Emery v Police
[2015] NZHC 1740
•27 July 2015
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2015-454-6 [2015] NZHC 1740
BETWEEN RAUKAWA TE KAIRANGATIRA
JAMES EMERY Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 July 2015 Counsel:
C B Wilkinson-Smith for Appellant
D R Davis for RespondentJudgment:
27 July 2015
RESERVED JUDGMENT OF MACKENZIE J
I direct that the delivery time of this judgment is
3.30 pm on the 28th day of July 2015
Solicitors: Crown Solicitor, Palmerston North, for Respondent
EMERY v NEW ZEALAND POLICE [2015] NZHC 1740 [27 July 2015]
[1] The appellant pleaded guilty in the District Court at Palmerston North to one count of assault with a weapon, two counts of assault on a child and two counts of sexual connection with a young person. He was sentenced by Judge Smith on
28 May 2015 to two years and two months imprisonment.1
[2] He appeals against that sentence. He submits that it was manifestly excessive. He submits that the term of imprisonment should have been such that a sentence of home detention is available, and that home detention is the least restrictive outcome and should be imposed.
[3] The circumstances of the offending are unusual, particularly because of the actions of the victim’s mother. It is appropriate to describe the circumstances in some detail.
[4] The victim was 13 years old at the time of the offending. The appellant was
21 years old and lived with his parents in Fielding. In early 2013, the appellant commenced a Facebook conversation with the victim. In fact, the victim’s mother was using her daughter’s account and purporting to be her.
[5] Between 1 and 2 March 2014, the mother travelled with the victim to the Manawatu and drove to the appellant’s house where they met him for the first time. The appellant became aware that the victim was only 13 years old, but it is unclear from the summary of facts precisely when this occurred. The mother went to a liquor store to purchase two bottles of Jack Daniels for the appellant and his brother. They all returned to the motel where the visitors were staying.
[6] The appellant became intoxicated and abusive and forced the victim onto a couch. She kicked him off and was able to escape the unit. She returned later and managed to lock the appellant and her mother out. The appellant grew angry and tried to force open a back window, causing property damage in the process. The mother unlocked the door, allowing the appellant to enter. He began punching the
victim around her upper body. The mother eventually drove the appellant and his
1 R v Emery [2015] NZDC 9485.
brother home, and the victim accompanied them. The appellant continued trying to hurt the victim in the car. This gave rise to the first charge of assault on a child.
[7] Between 28 and 31 March 2013, the victim was brought back to Feilding by her mother and they stayed at the Feilding Motor Camp. The appellant met up with them and they drove to a river. The appellant was intoxicated and began throwing rocks at the victim and chasing her around. He removed a bottle from the vehicle and hit her over the head with it. This gave rise to the charge of assault with a weapon.
[8] The appellant joined the visitors for dinner at the motor camp. He consumed alcohol purchased by the mother. He became angry and began smashing items. The victim ran away but the appellant chased her. He began punching her and had to be restrained by people nearby. This gave rise to the second charge of assault on a child.
[9] The following day, the mother collected the appellant. They returned to the motor camp where he again began drinking alcohol provided by her. The victim went to bed. The appellant locked the mother out of the room and had sexual intercourse with the victim. This gave rise to the first charge of sexual conduct with a person under 16.
[10] Between 1 April and 15 April 2013, the mother brought the victim back to Feilding. The appellant had been led to believe that the victim was pregnant with twins, although she had repeatedly tried to tell him she was not. The mother provided alcohol to the appellant and the victim. The appellant’s mother was present for a time during the evening. She and the victim’s mother left to attend a nearby party. The victim went to bed, and the appellant entered her bedroom and had sexual intercourse with her. That gave rise to the second sexual conduct charge.
[11] The offending apparently came to light when the victim disclosed it to her grandmother with whom she was living in 2014. The appellant was charged in mid
2014.
[12] In sentencing, the Judge noted with concern the involvement of the mother, which he described as disturbing and expressed the hope that the authorities would take appropriate actions in regard to her, although this has apparently not occurred. He noted that the fact that her mother was the one supplying the alcohol and essentially providing her daughter to the appellant did not remove his responsibility and that he had taken advantage of a vulnerable young 13 year old who was “caught in the vortex of her mother’s behaviour”.
[13] The Judge took as the lead offending the two sexual conduct charges and noted the maximum sentence of 10 years imprisonment. He also noted the Crown’s submission that the appropriate starting point should be between two and half years and two years nine months, and the appellant’s submission that it should be two and a half years. The Judge took a starting point of two and a half years, referring to Nesbitt v Police2 and R v H.3 He uplifted that starting point by six months for the three assaults, noting that one of them was an assault with a weapon (a bottle). He then gave a deduction of two months from that total starting point of three years for
youth (the appellant is 21 years old). The Judge noted counsel’s submission that there should be a further deduction for family support. He regarded that as a submission in terms of previous good character, but noted that there were previous convictions and made no further deduction. For the guilty plea, he allowed eight months (approximately 25 per cent of the two years and 10 months), to leave an end sentence of two years and two months.
[14] Mr Wilkinson-Smith for the appellant does not take issue with the starting point of two and a half years for the sexual conduct charges, or with the six month uplift for the assault charges. He submits that, as well as the discount of two months for youth, there should be a discount of four months for family support and personal family circumstances at the time of sentencing which, with the discount for the guilty plea, would leave an end sentence which is within the range for home
detention. He submits that home detention is the appropriate sentence.
2 Nesbitt v Police HC Christchurch CRI-2010-0409-90, 30 November 2011.
3 R v H [2015] NZHC 657.
[15] The focus must be on the end sentence, and whether that is within the appropriate range. I consider that the starting point of two and a half years for the sexual conduct charges was favourable to the appellant. This was unusual, and very serious and disturbing, offending. The almost incomprehensible actions of the victim’s mother cannot excuse the appellant’s role in it. The sexual conduct with this
13 year old girl extended to sexual intercourse. While the intercourse was consensual, the extent to which a 13 old year old girl could be regarded as freely consenting in those circumstances must be questionable. That is a seriously aggravating feature. Having regard to the maximum penalty for this offence of
10 years, I regard the starting point of two and a half years as lenient. Also, the discount of two months from a total starting point of three years for youth, for a
21 year old offender, is, if anything, generous.
[16] Counsel submits that there should be an additional allowance for family support. He also submits that the offending is out of character. The offending does seem out of character. The appellant has a limited criminal history involving:
· driving with excess blood alcohol and driving dangerously, in February
2013, just prior to the present offending;
· a separate incident of threatening behaviour and obstructing Police in
February 2013;
· a conviction for disorderly behaviour in March 2013 which appears to relate to when Police were called in respect of this offending, to the incident at the motor camp; and
· one charge in April 2014 of possessing an offensive weapon, for which the appellant was convicted and discharged.
[17] On that history, I accept counsel’s submission that this behaviour was out of character, but it was, as the Judge held, not deserving of a discount for previous good character. The appellant does have strong family support, evidenced by a large public gallery at the hearing of this appeal of whānau and fellow church members.
Also, the appellant did offer to attend a restorative justice conference. The appellant is married with a young child, and has the support of his wife, and family responsibilities, which are also relevant considerations. Those are positive features, but I am not persuaded that the Judge was wrong not to allow a discount for them. Further, on this appeal, any discount which might be considered in respect of these factors is off-set by the lenient starting point which was adopted.
[18] I am satisfied that the sentence of two years two months imprisonment is not manifestly excessive.
[19] That conclusion makes it unnecessary for me to address the submissions on home detention.
[20] The appeal is dismissed.
A D MacKenzie J
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