Vainu v R - [2014] NZCA 375

IN THE COURT OF APPEAL OF NEW ZEALAND

CA761/2013
[2014] NZCA 375

BETWEEN	BENJAMIN VAINU Appellant
AND	THE QUEEN Respondent

Hearing:	29 July 2014
Court:	Harrison, Goddard and Andrews JJ
Counsel:	J E Juran for Appellant J M Jelas for Respondent
Judgment:	6 August 2014 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

B The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Andrews J)

Introduction

On 13 April 2010 a Nissan Cefiro motor vehicle was stolen from Panmure. On 14 April 2010 two Armourguard employees were collecting cash from the BNZ bank at Botany Town Centre. As they were entering the bank two men wearing light blue disposable overalls (including head covering and face masks) ran into the bank. One of the men was armed with a sawn-off single barrel pump action shotgun. The man grabbed a cash box carried by one of the Armourguard employees and fled the scene. The two men were seen getting into the Nissan Cefiro, which was driven by a third man wearing light blue overalls.
Mr Vainu was charged with unlawfully taking a motor vehicle and aggravated robbery. It was alleged that he was the driver of the Nissan. Sauleao Lavea and Sanerivi Tauaese were alleged to have been the two men who went into the bank. Mr Lavea and Sanerivi Tauaese were also charged in respect of another armed robbery, some two weeks later. After a trial in the Manukau District Court before Judge McNaughton and a jury, all three were found guilty and convicted on 12 August 2013 on all charges. On 11 October 2013 Mr Vainu was sentenced to eight years imprisonment, and ordered to serve a minimum period of imprisonment of four years.[1]
[1]R v Vainu DC Manukau CRI-2010-092-7225, 11 October 2013.
Mr Vainu has appealed against both his conviction and his sentence. He filed his notice of appeal three days out of time but, there being no objection to this short delay, we grant the application for an extension of time to appeal.

Appeal against conviction

Admissibility of identification evidence

Mr Vainu’s first ground of appeal is a challenge to a ruling given by Judge McNaughton during the trial, that identification evidence given by Sanerivi Tauaese’s brother, Tauaese Tauaese (Ese Tauaese) was admissible.[2]
[2]R v Tauaese DC Manukau CRI-2010-092-7225, 29 July 2013.
At a voir dire, Detective Sergeant Mariu gave evidence that he interviewed Ese Tauaese. He said that Sanerivi Tauaese and Sauleao Lavea had by then been arrested, but Mr Vainu was not a suspect at the time, and he had no reason to believe that Ese Tauaese knew anything about the offending. He hoped that Ese Tauaese would identify associates of his brother, that may lead to further Police inquiries.
Detective Sergeant Mariu first showed Ese Tauaese a booklet of photographs, prepared by another Police Officer, Detective Cleary, as an investigative tool to be shown only to associates…

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 Vainu v R

Details

AGLC: Vainu v R [2014] NZCA 375
Case: [2014] NZCA 375
Decision Date: 6 August 2014 at 12.30 pm

CaseChat Overview and Summary

The appellant, Benjamin Vainu, appealed against both his conviction and his sentence for unlawfully taking a motor vehicle and aggravated robbery. Vainu had been found guilty and sentenced to eight years imprisonment by the Manukau District Court. The Court of Appeal granted Vainu's application for an extension of time to appeal but dismissed both his appeal against conviction and his appeal against sentence. Vainu's grounds of appeal against conviction were that the identification evidence of Tauaese Tauaese was inadmissible, and that the Judge did not fairly set out Vainu's defence in his summing-up. The Court of Appeal found that the identification was reliable and that the Judge's summing-up was not erroneous. Vainu's appeal against sentence argued that the starting point of seven years imprisonment was too high, that the Judge erred in applying an uplift of 18 months for previous convictions, and in not allowing a discount for the period Vainu spent on electronic monitoring bail. The Court of Appeal found that the end sentence of eight years imprisonment was not manifestly excessive and dismissed the appeal against sentence.

No orders were made.

Orders