Lavea v R [2014] NZCA 192 (21 May 2014)

Last Updated: 28 May 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA766/2013 [2014] NZCA 192
BETWEEN	SAULEAO LAVEA Appellant
AND	THE QUEEN Respondent

Hearing:	30 April 2014
Court:	Harrison, Courtney and Clifford JJ
Counsel:	I Jayanandan and E Ward for Appellant M R Harborow for Respondent
Judgment:	21 May 2014 at 12 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] The appellant, Sauleao Lavea, pleaded guilty to two counts of aggravated robbery, two counts of unlawfully taking a motor vehicle, two counts of money laundering, one count of unlawfully possessing a firearm, one count of unlawfully possessing an explosive (ammunition), one count of possessing cannabis and one count of selling cannabis.
[2] On 11 October 2013 Mr Lavea was sentenced by Judge McNaughton in the District Court at Manukau to imprisonment for nine years and ordered to serve a minimum period of four years and six months.^[1]
[3] Mr Lavea now challenges that sentence as being manifestly excessive. He does not challenge his 50 per cent minimum period of imprisonment.

Facts

[4] On 13 April 2010 Mr Lavea and a Mr Tauaese stole a Nissan Cefiro motor vehicle from Panmure for use as a getaway car in an aggravated robbery which was planned for the following day. That same day Mr Lavea contacted his nephew to steal three pairs of light blue disposable overalls from his work to use as disguises for the robbery.
[5] On 14 April 2010 Mr Lavea, Mr Tauaese and a third offender robbed the BNZ branch at the Botany town centre. Mr Lavea and Mr Tauaese were wearing the light blue disposable overalls and their heads and faces were covered. They ran into the bank. The third offender acted as the getaway driver. A sawn-off shotgun was presented at one of two Armourguard employees who were present to collect cash from the bank. There was a demand for the cashbox, which was handed over. The offenders fled the scene in the stolen car. The cashbox was in fact empty. The stolen car was found in a nearby street with the cashbox inside it.
[6] The second aggravated robbery occurred some two weeks later, on 27 April 2010. Four days prior to that Mr Lavea and Mr Tauaese stole a Honda Odyssey motor vehicle from the St Luke’s Shopping Mall carpark. On 27 April Mr Lavea, Mr Tauaese and a third offender robbed the BNZ branch in Ormiston Road, Flatbush. Again, two offenders entered the bank and a gun was presented.
[7] Again, the two offenders ran towards Armourguard employees, one presenting the firearm. A security case was handed over. On this occasion it contained $63,125. The offenders left the scene in the stolen Honda car, which was found dumped nearby.
[8] The Judge concluded that he was sure Mr Lavea had been the gunman during the second robbery, based on the clothes being worn, and that it was likely he was also the gunman in the first robbery. The Judge was also satisfied that Mr Lavea and Mr Tauaese were the organisers of the offending.
[9] The money laundering charges relate to the way in which Mr Lavea and his co-offender dealt with the cash proceeds.
[10] The balance of the charges followed the execution by the police of a search warrant at Mr Lavea’s address on 13 May 2010.

The challenged sentencing decision

[11] The Judge set starting point sentences of eight and seven years respectively for the two separate instances of aggravated robbery. Having regard to totality, the Judge fixed a combined starting point of ten years.
[12] The Judge concluded that no uplift was required for the balance of Mr Lavea’s offending because:

• (a) the money laundering and firearms and ammunition counts were incidental to the aggravated robbery, as was the unlawful taking of the motor vehicle; and
• (b) the drug offending was, although separate, at a relatively low level.

[13] The Judge then turned to aggravating features.
[14] The Judge treated Mr Lavea’s previous conviction for aggravated robbery as a significant aggravating feature. On that occasion, Mr Lavea participated in a robbery involving multiple offenders entering a dairy, where a female staff member was punched in the face. Mr Lavea was sentenced to imprisonment for three years. The Judge observed that the facts of the robbery, reflected in the sentence imposed, showed that it was serious offending.
[15] Mr Lavea was released on parole from that sentence on 27 January 2010, so that the offending for which he was sentenced by Judge McNaughton occurred within three months of his release. Mr Lavea was recalled to prison, and served the balance of his sentence. That sentence expired in December 2011. Thereafter, Mr Lavea was on remand in custody until the time of his sentencing in October 2013.
[16] Based on the aggravating factors of that previous offending, and of this offending having occurred while Mr Lavea was on parole and only shortly after his release, the Judge uplifted the ten year starting point by two years.
[17] Finally, the Judge reduced that 12 year starting point by one year on account of Mr Lavea’s youth, one year on account of demonstrated remorse and a commitment towards rehabilitation and a further year on account of Mr Lavea’s late guilty pleas.
[18] That resulted in his end sentence of nine years’ imprisonment.

Mr Lavea’s appeal

[19] Mr Lavea only challenges one aspect of his sentence: that is the two year uplift on account of his previous offending and his offending whilst on parole. For Mr Lavea, Ms Jayanandan, relying on this Court’s decisions in Malamatenios v R and Vernon v R,^[2] argues that the Judge erred in fixing that uplift because he did not take account of the time Mr Lavea served in prison following his recall and before his previous sentence expired. It was Ms Jayanandan’s submission that the uplift for previous offending and offending whilst on parole, adjusted to reflect that matter, should only have been one year.

Analysis

[20] As this Court has said many times, an appeal against a sentence as being manifestly excessive must focus on the end point sentence the Judge reaches, not the methodology adopted. It is only where the end point sentence can be said to be manifestly excessive that the appeal will succeed.
[21] In our view, there can be no challenge here to the end sentence of nine years imposed by the Judge on Mr Lavea for this very serious offending. Mr Lavea organised and participated in two well planned aggravated robberies against bank branches within two weeks of each other. On both occasions disguises were worn and a firearm was brandished. The Judge was sure that Mr Lavea had been carrying the firearm during the second robbery, and that he had most probably done likewise during the first robbery. Subsequently a sawn-off pump action shotgun and two live shotgun rounds were found at Mr Lavea’s home. Mr Lavea also admitted to selling cannabis.
[22] By our assessment, the Judge’s totality assessment was fair to Mr Lavea, and there could well have been an uplift to the sentence for the other offending.
[23] Moreover, we do not think there can be a challenge to the uplift for aggravating circumstances fixed by the Judge. The Judge did not, we acknowledge, set and then explicitly reduce the uplift because the offending on parole resulted in Mr Lavea’s recall to prison. Such an adjustment may be appropriate to avoid the risk of double punishment. At the same time, we have said that where such an adjustment is appropriate, account may still be taken in subsequent sentencing of the fact that the further offending was committed whilst on parole.^[3]
[24] In our view, whatever account could have been taken of the period of Mr Lavea’s recall, an uplift of two years, or 20 per cent, was well within range on account of the aggravating factors of the previous aggravated robbery conviction, that this offending occurred only shortly after Mr Lavea’s release from his prison sentence for that offending, and whilst he was still on parole. The significance of those matters in terms of Mr Lavea’s culpability for this offending, the need for deterrence and the need for the protection of the public from further offending justify such an uplift. The cases of Vernon and Waterworth v R referred to by the Crown in its submissions support that conclusion.^[4] There this Court approved uplifts of 22 and 23 per cent respectively for defendants who had previous convictions for similar offending and who had offended whilst on parole for those offences.

Result

[25] Accordingly, Mr Lavea’s appeal against his sentence is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] R v Lavea DC Manukau CRI-2010-092-7225, 11 October 2013.

^[2] Vernon v R [2010] NZCA 308.

^[3] Vernon v R, above n 3, at [15].

^[4] Vernon v R, above n 2; Waterworth v R [2012] NZCA 58 at [43]–[45].