Emery v Police - [2020] NZHC 2095

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-65

[2020] NZHC 2095

BETWEEN
DYLAN EMERY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 August 2020

Appearances:

A Hill for Appellant

D McWilliam for Respondent

Judgment:

19 August 2020

JUDGMENT OF LANG J

[on appeal against refusal to grant discharge without conviction]

This judgment was delivered by me on 19 August 2020 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Lawyers on Pukaki, Rotorua Crown Solicitor, Rotorua

[1] Mr Emery pleaded guilty in the District Court at Rotorua to a charge of breaching a protection order.1 On 21 July 2020, Judge Hollister-Jones declined to grant Mr Emery a discharge without conviction.2 The Judge convicted Mr Emery on the charge and sentenced him to nine months supervision with special conditions. He also directed Mr Emery to pay reparation in the sum of $300 to the victim of his offending.

[2] Mr Emery does not appeal against the sentence of reparation. He appeals, however, against the Judge’s decision declining to grant him a discharge without conviction.

The offending

[3] Mr Emery is 29 years of age. He has been in a relationship with the victim, his partner, for 15 years. They have three children aged two, eight and 10 years respectively.

[4] In 2019 Mr Emery and his partner began to experience financial and relationship difficulties. During that year police records show that the police were required to attend four family harm incidents between Mr Emery and his partner.3 In each incident Mr Emery was said to be the aggressor, with his partner being the primary victim and his children exposed to the incidents.

[5] On 20 November 2019, Mr Emery’s partner obtained a protection order against Mr Emery from the District Court at Hamilton. The police served a copy of the order on Mr Emery on 18 January 2020. The protection order provided that Mr Emery was permitted to live with his partner with her consent, but that she could revoke her consent at any point.

1      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a).
2      New Zealand Police v Emery [2020] NZDC 14184.
3      The incidents occurred on 20 February, 24 March, 28 October and 16 November 2019.

[6] Mr Emery’s mental health deteriorated after he was served with the protection order. Eight days later, on 26 January 2020, he attempted to commit suicide. This resulted in his hospitalisation in a coma for a period of three days.

[7] Mr Emery returned to live with his partner with her consent in early February 2020. On 14 February 2020 he went on a hunting trip in the Manawatū region with his two sons. When he returned two days later, Mr Emery was intoxicated. He noticed that his vehicle was damaged, and an argument then ensued as to whether his partner had seen another man during Mr Emery’s absence. Mr Emery became enraged and punched a hole in the hallway of the address.…

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 [2020] NZHC 2095
Case: [2020] NZHC 2095
Decision Date: 19 August 2020

CaseChat Overview and Summary

The appeal by Dylan Emery against the District Court's refusal to grant him a discharge without conviction was heard in the High Court of New Zealand. Emery had pleaded guilty to breaching a protection order and had been sentenced to nine months supervision with special conditions and ordered to pay reparation. The core issue before the court was whether the refusal to grant a discharge without conviction was justified. The relevant legal principles under the Family Violence Act 2018 were examined, particularly sections 106 and 107, which detail the criteria for granting a discharge without conviction. The court had to determine whether the direct and indirect consequences of a conviction were disproportionate to the gravity of the offence.

The court found that the offending, while not at the highest end of severity, still warranted a conviction given the multiple incidents of family violence involving Emery over the years. The court acknowledged Emery's remorse and positive attributes but emphasised the importance of the public record of such offences to deter future misconduct. The court concluded that the consequences of a conviction, including the stigma, were not out of proportion to the gravity of the offence, given the recurring nature of the violence. Therefore, the appeal was dismissed, upholding the District Court's decision not to grant a discharge without conviction.

Orders