Emery v Police

[2021] NZHC 851

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-419-18

[2021] NZHC 851

BETWEEN

WILLIAM STEVEN EMERY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

19 April 2021

Appearances:

J Bell for the Appellant

B Harris for the Respondent

Judgment:

21 April 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 21 April 2021 at 11:30 am

Registrar/Deputy Registrar

EMERY v NEW ZEALAND POLICE [2021] NZHC 851 [21 April 2021]

[1]    Mr Emery pleaded guilty to one charge of assault with a weapon.1 On 16 February 2021 Judge D M Wilson QC sentenced him to nine months’ imprisonment.2 Mr Emery appeals that sentence, arguing the sentence should have been one of intensive supervision.

The offending

[2]    On 18 September 2020 Mr Emery was in a car with the complainant, his then partner. The couple argued. Mr Emery pushed the complainant out of the car. He drove away, turned around, drove toward the complainant, and pinned her against a wire boundary fence. He pushed her into the fence with the car four times. He revved the car engine to frighten the complainant, and told her “get in the vehicle or I will run you over”. She suffered broken fingernails.

District Court decision

[3]    Judge Wilson QC gave a sentence indication on 8 December 2020.3 If Mr Emery pleaded guilty, the approximate sentence would be 11 months’ imprisonment. The Judge indicated that a further discount might be available because Mr Emery was confined to a wheelchair (Mr Emery having had one leg amputated above the knee). Home or community detention were also identified by the Judge as possible sentencing options.4

[4]    At sentencing, the Judge began with his indication of 11 months’ imprisonment. The Judge explained that home or community detention was, for practical reasons, not available. For medical reasons it was not practical to have an electronic bracelet on Mr Emery’s remaining leg. Nor was it practical for a bracelet to be fitted to Mr Emery’s wrist.

[5]    Mr Bell, who represented Mr Emery at sentencing, submitted that, since home or community detention was not available, the appropriate sentence was one of

1      Crimes Act 1961, s 202C. Maximum penalty 5 years’ imprisonment.

2      Police  v  Emery  [2021]  NZDC  2641.    The Judge also added post-release non-contact and counselling conditions, and suspended Mr Emery’s driver licence for eight months.

3      Police v Emery DC Hamilton CRI-2020-019-004998, 8 December 2020.

4      At [7]-[9].

intensive supervision.    The Judge disagreed.    Such a sentence “would not offer adequate deterrence for the dangerous situation in which you placed your partner”.5

[6]    The Judge allowed a further discount of two months for the difficulty of serving a sentence of imprisonment with Mr Emery’s disability. The end sentence was accordingly nine months’ imprisonment. The Judge also disqualified Mr Emery from driving for eight months.

The appeal

[7]    Mr Bell, for Mr Emery, submits that a sentence of imprisonment for someone in Mr Emery’s unique circumstances is manifestly excessive. With home detention being unavailable, a period of intensive supervision was the least restrictive sentence most suitable in the circumstances.

[8]    Mr Harris, for Police, opposes the appeal. He submits that a sentence of intensive supervision would be manifestly inadequate in the circumstances. The emphasis of a sentence of intensive supervision is on rehabilitation. The offending requires a sentence that meets the sentencing purposes of denunciation and deterrence. Intensive supervision would not do so.

Legal framework for the appeal

[9]    For an appeal against sentence to succeed, the sentence generally must be shown to be manifestly excessive or wrong in principle.6 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.7

5 At [14].

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

7 At [36].

Decision

[10]   Under s 8(g) of the Sentencing Act 2002, the Court must impose the least restrictive outcome that is appropriate in the circumstances. Under s 8(h), the Court must take account of any particular circumstances of the offender that mean that the sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe.

[11]   Under s 16(1), when considering the imposition of a sentence of imprisonment, the Court must have regard to the desirability of keeping an offender in the community as far as that is practicable and consonant with the community’s safety. Under s 16(2), the Court must not impose a sentence of imprisonment unless it is satisfied that a sentence is being imposed for particular statutory purposes, that those purposes cannot be achieved by a sentence other than imprisonment, and that no other sentence would be consistent with the application of the principles of s 8 to the particular case.

[12]   In R v Rawiri8 the Court of Appeal, largely in reliance on s 16, rejected submissions that:

(a)Where home detention is appropriate, but for some reason is unavailable, the sentence must revert by default to imprisonment.

(b)Intensive supervision is appropriate only where the need for punishment or deterrence is minimal or non-existent.

[13]   Mr Emery’s offending was serious. I agree with Judge Wilson QC that the relevant purposes of sentencing in this case included deterrence. But I respectfully disagree with his conclusion that, in the circumstances of this case, a sentence of intensive supervision would not provide adequate deterrence, and that imprisonment was appropriate.

[14]   Mr Emery has separated from his partner. His risk of re-offending is assessed as low. Keeping him in the community would not put the safety of the community at

8      R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254.

risk, particularly in light of the circumstances to which refer in the next paragraph. Under s 16(1), this points to a community-based sentence.

[15]   Mr Emery has limited mobility, and lived alone prior to his sentencing. He also has a range of serious medical conditions, which are outlined in the pre-sentence report to which Judge Wilson QC referred in his notes. Indeed, at the hearing of the appeal I was informed that Mr Emery is currently in hospital.

[16]   Mr Emery’s personal circumstances have two implications. First, imprisonment would be disproportionately severe. Second, given his limited mobility, that he lives alone, and that he has been disqualified from driving for eight months, if Mr Emery were to be sentenced to intensive supervision, he would, in a practical sense, spend a great deal of time confined to his residence. I am of the view that, in these rather peculiar circumstances, the least restrictive sentencing outcome that is appropriate is intensive supervision.

[17]   Those two implications mean that a sentence of intensive supervision would be consistent with the application of the principles of s 8 to this case. In consequence, under s 16(2), imprisonment is ruled out.

[18]   I am also of the view that, in this case, the purpose of deterrence can be achieved by a sentence of intensive supervision. The need to deter Mr Emery from further similar offending is low, given his low risk of re-offending. The need to deter others from similar offending is not undermined by a sentence of intensive supervision, because that sentence is a response to Mr Emery’s rather peculiar circumstances. For this reason also, the effect of s 16(2) is to rule out imprisonment.

[19]    For all of these reasons, I conclude that the appropriate sentence in the circumstances is one of intensive supervision. An appropriate period of intensive supervision is 15 months. However, Mr Emery has already spent a little over two months in custody since his sentencing. I will therefore impose a period of only 12 months.

[20]   In light of Mr Emery’s low chance of re-offending, there is no basis for me to impose special conditions under s 54G or s 54I. Only the standard conditions in s 54F will apply.

Result

[21]I allow the appeal.

[22]   The sentence of nine months’ imprisonment is quashed. I substitute a sentence of 12 months’ intensive supervision, that period to commence from the date of this judgment. The standard conditions in s 54F of the Sentencing Act apply.

Campbell J