The Queen v Vaipo - [2009] NZCA 206

IN THE COURT OF APPEAL OF NEW ZEALAND
CA47/2009
[2009] NZCA 206
THE QUEEN
v
JIM KEN VAIPO
Hearing:22 April 2009

Court:O'Regan, Hugh Williams and MacKenzie JJ
Counsel:M E Mann for Appellant

S B Edwards for Crown

Judgment:25 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
REASONS OF THE COURT
(Given by Hugh Williams J)
Introduction
[1]       Following trial in the Manukau District Court the appellant, Mr Vaipo, and a co-accused, Mr Alfred Mata, were each convicted on one count of aggravated robbery of a Mr Lui in his Manurewa takeaway bar on 14 March 2007.
[2]       Mr Viapo has appealed to this Court against the sentence of four years imprisonment imposed on him by the trial Judge, Judge Wade, on 19 December 2008 on the ground that the sentence is manifestly excessive.
Facts
[3]       The facts as described by Judge Wade were that on the evening of 14 March 2007 the two appellants and a brother of Mr Alfred Mata, Mr Alex Mata, hatched a plan to rob a takeaway bar situated near the Mata home. Both the Messrs Mata were regular patrons and were known to the proprietor.
[4]       After waiting outside until other customers left, the three entered. Mr Alex Mata jumped over the counter and punched the proprietor in the face, knocking him to the ground, causing significant bruising. Mr Alfred Mata then jumped over the counter, knocked the cash register to the ground and took about $100 from it. Mr Vaipo stayed on the customers’ side of the counter but shouted out words such as “take the money”. The three then decamped and later shared the proceeds.
Sentencing remarks
[5]       After reviewing the appellants’ personal circumstances, including their previous conviction histories, the Judge discussed as an aggravating feature for Mr Alfred Mata the fact he had committed a second robbery whilst on bail but had pleaded guilty to that offence shortly before sentencing.
[6]       After reviewing the circumstances of that offence, the Judge noted his task was made “somewhat easier” because Mr Alex Mata pleaded guilty to the robbery of the takeaway bar at an earlier stage and had been sentenced by another Judge to three and a half years imprisonment from a starting point of five and a half years imprisonment. The reduction was to recognise both the guilty plea and Mr Alex Mata’s preparedness to give evidence against his co-offenders.
[7]       The Judge then reviewed the position of those being sentenced that day. The Judge held that Mr Alex Mata had taken the leading role in the offending and had been the one who had inflicted personal violence. In relation to Mr Vaipo he noted that, when delivering its verdict, the jury had spontaneously added a rider that “although we feel Vaipo is guilty we feel leniency should be shown”. The Judge interpreted that rider as being the jury’s view that Mr Vaipo had played a lesser role because he was not physically involved either in…

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 The Queen v Vaipo

Details

AGLC: The Queen v Vaipo [2009] NZCA 206
Case: [2009] NZCA 206
Decision Date: 25 May 2009

CaseChat Overview and Summary

The appeal by Jim Ken Vaipo against his sentence of four years imprisonment for aggravated robbery was dismissed by the Court of Appeal of New Zealand. Vaipo and his co-accused, Alfred Mata, were convicted following a trial in the Manukau District Court for their roles in robbing a takeaway bar on 14 March 2007. Vaipo's primary contention was that the sentence imposed was manifestly excessive. The appellant argued that the sentence failed to appropriately weigh his lesser role in the offence, his age, supportive family circumstances, employment, remorse, offer of reparation, and the jury's rider indicating leniency should be shown.

The court considered the severity of the crime, the level of premeditation, and the significant personal violence used during the robbery. The appellant's previous conviction history was also noted, but so were his lesser involvement in the actual violence and theft, and the mitigating factors presented. The court found that, regardless of the starting point chosen by the trial judge, the sentence of four years imprisonment was not manifestly excessive given the nature of the crime and the mitigating factors considered. Consequently, the appeal was dismissed, affirming the trial judge's sentence.

Orders