R v Lauena - [2018] NZHC 483

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-004882

[2018] NZHC 483

THE QUEEN

v

VAI PAIA LAUENA

Hearing: 20 March 2018

Appearances:

H Steele for Crown

P H H Tomlinson for Defendant

Judgment:

20 March 2018

SENTENCING REMARKS OF LANG J

R v LAUENA [2018] NZHC 483 [20 March 2018]

[1] Mr Lauena, you pleaded guilty in the District Court to charges of shoplifting and aggravated robbery. The maximum penalty on the shoplifting charge is three months imprisonment, whilst the maximum penalty on the charge of aggravated robbery is 14 years imprisonment.

[2] Given your previous convictions, the Crown considered you may be a candidate for a sentence of preventive detention. For that reason it submitted, and the Judge in the District Court accepted, that you should be sentenced by the High Court so that preventive detention could be considered.

The facts

[3] The facts that give rise to the two charges are set out in two summaries of fact that you accept. The shoplifting charge was laid after an incident that occurred on the afternoon of 28 April 2017. On that afternoon you entered a store in Albany and went to the area around the till. You waited until staff were distracted by other customers and then removed $150 in bank notes from the till before leaving the store. The offending was detected when the staff noticed cash missing at the end of the day. A review of the CCTV camera footage from the store established that you were responsible for taking the money.

[4] The charge of aggravated robbery relates to an incident that occurred five days later on 3 May 2017. At about 1.10 pm that day you followed a female customer into a bank in Glenfield. You were wearing a white hooded jumper with the hood partially covering your face, and a pair of black sunglasses. You were wearing black gloves and were carrying what appeared to be a black handgun. It is now accepted that this was a toy gun.

[5] Once you got into the bank you leapt over the counter and confronted the tellers on the other side of the counter. You then asked for money and began helping yourself to money from the till drawers. You placed the money in a cloth bag you had brought into the bank. You told one of the bank staff that you wanted the money in the bank safe. She told you that she could not open it herself and would need someone else to open it. At that point you asked to be let out of the bank. The bank officer walked you to the exit and you then left the bank taking approximately $7,200 in cash.

[6] I have read the victim impact statements prepared by the two bank officers whom you confronted on this day. It is clear from their statements that they have been deeply affected by this experience. Not surprisingly,…

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 Lauena

Details

AGLC: R v Lauena [2018] NZHC 483
Case: [2018] NZHC 483
Decision Date: 20 March 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over by Lang J, sentenced Vai Paia Lauena for charges of shoplifting and aggravated robbery. Lauena had pleaded guilty to these charges, with the maximum penalties being three months imprisonment for shoplifting and 14 years for aggravated robbery. Given Lauena's criminal history, the Crown suggested that preventive detention might be appropriate. The District Court Judge agreed, referring the case to the High Court for sentencing. The facts of the case involved two incidents: shoplifting $150 from a store in Albany, and aggravated robbery of a bank in Glenfield, where Lauena stole $7,200 while disguised and wielding a toy gun.

The legal issues included determining the appropriate starting point for sentencing, considering aggravating and mitigating factors, and deciding whether to impose a minimum term of imprisonment or preventive detention. Lang J started with a six-year imprisonment baseline for aggravated robbery, increased by 12 months due to Lauena's recidivist behaviour and by another three months for breaching release conditions, resulting in a starting point of seven years three months. A 25% discount for early guilty pleas reduced the sentence to five years five months, but a minimum term of three years four months was imposed to reflect sentencing principles of deterrence, denunciation, accountability, and community protection. The court also considered preventive detention, ultimately deciding against it due to Lauena's expressed motivation for rehabilitation and potential support upon release. The final sentence included five years five months for aggravated robbery, with a minimum term of three years four months, and two months concurrently for the theft and burglary charges.

Orders