R v Vagaia - [2018] NZHC 1225

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…

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 Vagaia

Details

AGLC: R v Vagaia [2018] NZHC 1225
Case: [2018] NZHC 1225
Decision Date: 29 May 2018

CaseChat Overview and Summary

The case of R v Vagaia and Naseri involved the sentencing of Moe Jim Vagaia and Jason Naseri for their roles in two serious aggravated robberies. Vagaia was found guilty of multiple charges including aggravated robbery, threatening to kill, and possession of firearms and ammunition, while Naseri was convicted for his involvement in one of the robberies. The court was tasked with determining appropriate sentences that reflected the seriousness of the crimes, the principles of the Sentencing Act 2002, and the individual circumstances of the defendants.

The primary legal issues included the determination of an appropriate starting point for the sentences, the application of the totality principle, the impact of the defendants' previous convictions, and the consideration of mitigating factors. The court had to balance the need for accountability, deterrence, and community protection against the individual circumstances of the offenders, including their personal backgrounds and the potential for rehabilitation.

The court began by considering Vagaia's culpability and the gravity of his offences, starting with an eight and three-quarter year sentence for the first aggravated robbery. An additional uplift of five years was applied for the second aggravated robbery and other associated offences. The court declined to further increase the sentence for Vagaia's previous convictions, noting his second-strike status which required him to serve his sentence without parole. After considering mitigating factors such as Vagaia's late guilty plea and personal circumstances, the court sentenced him to nine years and nine months imprisonment, to be served without parole.

For Naseri, the court applied a lower starting point due to his lesser involvement in the offences. After considering his positive pre-sentence report, showing strong family support and insight into his offending, the court reduced the sentence by nine months for positive factors and another three months for restrictive bail conditions. Naseri was sentenced to four years and eight months imprisonment, with no minimum non-parole period imposed.

In conclusion, the court issued its final orders, sentencing Vagaia to nine years and nine months imprisonment without parole and Naseri to four years and eight months imprisonment. The sentences reflected the seriousness of the offences, the defendants' roles, and their individual circumstances, aiming to achieve justice while considering the broader principles of sentencing.

Orders