R v Lavemai

[2014] NZHC 797

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-092-013557 [2014] NZHC 797

THE QUEEN

v

KAVEINGA HELOTU LAVEMAI

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 and inhaled a great deal of blood and this, combined with the swelling caused by his injuries,  would  have  obstructed  his  airways  and  ultimately prevented  him  from breathing.  The pathologist considers that Mr Lees would have lived for at least 30 minutes after the attack, but it could have been longer.

Victim impact statements

[6]      I have read the heart-rending victim impact statements provided by Mr Lees’ two brothers, sister and son and we have heard two of them read out in Court this morning.   They all describe Mr Lees as a very gentle, kind and generous person. They are devastated that his life was cruelly taken in such an unprovoked and vicious attack.

Pre-sentence report

[7]      I have read the pre-sentence report.   It makes sad reading.   You are now

29 years of age.  Your mother died when you were only seven.  It appears that you had very little to do with your father’s family.  After your mother died, you and your five siblings moved from one foster home to another, sometimes together, sometimes not.  You received limited schooling.  After leaving school you became the principal provider for the family.   You and your siblings ended up in the custody of your father.  You report that you received regular beatings from your father who abused alcohol and spent considerable periods in prison.  You were disadvantaged in being raised in an environment where excessive alcohol consumption and violence were the norm.  Regrettably, you continued that lifestyle.

[8]      The probation officer reports that you do not suffer from any physical or mental health issues and there is no reason why you should not be able to serve the lengthy term of imprisonment that I must impose on you.

[9]      You  have  relatively  few  previous  convictions,  mostly relating  to  driving offences.   Nevertheless, the probation officer assesses you as having a medium to high risk of reoffending because of your abuse of drugs, including alcohol and methamphetamine.   You have now recognised that you need help to address this problem.

Purposes and principles of sentencing

[10]     In sentencing you today I must have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002.  I must hold you accountable for the harm you have caused and I must promote in you a sense of responsibility for that harm.  I must denounce your conduct and deter you and others from committing this type of offending.   I must also consider the need to protect the community and to provide for interests of the victims of your offending.  I am also obliged to take into account your personal, family, and cultural background.  I must also impose the least restrictive outcome appropriate in the circumstances and consider your rehabilitation and reintegration into society when you are eventually released.  So far as possible, I must impose a sentence that is consistent with sentences imposed in other similar cases.

Life imprisonment

[11]     Because you have been convicted of murder, I am required to sentence you to life imprisonment unless it would be manifestly unjust to do so.1     There is no suggestion that such a sentence would be manifestly unjust and I must accordingly impose a sentence of life imprisonment.

Minimum period of imprisonment

[12]     Because I have sentenced you to life imprisonment for murder, I must impose a minimum period of imprisonment of at least ten years.2

1      Section 102.

2      Section 103(2).

[13]     Section   104   of   the   Sentencing  Act   requires   a   minimum   period   of imprisonment of at least 17 years in certain circumstances, unless such a sentence would be manifestly unjust.

[14]     The Crown submits that your offending comes within s 104 of the Act for one or more of the following reasons:

(a)      Your offending involved unlawful entrance into a dwelling-house because, even though Mr Lees invited you into his sleep-out, you entered the property intending to steal property;

(b)Your  offending  was  committed  in  the  course  of  another  serious offence, being robbery;

(c)       Your offending was particularly brutal and callous;  and

(d)      Mr Lees was particularly vulnerable.

[15]     If any one of these factors applies in your case, I am required to impose a minimum period of imprisonment of at least 17 years, unless it would be manifestly unjust to do so.

[16]     Your counsel accepts the Crown’s submission that your offending falls within s 104 of the Act because Mr Lees was vulnerable and your offending was brutal. Your  counsel  also  accepts  that  it  would  not  be  manifestly  unjust  to  impose  a minimum period of 17 years imprisonment in your case.

[17]     I am satisfied that your offending comes within s 104 of the Act.  Mr Lees was a 55 year old man who weighed 102 kilograms.   He received medication at about 11am which would have made him drowsy and he probably slept for most of the day.   However, at the time you first attacked him, I would not characterise Mr Lees as a particularly vulnerable person.   Once you had knocked him down, Mr Lees  was  defenceless  and  unable  to  offer  any  resistance  to  your  continued punches to his head and neck.   By then, he was clearly vulnerable, but I do not consider that this engages s 104 of the Act.

[18]     Rather,  I  consider  that  this  murder  was  committed  with  a  high  level  of brutality and callousness because you continued to punch Mr Lees with the extreme force  required to cause  his  extensive  injuries  while  he  lay  unconscious  and defenceless on the couch.  Your attack was particularly brutal as is clear from the nature and extent of the injuries you inflicted against a defenceless victim.  It was also callous.  You did not do anything to assist Mr Lees even though you could see that he was struggling for breath.  You told others that you had enjoyed punching

him and had found it thrilling.3  That is why you persisted.

[19]     In any event, even if Mr Lees was vulnerable, it would be wrong, as the Crown accepts, to double count vulnerability and brutality.  They are two sides of the same coin in the circumstances of this case.

[20]     I consider that Mr Lees’ murder was committed in the course of another serious offence, namely robbery.  Although you were not charged with robbery, you were convicted of theft.  There is no doubt that you committed this murder in the course of carrying out a robbery which simply means theft accompanied by violence

or threats of violence.4   Robbery is a serious offence for the purposes of s 104; it is

punishable by up to ten years’ imprisonment.5   This is a further factor bringing your offending within s 104 of the Act.

[21]     Having concluded that s 104 applies, I must now consider what would be the appropriate  minimum  period  of  imprisonment  by comparing  your  case  to  other cases.  I have considered the cases referred to by the Crown6 and by your counsel.7

I have also considered a number of other cases and I will provide a reference to these

cases in a footnote to my sentencing notes when they are released.8   Having regard to

3      See Frost v R [2008] NZCA 406 at [35]-[37].

4      Crimes Act 1961, s 243(1).

5      R v Yu HC Auckland CRI-2010-404-9725, 15 December 2011; Churchward v R [2011] NZCA

531, (2011) 25 CRNZ 446 at [59(c)].

6      R v Williams [2005] 2 NZLR 506 (CA); R v Ah You [2012] NZHC 42; R v Skilling, R [2011] NZCA 462; R v Namana [2001] 2 NZLR 448 (HC); R v Berry HC Auckland CRI-2010-092-

2165; 7 December 2010; R v Rangiwhaiao [2012] NZHC 1751; R v Sullivan HC Wellington

CRI-2009-485-86, 10 February 2010.

7      Reekers v R [2011] NZCA 383; Baker v R [2007] NZCA 277; R v Tamaka [2014] NZHC 182.

8      Dawood v R [2013] NZCA 381; Hamidzadeh v R [2013] NZCA550, [2013] 1 NZLR 369; Reid v R [2009] NZCA 281; Shepherd v R [2008] NZCA 17, Tuporo v R [2008] NZCA 22; McSweeney v R [2007] NZCA 147; Uluakiola v R CA123/06, 6 December 2006; Green v R CA46/05, 2 June

2005; R v Slade [2005] 2 NZLR 526 (CA); R v Khan CA470/04, 2 June 2005; Green v R

these other cases, I consider that the appropriate minimum period of imprisonment in

this case is a term of 17 years’ imprisonment.

[22]     Even  if,  contrary to  my  assessment,  the  appropriate  minimum  period  of imprisonment  would  have  been  less  than  17  years  imprisonment  without  the operation of s 104 of the Act, I would still be obliged to impose a minimum period of

17  years  imprisonment  unless  this  would  be  manifestly  unjust.9      Your  counsel

accepts that it would not be manifestly unjust to impose a minimum period of imprisonment of 17 years in your case.  I agree.

Sentence

[23]     Mr Lavemai, please stand.  On the charge of murder, I sentence you to life imprisonment and order you to serve a minimum period imprisonment of 17 years. On  the  charge  of  theft,  I  sentence  you  to  nine  months’ imprisonment.    These

sentences are to be served concurrently.  Please stand down.

M.A. Gilbert J

CA46/05.

9      R v Williams, above n 6, at [67]-[68].