Appellant. THE QUEEN Respondent. Harrison, Goddard and Andrews JJ JUDGMENT OF THE COURT

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1 DRAFT IN THE COURT OF APPEAL OF NEW ZEALAND CA761/2013 [2014] NZCA 375 BETWEEN AND BENJAMIN VAINU Appellant THE QUEEN Respondent Hearing: 29 July 2014 Court: Counsel: Judgment: Harrison, Goddard and Andrews JJ J E Juran for Appellant J M Jelas for Respondent 6 August 2014 at pm JUDGMENT OF THE COURT A The 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 [1] 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 VAINU V R CA761/2013 [2014] NZCA 375 [6 August 2014]

2 scene. The two men were seen getting into the Nissan Cefiro, which was driven by a third man wearing light blue overalls. [2] 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 [3] 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 [4] 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 [5] 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. [6] Detective Sergeant Mariu first showed Ese Tauaese a booklet of photographs, prepared by another Police Officer, Detective Cleary, as an investigative tool to be 1 2 R v Vainu DC Manukau CRI , 11 October R v Tauaese DC Manukau CRI , 29 July 2013.

3 shown only to associates and family of the arrested men. The purpose was to establish identities, nicknames, and possible information about the parties involvement in the offences. Mr Vainu s photo was included, as the Police had a record of him being associated with Sanerivi Tauaese. Detective Sergeant Mariu acknowledged that showing Ese Tauaese the photo booklet was not a formal identification procedure under s 45(3) of the Evidence Act [7] Ese Tauaese made notes under the photographs of the men he recognised. He wrote Unique under the photograph of Mr Vainu, and signed his note. 3 Detective Sergeant Mariu then took a formal statement from Ese Tauaese, in which he said that Mr Vainu was one of three men he had seen at the Tauaese home about a week before his birthday on 20 April He said that all three men were wearing one piece baby blue suits. The detective said he considered whether to carry out a formal identification procedure but decided not to, as he thought any such procedure would be tainted by the earlier identification. [8] It was submitted to the Judge that the evidence of Ese Tauaese s identification was inadmissible as no formal identification procedure had been undertaken, and there was no good reason under s 45(4) of the Evidence Act for dispensing with the formal procedure. [9] The Judge concluded that the identification was reliable, and that there were good reasons for not carrying out a formal identification procedure, in that at the time, no officer involved in the investigation or prosecution of the offending could reasonably have anticipated that identification would be an issue at Mr Vainu s trial. 4 Accordingly, he ruled the identification evidence admissible. [10] When he gave evidence in the trial, Ese Tauaese said that he recognised Unique when he saw him in his brother s room when he went past the room in the sleepout they shared. They had acknowledged each other when Ese Tauaese went past. He said he and Unique had both been at Hillary College for about a year, some six years previously. 3 4 At trial, the appellant accepted that he was known by the nickname Uneek. A reference to the Evidence Act 2006, s 45(4): good reasons for not following a formal procedure.

4 [11] On appeal, Mr Juran submitted that the Judge was wrong to find a good reason not to carry out a formal identification procedure, as it would have been obvious that identification would be an issue, as all people involved in the robbery had tried to disguise their identity by wearing overalls, head coverings, and masks. He also submitted that the Police should have interviewed Ese Tauaese before showing him the photographs. Mr Juran further submitted that the circumstances of the identification were not such as to produce a reliable identification. He referred to the cross-examination of Ese Tauaese at trial, when it was put to him that he had not correctly identified Mr Vainu. [12] Ms Jelas acknowledged that the Judge was wrong in his conclusion that the Police Officers could not reasonably have anticipated that identification would be an issue at trial. However, she submitted that Ese Tauaese had recognised Mr Vainu, in circumstances in which the identification was reliable. Accordingly, a formal identification procedure was not required. [13] We accept that the Police Officers could reasonably have anticipated that identification would be an issue at trial. However, we cannot conclude that the visual identification was inadmissible. Ese Tauaese recognised Mr Vainu as someone he had known previously. Carrying out a formal identification procedure would then have been of no practical utility. 5 We are satisfied that the circumstances in which that occurred have produced a reliable identification. [14] It was open to Mr Vainu to challenge the identification at trial, and he did so, but the aspects on which Ese Tauaese was cross-examined do not lead us to a conclusion that the identification evidence should have been excluded. The Judge s summing-up [15] Mr Vainu s second ground of appeal is that the Judge watered down the warning as to visual identification evidence, and did not fairly set out Mr Vainu s defence when summing up to the jury at the end of the trial. Save for one respect, 5 See Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [17] and [26].

5 which we refer to below, Ms Jelas submitted that there was no error in the summing-up. [16] Mr Juran submitted that by beginning his direction as to identification evidence with the words the law requires me to give you a warning about identification evidence, the Judge was sending a message to the jury that the issue was of less importance. 6 We do not agree. The Judge was stressing the importance of the need for caution when considering Ese Tauaese s visual identification. The Judge referred again to the importance of the identification warning, and repeated it, later in his summing-up. [17] Mr Juran also submitted that the Judge had failed to set out adequately the nature of Mr Vainu s challenge to Ese Tauaese s evidence. We do not accept that submission. The challenges to the identification, and Ese Tauaese s alleged failings in making the identification, were set out by the Judge, and squarely before the jury. [18] The one area in which we find, and Ms Jelas acknowledged, the Judge to have erred in his summing-up was at the end of the Judge s discussion of the appellant s case where the Judge said: [82] There is just one last thing I [want] to say about the submissions for Mr Vainu before we stop. You will remember Mr Juran talked to you about a DNA sample and he said well Mr Vainu gave a swab, one of these buccal swabs, he supplied a DNA sample and he said to you that is consistent with innocence. Well the flip side of that coin is that anyone who did not, anyone who did not prov[id]e a DNA sample is not innocent. Now all of the accused have a right to refuse to provide the police with a DNA sample, just as they have a right to refuse to make a statement, just as they have a right to refuse not [sic] to give evidence in their defence. That is their right, and in exercising any of those rights you should take nothing for or against them. So just put that out of your mind. That was not a valid submission to make and inferentially it might prejudice you in relation to the case against the other two accused. So it does not count for or against anyone whether they provided a DNA sample. On the defence case Mr Vainu was incorrectly identified, he was not at the meeting at the sleep-out he was not at the scene of the robbery. [19] Mr Juran submitted that in referring to the flip side, and by saying that he had not made a valid submission, the Judge was belittling this aspect of the 6 R v Tauaese DC Manukau CRI , 12 August 2013 at [56].

6 defence case. He submitted that the Judge need only have said that no adverse inference should be taken against any of the co-accused as a result of their not having provided DNA samples. But given the evidence that Mr Vainu had given a DNA sample, the Judge was entitled to make a point of that when addressing the jury. [20] Ms Jelas accepted that the Judge s comment was unfortunate, but submitted that his having volunteered a DNA sample was not a major plank of Mr Vainu s case, which was that he had been wrongly identified. She submitted that there had been no miscarriage of justice. [21] We agree that the Judge s direction could have been better worded, but we accept Ms Jelas s submission that Mr Vainu s defence was squarely before the jury, and there has been no miscarriage of justice. Summary: appeal against conviction [22] Both grounds of the appeal against conviction fail. Appeal against sentence [23] The Judge adopted a starting point of seven years imprisonment, which was the same as that adopted for Mr Vainu s co-offenders. He then applied an uplift of 18 months to reflect Mr Vainu s history of convictions for violent offending, noting also that Mr Vainu had recently been released from prison when he committed the present offences. The Judge allowed a discount of six months in recognition of Mr Vainu s rehabilitative prospects, shown by his having completed a number of programmes (including life skills, alcohol and drugs, literacy and numeracy, and tikanga Māori programmes) while on remand in custody, and having said he was willing to undertake suitable rehabilitative programmes while in custody. The Judge refused to make any distinction between the roles played by Mr Vainu and his co-offenders, or to allow a discount for the period he spent on restrictive bail conditions. 7 7 Mr Vainu was on EM bail with a 24-hour curfew between 22 February 2012 and 23 July 2013.

7 [24] Mr Juran submitted that the starting point of seven years was high, but conceded that it was available to the Judge. He submitted that the Judge erred in applying an uplift of 18 months for previous convictions, and in not allowing a discount for the period of 17 months spent on EM bail, with a 24-hour curfew. He also submitted that Mr Vainu s end sentence of eight years imprisonment did not show proper recognition for the fact that he was found guilty of one robbery, whereas his co-offenders received sentences of nine years imprisonment having committed two aggravated robberies. [25] Ms Jelas submitted that the uplift for previous convictions was well justified in the light of Mr Vainu s extensive list of previous convictions, and the fact that the present offending had occurred only about one month after he had been released after serving a prison sentence imposed in respect of offending between March 2005 and January She referred also to the probation officer s assessment of Mr Vainu as being at a high risk of reoffending, and having no motivation to change. While the uplift was high, the reoffending demonstrated the need for a strong deterrent sentence and one which would provide protection of the public. Ms Jelas acknowledged that a discount may be given for time spent on restrictive bail conditions but submitted that there is no right to such a discount. She noted that there was no record of any proven breaches of bail. [26] When considering an appeal against sentence, this Court focuses on the end sentence, not the methodology adopted in reaching it. It is only where the end sentence can be said to be manifestly excessive that the appeal will succeed. [27] In this case, while another judge may have allowed greater discounts for Mr Vainu s rehabilitative prospects, we are not satisfied that the end sentence was manifestly excessive. We do not accept that the Judge was wrong to conclude that a sentence that focused on deterrence and protection of the public was required given the circumstances of Mr Vainu s offending, and his previous convictions. He has a significant history of serious violent offending, and committed the present offence very shortly after he had been released from serving a term of imprisonment. While the uplift applied of 18 months was at the outer limit of permissibility, we accept that

8 it could be justified in these particular circumstances. There is no doubt that a deterrent sentence was required. [28] Nor was the Judge wrong not to allow a discount in respect of the time spent on EM bail. Mr Vainu had sought EM bail, rather than a remand in custody, and it was granted. While another judge may have allowed a discount against the end sentence, there was no obligation to allow one. [29] We do not accept Mr Vainu s submission that his sentence was manifestly excessive when compared with the sentences imposed on his co-offenders, who were convicted in respect of two armed robberies. The sentences imposed on each of them were tailored to their individual circumstances. When the sentences are examined, it is apparent that there was no unfair disparity. [30] A starting point of 10 years imprisonment was adopted for the two charges of aggravated robbery, in totality, for both Sanerivi Tauaese and Sauleao Lavea. The Judge found that no uplift for previous convictions was required in the case of Mr Tauaese, and his rehabilitative prospects justified a discount of one year, leading to an end sentence of nine years imprisonment. 8 Mr Lavea had a significant history of previous offending, leading to an uplift of two years. A discount of two years was allowed for Mr Lavea s youth, remorse, and commitment to rehabilitation, and a further discount of one year was allowed for his late guilty pleas, leading to an end sentence of nine years imprisonment. 9 [31] We are not persuaded that Mr Vainu s end sentence was manifestly excessive and his appeal against sentence is dismissed. Result [32] The appeal against conviction and sentence is dismissed. Solicitors: Crown Law Office, Wellington for Respondent 8 9 R v Tauaese Manukau CRI , 11 October R v Lavea Manukau CRI , 11 October 2013.