Emery v Police - [2015] NZHC 1740

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 Respondent

Judgment:

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…

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.

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Details

Case: [2015] NZHC 1740
Decision Date: 27 July 2015

CaseChat Overview and Summary

The High Court of New Zealand was asked to consider an appeal against sentence in the case of Emery v Police. The appellant, Raukawa Te Kairangatira James Emery, had pleaded guilty to several serious charges including assault with a weapon, assault on a child, and sexual connection with a young person. The District Court had sentenced him to two years and two months imprisonment. Emery appealed the sentence, arguing it was manifestly excessive and that a sentence of home detention would be more appropriate. The unusual circumstances of the offending, including the victim's mother's involvement, were detailed in the judgment.

The legal issue before the court was whether the sentence imposed by the District Court was manifestly excessive. The court needed to determine if the sentence was within the appropriate range and whether the appellant's submissions about family support and out-of-character offending warranted a different outcome. The court considered the nature of the crimes, the appellant's criminal history, and the submissions regarding family support and the offending being out of character.

The High Court found that the sentence of two years and two months imprisonment was not manifestly excessive. The starting point of two and a half years for the sexual conduct charges was deemed lenient given the gravity of the offences. The court accepted that the offending was out of character for the appellant but did not allow a discount for family support and previous good character, balancing these factors against the lenient starting point. The court concluded that the sentence was appropriate and dismissed the appeal.

The final orders of the court were that the appeal was dismissed, and the original sentence of two years and two months imprisonment imposed by the District Court was upheld.

Orders