R v Lavemai

[2024] NZHC 835

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-004-8998

[2024] NZHC 835

THE KING

v

PAULA VILIHIFO LAVEMAI

Hearing:	17 April 2024
Appearances:	I L M Archibald for Crown S R Norrie for Defendant
Sentence:	17 April 2024

SENTENCING REMARKS OF LANG J

Solicitors/counsel:

Office of the Crown Solicitor, Auckland S R Norrie, Auckland

R v LAVEMAI [2024] NZHC 835 [17 April 2024]

[1]    Mr Lavemai, you appear for sentence having pleaded guilty to a charge of common assault.1 That charge carries a maximum sentence of 12 months imprisonment.

Facts

[2]    You pleaded guilty on the basis of an agreed summary of facts. This details events that occurred on the afternoon of 5 August 2023. On that afternoon, members and associates of the Rebels motorcycle gang and members of another gang were involved in what appears to have been a pre-arranged confrontation at a park in Point England. Shots were fired and a person subsequently died of gunshot wounds as a result. The Crown does not allege that you participated in the events that occurred at the park. The charge to which you have pleaded guilty relates to an incident that occurred a short time earlier as members and associates of the Rebels gang, with which you had an association through another group, were making their way to Point England.

[3]    The summary records that you and two associates left the Rebels gang pad in a motor vehicle to travel to Point England. Whilst travelling along Great South Road in Otahuhu, you and your associates took issue with the manner in which another vehicle was being driven. When both vehicles stopped at a red light, you and your associates got out of your vehicle and accosted the driver of the other vehicle. You demanded that he get out of his vehicle. Members of your group also kicked the door panels of the other vehicle and smashed a window. Another vehicle in which further members of your group were travelling also stopped at the intersection. An occupant of this vehicle produced a pistol. He pointed the pistol at the occupant of the other vehicle and told him to get out of his vehicle or he would be shot.

[4]    When the traffic lights changed to green, you and your associates re-entered your respective vehicles and drove away. Your fingerprint was subsequently discovered on the victim’s vehicle and the incident was also captured on CCTV.

[5]    The summary records that the incident did not result in the victim suffering any physical injury. However, he has experienced psychological injury in the form of

1      Crimes Act 1961, s 196.

trauma and fear and this has had ongoing consequences for him. He also knows that he may well have suffered serious physical injury had he not remained within his vehicle.

Starting point

[6]    The aggravating feature of your offending is that you were a member of a group of persons who confronted and threatened an innocent motorist. The fact that you were not happy with the way he was driving is not a matter that reduces the culpability of the offending in any way. It does not begin to justify conduct of the type that occurred here. There was also a group or gang element to the offending. Further, your group caused damage to the victim’s vehicle and this required considerable expense on his part to repair. The victim was also obviously at serious risk of physical violence if he had complied with your group’s demand that he get out of his vehicle. As I have already observed, the incident has also caused the victim ongoing psychological harm.

[7]    Taking these factors into account I regard the offending as falling towards the mid to upper end in terms of culpability for the offence of common assault. This assessment takes into account the fact that you were not directly involved in the threats that members of your group directed at the victim or in the damage inflicted on the vehicle. I therefore propose to adopt a starting point of eight months imprisonment.

Aggravating factors

[8]    You have no previous convictions so there will be no uplift for aggravating factors personal to you.

Mitigating factors

[9]    Your guilty plea comes at a relatively early stage. The Crown accepts that you are entitled to a full discount for your plea. I would therefore make an allowance of two months, or 25 per cent, to reflect your guilty plea. This reduces the sentence to one of six months imprisonment.

[10]   I have already noted that you have no previous convictions. You told the writer of the pre-sentence report that you did not know much about gangs until you attended secondary school. You felt pressured to join a gang as a 16-year-old and since then

you say that you have been trying to find ways to avoid becoming entrenched in a gang lifestyle. I propose to reduce the sentence by a further month or approximately 15 per cent to reflect previous good character, your youth and other mitigating factors. This produces a sentence of five months imprisonment.

[11]   I decline to reduce the sentence further to reflect the fact that you have been on EM bail since 5 February 2024. You were originally on ordinary bail on the present charge and you were only remanded on EM bail after you were charged with other offences for which you are awaiting trial in the District Court. If you are convicted on those charges, it may well be that you will get some credit for the time spent on EM bail.

Home detention

[12]   Your lack of previous convictions, together with your rehabilitative prospects and the manner in which you have responded to the grant of EM bail, suggest that a sentence of home detention is the appropriate outcome. I am obliged to take into account the fact that you have already spent three months in prison. This means that the sentence of imprisonment that must be converted to a sentence of home detention is one of two months. I therefore convert that sentence to a sentence of one month home detention. This will be served at the address where you are currently residing on EM bail.

Sentence

[13]   So if you could now stand, Mr Lavemai. You are sentenced to one month home detention to be served at your current address. You will serve the sentence on the special conditions set out at page 6 of the pre-sentence report.

[14]Stand down.

Lang J