Lavulo v R [2016] NZCA 158 (29 April 2016)

Last Updated: 6 May 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA483/2015 [2016] NZCA 158
BETWEEN	VILIAMI LAVULO Appellant
AND	THE QUEEN Respondent

Hearing:	4 April 2016
Court:	Wild, Clifford and Brewer JJ
Counsel:	M English for Appellant K S Grau for Respondent
Judgment:	29 April 2016 at 2.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

[1] Mr Lavulo is serving a prison sentence of five years and nine months. It was imposed on him by Judge Bergseng in response to one charge of aggravated robbery, three charges of robbery and two charges of theft, to which Mr Lavulo had pleaded guilty.^[1] Mr Lavulo accepts the prison sentence but contends that the Judge should not have directed a minimum period of imprisonment (MPI) of 50 per cent. He seeks to appeal that part of his sentence.
[2] The appeal is brought some three months out of time. The delay is explained partly by reference to the fact Mr Lavulo was waiting to be sentenced on additional charges and partly by reference to difficulties faced by his counsel in obtaining instructions. We therefore grant Mr Lavulo’s application for an extension of time to bring his appeal.

Issue on appeal

[3] Mr Lavulo’s argument is that Judge Bergseng erred in imposing an MPI, or in the alternative that the MPI imposed was manifestly excessive. The Judge failed to give appropriate weight to his personal mitigating circumstances. Instead, it is submitted, the Judge gave inappropriatwe emphasis to holding Mr Lavulo accountable for the harm done by his offending, denouncing his conduct and seeking to protect the community from him.

Background

[4] Mr Lavulo is 28 years old. At the age of 13, he moved to Australia with his mother. At the age of 16, he was sentenced to six years’ imprisonment, with an MPI of three years and six months, for an offence relating to kidnapping. He served this sentence in a Juvenile Detention Centre, but four months were added to it for assault of another inmate. In 2009, within two years of his release, Mr Lavulo was convicted of a charge of “robbery in company” and was sentenced to four years’ imprisonment, with a three year MPI. He was deported to New Zealand in 2012.
[5] With that background in mind, we turn to consider the offending for which Mr Lavulo was sentenced by Judge Bergseng. The Judge set out the facts of the offending in some detail. We reproduce the account from the Judge’s sentencing notes because it gives the basis for the exercise of the discretion to impose an MPI:^[2]

[2] The summary of facts, which I will go through in some detail gives a clear picture of what was occurring. The first incident is from 6.45 am on 14 July 2014. This is a charge of robbery in respect of the Four Square store at Glenmall in Glen Eden. The complainant is Mr Patel. He was 64 at the time of this offending. He was working alone in the store. He is described as being of diminutive stature. You entered the shop. You walked behind the shop’s Lotto counter. You said that you were looking for cigarettes. While you were behind the counter you attempted to open a drawer containing Instant Kiwi scratch cards. You could not do that. You then walked from behind the Lotto counter to behind the main till and counter area. Mr Patel followed you, told you that he does not have any cigarettes. He asked you to leave the store. You began searching the shelves underneath the till. You located Mr Patel’s bag. That contained the weekend’s takings of $7500 in cash, a purse, reading glasses, mobile phone and banking books. You picked up the bag. You shoved Mr Patel out of the way with your shoulder. You then left.

[3] On 8 July 2014, a little over three weeks later, you returned to the same store at 7.00 am in the morning. Again Mr Patel was working alone. You entered the store. You went directly behind the counter. You began to search the area where you had found his bag on the previous occasion. Mr Patel struggled with you. You pushed him to the ground. You left the store. You took with you a bag which contained two packets of tobacco.

[4] On 17 August you and your associate, Ms Waqa, went to the Kelston Shopping Centre in Glen Eden. The victim on this occasion was Mr Hasnain. He was working in the Indian restaurant which is situated in the shopping centre. He is the manager of the restaurant. You waited in the area until the restaurant was closed. After closing, Mr Hasnain took the evening takings which were about $500 in cash and put them in a plastic bag and he then put that in his pocket. He and another of the employees sat on a step outside the restaurant to have a cigarette. You approached him. He did not see you. You approached him from the side. You kicked him in the face. He fell back so that the back of his head struck the concrete ground. He was knocked unconscious. You then continued to kick him several times while he lay there. You then searched his pockets. You took the $500 cash, his wallet and his mobile phone. Your co-offender stood nearby. As a result of this, Mr Hasnain sustained a cut to the back of his head and a cut to the inside of his top lip.

[5] On 17 August, so this was earlier in the morning, about 8.45 am, you had been at the same shopping centre. Mrs White, she is 86, she was returning to her car with her shopping trolley. She had in her shopping trolley her handbag. You ran past and you snatched the bag from the trolley. You then fled the scene.

[6] On 19 August you went to the Glen Eden Lotto shop. Mr Patel was working alone in the shop. He was 60 years old at the time and is described as being diminutive in stature. He was sitting behind the shop counter. Ms Waqa stood in the doorway of the shop. She closed the shop’s sliding door. She prevented any further customers from entering the store. You approached the victim, Mr Patel. You told him to give you money. You then punched him twice to the head. He directed you to the Lotto till. You then pushed him to the ground. You then kicked him twice to the lower back area. You took approximately $700 from the till. Mr Patel sought to dial 111. You then pushed him to the ground again. When he stood up you punched him to the side of his face. He fell to the ground again. At this stage he then tried to leave the shop. He walked towards the door. Ms Waqa was standing in front of the door. She has pushed him with both of her hands at the same time. You have come from behind him. You punched him about the head and the shoulders and on this occasion you have demanded money from his pocket. He was then punched and kicked by your cooffender while [she was] demanding more money. He got his wallet out. He gave it to you. You took $25 cash. You gave his wallet back to him but then you punched him two more times. You have then fled the scene. Approximately $725 was taken. He was treated by paramedics before being taken to Waitakere Hospital. He was discharged after being treated for a minor head injury, a scalp contusion and multiple facial contusions.

[7] On 26 August 2014 you were at the Tai Ping Supermarket carpark in New Lynn. Ms Lian, who is the complainant or the victim in this matter, she was parking her car. Her handbag was on the passenger’s seat of her car. You opened the passenger’s door. You snatched her handbag and you fled from the scene. Her handbag contained various cards, approximately $300 in cash, an iPhone and other miscellaneous items that has been valued at approximately $700. When you were arrested and spoken to by the police you declined to comment.

[6] Later, the Judge summarised the victim impact statements:

[9] There are victim impact statements. Mr Hasnain, he is the manager of the restaurant, he describes suffering a blood nose, cut lip, cut to the back of the head and confirms that he was knocked unconscious. He has not suffered any lasting physical injuries. He describes the incident as frightening. What had happened as a result of this is that the workplace procedures have been changed. The shop now closes earlier and they always have two staff members on at night until closing time. He felt relieved when he heard that you had been remanded in custody as he was nervous that you would come back and rob him again.

[10] As for Mrs White, she was the 86 year old, she had been going to that shopping centre for 40 years without incident. She felt angry at the time of the offence. She has not felt scared or concerned. But again, she has had to change her behaviour.

[11] Mr Patel, as a result of the robbery he has sold his business after operating it for 12 years. He has changed his lifestyle and he is now retired. He describes himself as being badly beaten. His injuries were mainly bruising. He still continues to experience chest and lower back pains which require regular monitoring by his GP. He is upset about the incident. He has been a hardworking honest man. He sees himself being taken advantage of and excessively beaten for around $1000. He noted that this occurred despite him giving you everything that he had. He says this behaviour is unacceptable and has no place in society. Understandably, the robbery has caused him and his family significant distress and inconvenience.

[12] Ms Lian, she lost her purse, $400 cash,^[[3]] banking cards, identity documents. Her handbag was recovered. All the contents were missing. She describes the events as being shocking. She was upset at the time of the incident. This took place at her regular supermarket, an area that she felt safe and comfortable in. She is angry that she has been the victim of your offending.

[13] Mr Patel, he was the victim of your offending on two occasions. He did not suffer any physical injuries as a result of the incidents. After the second incident he was worried that you would strike yet again. However, he still had to continue opening the store. He was left feeling scared and frustrated. In the first incident he lost over $7000 in cash. The store had to be temporarily closed while a scene examination was completed.

Submissions

[7] In written submissions, it was contended for Mr Lavulo that his history of incarceration in Australia had a crushing effect on him and led to his being returned to New Zealand where he has no family support. He has never had the benefit of a rehabilitative sentence or a rehabilitative programme. Now for the first time, because he is in prison in New Zealand, he has been exposed to rehabilitative programmes. He has obtained certificates for completing a parenting programme, the Powerful Relationships programme, four modules of the alcohol and drug programme, and he is working in Mt Eden Correctional Facility’s kitchen.
[8] It is submitted that Mr Lavulo’s early pleas of guilty to the charges demonstrates that Mr Lavulo accepts his wrongdoing and is not making excuses for his behaviour. It is submitted, further, that he shows genuine remorse and emphasis is placed on the three-page letter provided to Judge Bergseng at sentencing. It is submitted that the letter demonstrates Mr Lavulo’s insight into his offending and a genuine desire to change his behaviour.
[9] Counsel concludes:

It is submitted that the sum of these mitigating factors is relevant in assessing the need to deter Mr Lavulo from future offending, and the need to promote in him a sense of accountability for his actions. Mr Lavulo has already genuinely accepted that he is solely accountable for the harm done to the victims and the community. He has recognised that he cannot continue to offend and make choices that cause harm to others and the community. He has also demonstrated commitment to rehabilitation and to breaking his cycle of re-offending. It is submitted that Mr Lavulo has therefore demonstrated motivation to change in a manner that mitigates the risk he poses to the community.

Analysis

[10] The imposition of an MPI is provided for by s 86 of the Sentencing Act 2002, which provides (relevantly):

86. Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

(1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.

(2) The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

...

(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of—

(a) two-thirds of the full term of the sentence; or

(b) 10 years.

[11] The imposition of an MPI is a matter of discretion for the sentencing Judge.^[4] In this case, Judge Bergseng gave as his reason for imposing an MPI of 50 per cent the repetitive nature of Mr Lavulo’s offending, the violence that it involved and the targeting of vulnerable victims.^[5]
[12] In our view, Judge Bergseng did not err in exercising his discretion to impose an MPI in this case. It is the totality of the offending that is relevant to the exercise of the discretion. The Judge had before him an offender of relatively mature years who had previously served significant terms of imprisonment in Australia for violent offending. Then, shortly after being deported from Australia, he was before the Judge on a number of charges involving violence on separate occasions. The harm to the victims and to the community is apparent from the quoted portions of Judge Bergseng’s sentencing notes at [5] and [6] above. So too is the need to protect the community. The personal mitigating factors of expressions of remorse, engaging in rehabilitative programmes and beginning to understand and take responsibility for his offending are insufficient to displace the s 86(2) focus.
[13] Equally, there is no question that a minimum period of imprisonment of 50 per cent of the sentence is appropriate. It means an additional 11 months’ imprisonment over and above the standard minimum period of imprisonment of onethird. It cannot be considered excessive.

Result

[14] The application for an extension of time to appeal is granted.
[15] The appeal against sentence is dismissed.

Solicitors:
Public Defence Service, Waitakere for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] R v Lavulo [2015] NZDC 12968 [sentencing notes].

^[2] Sentencing notes, above n 1.

^[3] There is a difference of $100 between the amount of cash the police summary of facts record Ms Lian as having lost and that she says was taken in her victim impact statement.

^[4] See R v Brown [2002] NZCA 243; [2002] 3 NZLR 670 (CA) at [28]–[36]; applied most recently by this Court in Tereora v R [2015] NZCA 120 at [49]–[50] and R (CA730/2014) v R [2015] NZCA 388 at [41].

^[5] Sentencing notes, above n 1, at [23].