Emery v Police
[2014] NZHC 430
•11 March 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-000003 [2014] NZHC 430
BETWEEN ROBIN HURIAE EMERY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 March 2014 Counsel:
C R Sheat for Appellant
M J Ferrier for RespondentJudgment:
11 March 2014
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether, when imposing a total sentence of two years and three months’ imprisonment on Mr Emery, the District Court made an error, and if so, whether a different sentence should be imposed.1
[2] This question arises because Mr Emery has appealed cumulative sentences imposed on him by Judge Walker in the Porirua District Court on 21 January 2014. The sentences were imposed after Mr Emery entered late pleas of guilty to three charges. Mr Emery was sentenced to:
(1) Twenty-one months and two weeks’ imprisonment for demanding with intent to steal;2
1 Criminal Procedure Act 2011, s 250(2)(a) and (b).
2 Crimes Act 1961, s 239(2). Maximum penalty is seven years’ imprisonment.
(2) Five months and two weeks imprisonment for driving while disqualified on a third or subsequent occasion3 and breaching release conditions.4
[3] These sentences were imposed cumulatively, hence the total prison sentence imposed on Mr Emery was two years and three months.
Background
Demanding with intent to steal
[4] On 12 July 2013, Mr Emery and three other patched members of the Porirua chapter of the Mongrel Mob went to the complainant’s address. Mr Emery and his co-offenders were invited inside the complainant’s house where Mr Emery told the complainant that they were there to “chat” about some money the complainant was said to have owed as a consequence of an accident that had occurred two weeks earlier.
[5] Mr Emery and his co-offenders pressured the complainant demanding
“where’s your money, how are you going to fix it”.
[6] Eventually Mr Emery instructed the complainant to pack up a Playstation 3 and controls and place them in a bag and hand that bag to Mr Emery, together with the complainant’s EFTPOS card. Mr Emery demanded to know the complainant’s pin number for his EFTPOS card. Mr Emery then told the complainant that he would get his Playstation back when Mr Emery received $1,500 from the complainant.
[7] Mr Emery and his associates then took the complainant’s property to
Cash Converters where they received $200 for the Playstation.
[8] Later in the day Mr Emery sent text messages to the complainant telling him to “sort that money, what are you doing?”
3 Land Transport Act 1998, s 32(1)(A) and (4). Maximum penalty is two years’ imprisonment.
4 Sentencing Act 2002, s 96(1). Maximum penalty is one year imprisonment.
[9] The complainant was extremely fearful. That evening he told his father what had happened. As a result of the complainant’s father’s interventions the “debt” the complainant was asked to pay to Mr Emery was reduced to $100.
[10] On 13 July 2013 the complainant discovered his Playstation at the
Cash Converters.
[11] On 18 July 2013 the complainant telephoned Mr Emery and told him $100 was in a shoe at the front of the complainant’s house. Later that morning Mr Emery went to the complainant’s house and uplifted the $100. He was arrested soon after by the police.
Driving while disqualified
[12] On 22 June 2013 Mr Emery was apprehended by the police driving a motor vehicle in Porirua. He admitted he was disqualified from driving.
[13] At that time Mr Emery had six previous convictions for driving while disqualified, the most recent of which was imposed on 15 August 2010 in relation to two incidents of driving while disqualified. At that time Mr Emery was sentenced to a concurrent sentence of four months’ imprisonment and disqualified from driving for one year and one day from 15 August 2012.
Breach of release conditions
[14] Mr Emery was released from prison on 20 March 2013. He was subject to release conditions for nine months. On 16 October 2013 Mr Emery breached his release conditions when he failed to report to the Probation Service.
Judge Walker’s decision
Demanding with intent to steal
[15] Judge Walker adopted a starting point of two years’ imprisonment to reflect what he described as being “a serious stand-over event and a home invasion ... with
force of numbers”. Judge Walker said a starting point of two years was required to deter Mr Emery, to hold him accountable and to protect the public from him.
[16] Judge Walker gave Mr Emery a two and a half months’ discount to reflect his guilty plea, which was late, and occurred after Mr Emery had initially pleaded not guilty.
Driving while disqualified and breach of release conditions
[17] Judge Walker dealt with the driving while disqualified and breach of release condition charges together. He adopted a starting point of six months’ imprisonment for these offences and gave Mr Emery a two week discount to reflect his late guilty pleas.
Grounds of appeal
[18] Mr Emery appeals his sentence in relation to the demanding with intent to steal on three bases:
(1) “Home invasion” should not have been considered as an aggravating factor.
(2) Mr Emery should have been entitled to a greater discount for his guilty pleas.
(3) The sentence imposed for this offence was manifestly excessive when compared to similar cases.
[19] Mr Emery submits that he should be sentenced to home detention in relation to all the matters in respect of which he was sentenced by Judge Walker.
Legal principles governing an appeal
[20] Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 121(3)(b) of the Summary Proceedings Act 1957 allowed the High Court to
quash a sentence imposed by the District Court where it was found that the sentence was:
... one which [was] clearly excessive or inadequate or inappropriate, or if the High Court [was] satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the court imposing sentence ...
Appeals under s 121(3)(b) of the Summary Proceedings Act 1957 were normally allowed if the High Court was satisfied that the sentence imposed by the District Court was “manifestly excessive”.5 While the Court was cautious before interfering with the discretion of the sentencing judge, there was a need to maintain consistency in sentences imposed for similar types of offending.6
[21] Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act
2011 provides:
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[22] Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include:
(1) errors of law;
(2) failing to take account of or not giving sufficient weight to relevant factors;
(3) taking account of irrelevant factors; and
5 R v Brooks [1950] NZLR 658 (CA).
6 Police v Sutherland HC Wellington CRI-2006-435-1, 27 June 2006 at [16]; R v Pawa [1978]
2 NZLR 190 (CA).
(4)committing an error of principle, such as adopting a starting point that is disproportionately high.
[23] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.
[24] In summary, I proceed on the basis that I can only allow Mr Emery’s appeal if I am satisfied that there is an error in the sentence which Judge Walker imposed and that a different sentence should be imposed.
Did Judge Walker err when sentencing Mr Emery?
Home invasion
[25] Mr Emery says Judge Walker erred when he described the offending as involving a home invasion.
[26] It is accepted that when Mr Emery and his co-offenders arrived at the complainant’s property he asked the complainant if they could come in. The complainant agreed. Mr Emery says he was therefore lawfully in the complainant’s home and this was not a case of home invasion.
[27] Section 9(1)(b) of the Sentencing Act 2002 provides:
9 Aggravating and mitigating factors
(1) In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:
...
(b) that the offence involved unlawful entry into, or unlawful presence in, a dwelling place.
...
[28] I accept that Mr Emery’s offending did not involve unlawful entry into the complainant’s home. However, once Mr Emery and his co-offenders demanded the complainant hand over his property, from that moment they were unlawfully present
in the complainant’s home. For this reason, s 9(1)(b) of the Sentencing Act 2002
was engaged,7
although Judge Walker may have erred when he used the phrase
“home invasion” nothing turns on Judge Walker’s reference to “home invasion”.
Guilty pleas
[29] Judge Walker gave Mr Emery a 10 per cent discount for his guilty pleas. Mr Emery says he should have received a discount of 15 to 20 per cent for his guilty pleas. He says there were delays in him entering the guilty pleas because he had initially also been charged with burglary and that the police ultimately dropped this charge.
[30] Mr Emery was charged with demanding with intent to steal on 19 July 2013. He pleaded not guilty on 13 August 2013 and vacated that plea on 17 December
2013. There were eight appearances in the Porirua District Court before Mr Emery pleaded guilty to that charge. When regard is had to the principles articulated by the Supreme Court in Hessell v R, I can see nothing wrong with the 10 per cent discount given by Judge Walker.8
Comparison with other cases
[31] It is an accepted principle of sentencing that those who are being sentenced should receive sentences, so far as is possible, that are consistent with similar sentences imposed on similar offenders for similar offending.
[32] Mr Emery says that when his case is compared to others Judge Walker should have adopted a starting point of 12 months’ imprisonment. Although there is no tariff for demanding with intent to steal, R v Mako provides some guidance for
setting a starting point in relation to this type of offending.9
7 See R v Clifford [2011] NZCA 360 at [37].
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
9 R v Mako [2000] 2 NZLR 170 (CA).
[33] Mr Emery cites comparable cases as R v Clayton, R v Lloyd and Carruth v R, which I have set out the facts of below.10
[34] In R v Clayton the defendant was charged with demanding with intent to steal where he did not threaten or use violence, but one of his companions did in relation to a “street offence”. Mr Clayton was sentenced to six months’ home detention and
125 hours of community work.
[35] In R v Lloyd Ms Lloyd was convicted of demanding with intent to steal where her associates used violence. The offending took place over a time period of a few months where the defendant and her associates attempted to extract money from the victim. Andrews J assessed a starting point of two years and three months’ imprisonment after taking into account the aggravating factors of premeditation, actual and threatened violence, extent of loss and harm, the victim’s vulnerability and the repetitive nature of the offending.
[36] R v Carruth was an appeal against a total sentence for aggravating robbery and demanding with menaces. The appellant had visited the victim at his home with associates and demanded money and items as repayment of a debt. The Court of Appeal did not readjust the concurrent 12 months’ imprisonment sentence for demanding with menaces.
[37] Although these cases provide some guidance in assessing a starting point for a demanding with menace charge, apart from Carruth, the facts of those cases do not account for the aggravating feature of the offending taking place in the victim’s home. However, Carruth offers little guidance for assessing a starting point because
the demanding with menaces charge in that case was not adopted as the lead offence.
[38] A more appropriate comparable case is that of Vujcich v Police.11
It was an
appeal against cumulative end sentences of 21 months’ imprisonment for a charge of demanding with menaces and four months’ imprisonment for a charge of driving
while disqualified. Lang J dismissed the appeal citing that the starting point adopted
10 R v Clayton DC Palmerston North CRI-2011-054-412, 12 December 2011; R v Lloyd HC Auckland CRI-2009-090-12003, 9 December 2010; Carruth v R [2013] NZCA 296.
11 Vujcich v Police [2013] NZHC 1747.
of two years and eight months’ imprisonment after taking into account the aggravating factors was appropriate. The aggravating features were that it involved offending in the victim’s home by three men which was premeditated and involved actual violence.
[39] When regard is had to the fact that Mr Emery has an extensive list of criminal convictions dating back to 2003 which include burglary, assault, aggravated robbery and theft, it was entirely appropriate for Judge Walker to have adopted a starting point of two years’ imprisonment.12
Totality
[40] Judge Walker was correct when he concluded that the sentences for demanding with intent to steal and driving while disqualified/breach of release conditions needed to be served cumulatively. The two sets of offences were unconnected and reflected quite distinct and separate instances of criminal offending.
[41] However, it is also necessary to assess whether a sentence of two years and three months’ imprisonment would be “wholly out of proportion to the gravity of [Mr Emery’s] overall offending”.13
[42] In my assessment, when viewed in context, a sentence of two years and three months’ imprisonment would not be a wholly disproportionate response to the totality of Mr Emery’s offending.
[43] A total sentence of two years and three months’ imprisonment: (1) holds Mr Emery accountable for the harm he has done;14
(2) promotes a sense of responsibility in Mr Emery;15
12 See also: Millerchen v Police [2012] NZHC 749; R v Mill HC Wanganui CRI-2010-083-2071,
19 August 2011.
13 Sentencing Act 2002, s 85(2).
14 Section 7(1)(a).
15 Section 7(1)(b).
(3) denounces Mr Emery’s conduct;16
(4) deters Mr Emery and others from similar offending;17
(5) protects society from Mr Emery;18
and
(6) is the least restrictive sentence that could be imposed in the circumstances of this case.19
[44] Accordingly, I believe the appropriate sentence for Mr Emery was the sentence of two years and three months’ imposed by Judge Walker and that there were no errors in the sentence which Judge Walker imposed.
Conclusion
[45] Mr Emery’s appeal against sentence is dismissed.
[46] All sentences and orders made by Judge Walker stand.
D B Collins J
Solicitors:
Cathie Sheat, Barrister & Solicitor, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
16 Section 7(1)(e).
17 Section 7(1)(f).
18 Section 7(1)(g).
19 Section 8(g).
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