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…

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 Lavemai

Details

AGLC: R v Lavemai [2024] NZHC 835
Case: [2024] NZHC 835
Decision Date: 17 April 2024

CaseChat Overview and Summary

In the case of The King v Lavemai, the defendant, Mr Lavemai, appeared before the High Court of New Zealand Auckland Registry to be sentenced for a charge of common assault. The case arose from an incident where Mr Lavemai and his associates accosted a motorist, causing him psychological trauma and fear, though no physical injuries were reported. The court was tasked with determining an appropriate sentence that reflected the seriousness of the assault and the circumstances surrounding it.

The central legal issues before the court were the assessment of the culpability of the offence and the determination of an appropriate sentence, taking into account the aggravating and mitigating factors. The court considered the nature of the assault, the involvement of a group or gang element, the lack of physical injury to the victim, and the psychological impact. Additionally, the court examined the defendant’s criminal history, his early guilty plea, his youth, and his efforts to distance himself from gang activity as mitigating factors.

The court determined that the culpability of the offence fell towards the mid to upper end due to the group confrontation and the threat of violence. The starting point for sentencing was set at eight months imprisonment. However, after applying a two-month discount for the early guilty plea and a one-month reduction for the defendant's good character and youth, the sentence was reduced to five months imprisonment. The court further converted two months of this sentence to one month of home detention, considering the defendant's lack of previous convictions and his response to electronic monitoring bail. The court imposed one month of home detention, to be served at the defendant’s current address, under specific conditions.

Mr Lavemai was sentenced to one month of home detention, to be served at his current address, with conditions as outlined in the pre-sentence report. The court concluded the sentencing remarks by instructing Mr Lavemai to stand down.

Orders