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.…

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 Emery v Police

Details

AGLC: Emery v Police [2021] NZHC 851
Case: [2021] NZHC 851
Decision Date: 21 April 2021

CaseChat Overview and Summary

In the case of Emery v Police, the appellant, Mr Emery, appealed against a sentence of nine months' imprisonment imposed by Judge D M Wilson QC for assault with a weapon. Mr Emery argued that the sentence should have been one of intensive supervision. The offending involved Mr Emery pushing his then partner out of a car, pinning her against a wire boundary fence with his car, and threatening to run her over. The District Court judge considered home or community detention but found it impractical due to Mr Emery's disability and health conditions. After submissions from both sides, the District Court judge settled on a sentence of nine months' imprisonment, with a two-month discount for Mr Emery's disability.

The legal issue before the High Court was whether the District Court's decision to impose a sentence of imprisonment instead of intensive supervision was correct. The court considered the principles of the Sentencing Act 2002, specifically sections 8(g) and 8(h), which require the imposition of the least restrictive outcome appropriate in the circumstances, and section 16(1) and (2), which emphasize keeping an offender in the community where practicable and consonant with public safety. The Court of Appeal's decision in R v Rawiri was also considered, which rejected the notion that imprisonment should be the default sentence when home detention is unavailable.

The High Court found that the District Court had erred in its conclusion that intensive supervision would not provide adequate deterrence and that imprisonment was appropriate. The court found that Mr Emery's low risk of reoffending and his personal circumstances, including limited mobility and health conditions, made imprisonment disproportionately severe and ruled it out. The court also concluded that the purpose of deterrence could be achieved through a sentence of intensive supervision, given Mr Emery's low risk of reoffending and his unique circumstances. Therefore, the High Court allowed the appeal, quashed the sentence of imprisonment, and substituted a sentence of 12 months' intensive supervision, with the standard conditions in section 54F of the Sentencing Act applying.

Orders