Vaeafisi v R - [2017] NZCA 545

IN THE COURT OF APPEAL OF NEW ZEALAND

CA349/2017
[2017] NZCA 545

BETWEEN	AKOSITA VAEAFISI Appellant
AND	THE QUEEN Respondent

Hearing:	13 November 2017
Court:	Harrison, Lang and Ellis JJ
Counsel:	N P Chisnall for Appellant JEL Carruthers for Respondent
Judgment:	24 November 2017 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Akosita Vaeafisi pleaded guilty in the District Court at Manukau to six charges of aggravated robbery and one charge of burglary. On 14 June 2017 Judge Andrée Wiltens sentenced Ms Vaeafisi to six years and nine months’ imprisonment on all charges.[1]
[1]R v Waitai [2017] NZDC 12651.
Ms Vaeafisi appeals against sentence. She does not contend the end sentence was manifestly excessive having regard to her overall culpability. Rather, she argues that it needs to be reduced further to achieve parity with a sentence of five years and six months’ imprisonment that was imposed on her sister and co-offender, Alavinya Vaeafisi (referred to by her first name in this judgment ).[2]

The charges

[2]R v Kirk [2017] NZHC 673 at [87].

The charges were laid after the police established that Alavinya and Ms Vaeafisi had planned and executed a series of aggravated robberies in South Auckland between 10 February and 16 March 2015. They arranged for other members of their family to participate in these activities. The offending involved the robbery of occupants of private dwellings, together with street robberies and the robbery of dairies and a takeaway shop. In each case several members of the group would carry out the robbery whilst others would act as lookouts or getaway drivers.
In total, the group committed eight separate aggravated robberies, one attempted aggravated robbery, a burglary and theft. All of the group shared in the proceeds of the offending. This generally comprised cigarettes and small quantities of cash. The exception was the robbery of a dairy in which cash, cigarettes and a cellphone to a total value of approximately $10,000 were taken.

The procedural background to the appeal

To understand properly the issues raised by the appeal, it is necessary to have regard to its procedural background. This relates to the sentences imposed on Alavinya and Ms Vaeafisi.

Alavinya’s original sentence

Like Ms Vaeafisi, Alavinya planned and coordinated the robberies. On occasions she provided advice by cellphone whilst the offending was in progress, and she also acted as a lookout and getaway driver in two of the robberies.
Alavinya pleaded guilty after accepting a sentence indication given by Judge McNaughton in the District Court. The Judge took a starting point of seven years’ imprisonment on the lead offence, and then increased that to ten years’ imprisonment to reflect the totality of the offending. He considered Alavinya’s reduced physical role in the offending warranted a reduction of one year from the starting point, but offset that by an uplift of the same amount to reflect the fact that Alavinya had three previous convictions…

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 Vaeafisi v R

Details

AGLC: Vaeafisi v R [2017] NZCA 545
Case: [2017] NZCA 545
Decision Date: 24 November 2017 at 2.30 pm

CaseChat Overview and Summary

Akosita Vaeafisi appealed against the sentence imposed on her for aggravated robbery and burglary charges, arguing that the sentence of six years and nine months' imprisonment should be reduced to match the sentence of five years and six months' imprisonment given to her co-offender, Alavinya Vaeafisi. The appeal was dismissed by the Court of Appeal, which found that the sentence was appropriate given the circumstances of the case.

The Court of Appeal was required to determine whether the sentence imposed on Ms Vaeafisi was too high compared to the sentence imposed on her co-offender, Alavinya Vaeafisi. The Court found that the sentence was appropriate and dismissed the appeal.

The Court of Appeal considered that the sentence imposed on Ms Vaeafisi was appropriate because the starting point of 13 years' imprisonment was correctly applied, and the sentence was reduced by 35% to reflect her guilty plea and lack of previous convictions, and by 12.5% to reflect late guilty pleas. The Court also found that the difference in the sentences was explicable in large part due to the greater discount Alavinya received for her earlier guilty pleas. The Court of Appeal concluded that the difference in sentences did not call into question the integrity of the administration of justice.

The appeal against sentence is dismissed.

Orders