R v Vagaia
[2018] NZHC 1225
•29 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-003403
[2018] NZHC 1225
THE QUEEN v
MOE JIM VAGAIA AND
JASON NASERI
Hearing: 29 May 2018 Appearances:
B Smith for Crown
M Mason for Defendant Vagaia P Heaslip for Defendant Naseri
Judgment:
29 May 2018
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Manukau Counsel: P Heaslip, Auckland
M Mason, Pukekohe
R v VAGAIA & NASERI [2018] NZHC 1225 [29 May 2018]
[1] Mr Vagaia and Mr Naseri, you may remain seated. I will tell you when you need to stand. What I propose to do is to talk about the background to the offending that I have to sentence you in relation to today, and then I will deal specifically with your case Mr Vagaia, and then you can stand down, and then Mr Naseri I will deal with you.
[2] Mr Vagaia and Mr Naseri you are for sentence this morning on a variety of charges arising out of two serious aggravated robberies that occurred early last year.
[3] Mr Vagaia you are for sentence on two charges of aggravated robbery, threatening to kill, unlawfully taking a motor vehicle, contravening a requirement of an enforcement officer to stop, reckless driving, using a firearm against a constable, possession of a Class C controlled drug, possession of ammunition, possession of a restricted weapon, and possession of explosive without lawful, proper or sufficient purpose. In your case Mr Naseri you are for sentence in relation to one charge of aggravated robbery.
[4] I take the following summary of the offending from the agreed statement of facts.
First aggravated robbery
[5] On 3 and 4 January 2017 Mr Vagaia you and Mr Armstrong texted each other and arranged to rob the complainants using a firearm, describing it in text messages as “being out collecting” and “all strapped up”. Mr Vagaia, you were armed with a firearm. Mr Armstrong was armed with a black handled knife. Mr Naseri, you were not armed and you were not involved in the planning of the robbery, but you were with Mr Vagaia and Mr Armstrong. At about 3.45 pm in the afternoon you all arrived at the complainants’ home. You knocked on the door and a short time later entered the home calling out for Mr Tupou. Mr Tupou, who had been in the bathroom, approached Mr Armstrong who was standing in the corridor. Mr Armstrong told Mr Tupou to go and see the guy in the lounge. On entering the lounge Mr Tupou saw you Mr Vagaia. You were holding a short black firearm with a clear magazine, with the bullets visible it. You demanded 5K for a debt. Mr Tupou told you he did not have $5,000 and said to take his television instead. Mr Armstrong and you Mr Naseri took the television.
Mr Vagaia you then directed Mr Armstrong and Mr Naseri to search the rooms and take anything of value. Mr Vagaia you also took Mr Tupou’s mobile phone.
[6] You then threatened Mr Tupou that if he did not contact you and pay the money you had demanded you would take Jani Tupou and kill her and kill each member of the family. While you were pulling out the battery for the telephone landline handset you accidentally discharged the firearm. The police later found the fired bullet embedded in the ground under the lounge floor.
Second aggravated robbery
[7] The second charge of aggravated robbery relates to an incident on 19 March 2017. Again Mr Vagaia you and another offender, but not Mr Naseri, arranged to rob the complainants using a firearm. You discussed the property you intended to take. Mr Vagaia you again armed yourself with a firearm with the transparent plastic magazine. When you entered the house via the front door the complainant Mr Moore armed himself with a knife in the kitchen. You followed him and raised the firearm directly at his face yelling at him to drop it. You demanded the complainants’ jewellery, money and car keys as well as his wallet. During this incident Mr Moore’s partner Ms Li, and her mother and children were also in the house. The mother of Mr Moore’s partner took the children to a bedroom. They remained in that bedroom throughout the incident. Mr Vagaia, you removed an amount of cash from the wallet, leaving the wallet behind. During this time the kitchen, lounge and main bedroom was searched for other property which was taken. You then took the BMW car belonging to Ms Li. Before leaving you threatened the complainants again. A variety of property was taken in the course of the robbery, including $2,000 in cash that Ms Li’s mother had brought with her for her visit, an Apple iPad, laptop and cell phones.
[8] Later in the morning of the next day, Mr Vagaia you were in the BMW car. You came to the attention of police. You failed to stop when required to do so and ultimately crashed the car. When approached by police you confronted the policeman with a firearm. A search of the crashed car located a passport, cannabis material, digital scales and a rifle round. When arrested two days later you were found in possession of a sawn-off .22 firearm which had a transparent magazine. It was loaded
with ammunition. A round of ammunition was also found in your pockets of your clothes.
[9] Mr Vagaia I propose to sentence you first. In sentencing you I am required to take account of the purposes and principles of the Sentencing Act 2002. In your case the particularly relevant factors are to hold you accountable for your role in violent offending such as these aggravated robberies involving home invasion and the impact that has on the community; and also to promote in you a sense of responsibility for and acknowledgement of that harm.
[10] It is important to denounce violent offending and so far as possible to deter you and others from committing similar offending. There is also a need to protect the community from people who commit violent offending such as this. In imposing the sentence the Court is also required to take into account the gravity of the offending which is reflected in the maximum penalty for this offending in each case of the aggravated robberies of 14 years’ imprisonment. The Court is also required to take into account the need for consistency with sentencing levels in similar cases.1
[11] The Crown has argued that taking the first charge of aggravated robbery as the lead offence a start point of nine years for your culpability and involvement in that is appropriate and an uplift of five years for totality to reflect the second aggravated robbery and the various other associated charges. The Crown has also submitted there should be a further uplift of one year for your previous convictions and the fact the offending occurred while you were subject to parole.
[12] Ms Mason has submitted the start point for the lead charge of the first aggravated robbery should be seven to eight years with an uplift of no more than three years when applying the totality principle. She has argued for a full discount of 25 per cent for your guilty plea, even though it was entered late, because of a late disclosure in relation to DNA found on a shoe in the BMW car after the crash and the difficulty she had in taking instructions following a pre-trial ruling.
1 Mako v R [2000] 2 NZLR 170 (CA); Tiori v R [2011] NZCA 355; Carpenter v R [2013] NZCA 395; Apiata v R [2013] NZCA 227; and Namana v R [2013] NZCA 640.
[13] Mr Vagaia your second-strike status means you must serve the sentence the Court imposes without parole. In those circumstances I consider it would be double- counting, and to penalise you twice, to impose an uplift for your previous offending. It is effectively taken account of with the strike warning and the impact of the strike sentence. I do not propose to impose any uplift for your previous offending.
[14] Mr Vagaia I take as a start point for the first aggravated robbery, including the threat to kill during the course of it, of eight and three-quarter years. This was serious offending. You invaded someone’s home armed with a weapon and threatened to kill them. The weapon was loaded. You discharged a bullet during the course of the incident, albeit by accident. That is hardly mitigating. Your culpability in this was high. You and Mr Armstrong played lead roles in the first aggravated robbery.
[15] An uplift is required for the second aggravated robbery within a very short period of time and the other associated offences that I have referred to, a number of which are serious in themselves. An uplift of a further five years would reflect that other offending taking into account totality. That would lead to an adjusted starting point of 13 years and nine months. As noted I have declined to impose any further uplifts for your past offending bearing in mind that you will have to serve the end sentence without parole.
[16] Another issue arises because you must serve your sentence without parole. Ms Mason has submitted that in addition to not imposing an uplift for previous offending the start point should be adjusted to take account of the fact that you will be serving that sentence without parole. The effect of the Court of Appeal decision in Barnes is that while generally sentencing takes place without consideration of parole eligibility, s 8(h) of the Sentencing Act 2002 can apply in certain cases.2 The Court must take into account any particular circumstances of an offender that mean an otherwise available sentence would be disproportionately severe. The circumstances of the stage 1 offence will be particularly relevant. In your case Mr Vagaia, your stage 1 warning was imposed for another two charges of aggravated robbery at that time. I have seen the summary of facts relating to those and note you were sentenced to six
2 Barnes v R [2018] NZCA 42.
years’ imprisonment for that offending which was serious offending in itself. Unfortunately you also have a lengthy history of other violent offending. The Court has to acknowledge that Parliament passed the three-strikes law to respond to offending of this nature. So while I have regard to Barnes and Ms Mason’s submissions, in your case Mr Vagaia, I am satisfied yours is not the exceptional case referred to in Barnes, which would support a reduced uplift for totality, at least insofar as the sentence must take account of the current offending of two aggravated robberies and using the firearm against a constable, which are all in themselves, strike offences. I do however accept that the fact you will serve the sentence without parole is relevant in relation to the other charges when considering the uplift, where those other charges are not strike offences. You would normally be entitled to parole after one-third or one-half of those sentences and I adjust the starting point down by six months to take account of that feature of the other charges you are facing and you are for sentence on.
[17] Finally I note that if this was not a second-strike sentence, in your case I would have imposed a minimum non-parole period of two-thirds.
[18]I then turn to personal mitigating factors.
[19] As counsel has acknowledged the pre-sentence report for you is not a positive report. You have never been involved in what can be described as pro-social activities nor employed in any lawful activity. You are assessed as having anti-social behaviour and are not presently motivated to make long-term changes. The report writer says you lack insight into how your offending has affected others.
[20] Ms Mason has argued for a reduction for your personal circumstances. She has had contact with you over a number of years. She has told the Court that you are an intelligent man but that you have lacked support when you have been released from prison and that you are motivated to do rehabilitation programmes, but there have been no relevant programmes offered to you. Ms Mason emphasises you have potential and are an intelligent person. Mr Vagaia, I take those submissions into account as much as I can and allow a discount for personal circumstances of three months.
[21] I also accept Ms Mason’s submissions that despite the fact your guilty plea was entered late, in relation to that discount you are to be given the full discount of 25 per cent approximately.
[22] I accept that the DNA results were advised late in the piece, 17 April 2018, which confirmed your DNA at the car and identification evidence was ruled admissible in a lengthy judgment delivered on 22 March 2018.3
[23] Mr Vagaia please stand. On each charge of aggravated robbery you are sentenced to imprisonment for nine years, nine months. The sentences are concurrent. On the charges of threatening to kill, unlawfully taking a motor vehicle, using a firearm against a constable, possession of ammunition, possession of a restricted weapon and possession of explosive you are sentenced to imprisonment for one year. In each case the sentence is concurrent. On the charges of contravening a requirement of an officer to stop, reckless driving, possession of a Class C controlled drug, you are convicted and discharged. The effective sentence is nine years, nine months’ imprisonment. You are to serve that sentence without parole. Stand down.
[24] Mr Naseri I turn to you. As is the case of Mr Vagaia, in sentencing you I am required to take account of the purposes and principles of the Sentencing Act 2002. In your case, in addition to the factors I have identified in relation to Mr Vagaia’s case, there is also the issue of rehabilitation, which in your case is more immediate than that of Mr Vagaia. I also see a major distinction between your position and that of Mr Vagaia. First, you were only involved in the one robbery. Second, I accept your involvement and role in that robbery was limited. Your culpability was much less than either Mr Vagaia or, on the summary of facts, Mr Armstrong. Nevertheless you were inside the home with Mr Vagaia and Mr Armstrong, and Mr Vagaia was armed with a gun which was loaded and which was discharged. You assisted them in the course of the armed robbery by your presence and by moving items of property from the home. The appropriate starting point is, as I have said previously, six years, nine months for that involvement in that offending. I uplift that by six months for your previous violent
3 R v Armstrong & Anor [2018] NZHC 504.
offending and to reflect the fact that you committed this offending while you were on bail.
[25] I turn to your personal mitigating circumstances. Mr Naseri, in contrast to Mr Vagaia, as counsel has said, you have a very positive pre-sentence report. The pre- sentence report confirms that you have a supportive family and I acknowledge them. You strongly identify with your strong Samoan culture. You are in a long-term relationship and have a child which you say is going to make a major impact on how you lead your life from now. It is easy to make those comments Mr Naseri. I have to say that your letters, both to me and to the victims of the offending, display insight into your offending and I acknowledge that. I also acknowledge that you have the support of people in the community apart from your family. That support will be crucial to your rehabilitation in the future and you are fortunate to have that support.
[26] The probation officer assesses your risk of harm as moderate but as I have said importantly you have received a positive report from the supervising probation officer who confirms there are no issues of concerns with you or your family during previous contact with you. It is extremely unfortunate that you have let yourself and your family down by allowing yourself to become involved in the aggravated robbery in the way you did.
[27] Taking account of your positive pre-sentence report and the matters noted in that, I accept counsel’s submission that further deductions are available to you, particularly for remorse and the other positive features I have referred to.
[28] For those positive factors I reduce the starting point by nine months. I also reduce the sentence by a further three months for the restrictive terms of the EM bail conditions that you have been on since 31 January this year. That reduces the starting point for your sentence to six years, three months. Applying the full 25 per cent discount leads to an end sentence of four years, eight months. Given the positive features I have referred to I decline to impose a minimum non-parole period.
[29] Mr Naseri please stand. For your role in the aggravated robbery you are sentenced to imprisonment for four years, eight months. Stand down.
Venning J
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