Hearing: 16 April 2014

Appearances:

A McClintock and C Paterson for the Crown
K A Stoikoff and H Retzlaff for the Prisoner

Judgment:

16 April 2014

SENTENCING NOTES OF GILBERT J

R v LAVEMAI [2014] NZHC 797 [16 April 2014]

Introduction

[1] Mr Lavemai, you have been convicted following trial of one charge of murder and one charge of theft. The maximum penalty for murder is life imprisonment. The maximum penalty for theft is 12 months imprisonment.

Facts

[2] On 11 October 2012, you spent most of the day drinking alcohol. There is some suggestion that you were also using methamphetamine but you cannot recall this. You were under pressure to pay a debt you owed for the supply of drugs. At about 6pm that day you went to your neighbour’s property intending to steal something which you could then offer in part payment of the debt. The victim, Mr Lees, was staying temporarily at this address with two of his friends although they were not present at the time. Mr Lees came to the door when you arrived. He was polite and invited you in. Without warning, and without any provocation on Mr Lees’ part, you punched him almost immediately upon entering the premises. You landed Mr Lees on the couch with your first punch. He was soon knocked unconscious and was unable to defend himself or offer any resistance as you continued to punch him repeatedly on the head and neck.

[3] You left Mr Lees in a slouched position on the couch, struggling for breath, as you unplugged the stereo and took those components and a PlayStation back to your house. Despite returning several times for this purpose, you made no attempt to assist Mr Lees or seek assistance for him. When his friends arrived back the following morning they found Mr Lees dead on the couch where you had left him. This was obviously a shocking and deeply troubling experience for them.

[4] You told one of your friends the following morning that you had “punched and punched and punched” and that you had “wanted to stop but couldn’t”. You said that there was a voice telling you to “just punch, don’t stop, just carry on”. You told another person that “after a while you started enjoying it” and you “wanted to just keep punching and punching and punching him” because it gave you a “thrill”. It is clear from the pathologist’s evidence that you inflicted a minimum of eight blows to Mr Lees’ head and a minimum of three blows to his neck.

[5] Mr Lees sustained a subdural haemorrhage and multiple fractures to the left and right side of his face which are likely to have caused significant internal bleeding. The pathologist considered that Mr Lees would have been unable to lift his head, probably because he was knocked unconscious. He would have swallowed…

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 [2014] NZHC 797
Case: [2014] NZHC 797
Decision Date: 16 April 2014

CaseChat Overview and Summary

Mr Lavemai was convicted of murder and theft following a trial. The murder was committed by Mr Lavemai punching Mr Lees, who was staying at his neighbour's property, without warning or provocation. Mr Lavemai continued to punch Mr Lees repeatedly on the head and neck until he was knocked unconscious. Mr Lavemai then stole items from the property and left Mr Lees on the couch where he was found dead the next morning. The court was required to determine whether the murder was committed with a high level of brutality and callousness and whether the appropriate minimum period of imprisonment was 17 years.

The court found that Mr Lavemai's offending was committed with a high level of brutality and callousness because he continued to punch Mr Lees with extreme force while he lay unconscious and defenceless on the couch. The attack was particularly brutal as is clear from the nature and extent of the injuries inflicted against a defenceless victim. The court also found that the murder was committed in the course of another serious offence, namely robbery. The court considered a number of other cases and found that the appropriate minimum period of imprisonment in this case was a term of 17 years' imprisonment. The court sentenced Mr Lavemai to life imprisonment with a minimum period of 17 years on the charge of murder and nine months' imprisonment on the charge of theft, to be served concurrently.

The final orders of the court were that Mr Lavemai be sentenced to life imprisonment and order him to serve a minimum period of 17 years on the charge of murder and nine months' imprisonment on the charge of theft, to be served concurrently. The sentences were to be served concurrently.

Orders