appeal was dismissed.

Orders