Emery v Police - [2014] NZHC 430

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 Respondent

Judgment:

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…

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: [2014] NZHC 430
Decision Date: 11 March 2014

CaseChat Overview and Summary

Robin Huria Emery, the appellant, brought an appeal against his sentence before the High Court of New Zealand against the New Zealand Police, the respondent. Emery had been found guilty of demanding with intent to steal, driving while disqualified, and breaching release conditions, for which he was sentenced to a cumulative total of two years and three months’ imprisonment. Emery appealed the sentence on the basis that the home invasion should not have been considered as an aggravating factor, that he should have been entitled to a greater discount for his guilty pleas, and that the sentence imposed for demanding with intent to steal was manifestly excessive when compared to similar cases.

The court considered whether there was an error in the sentence imposed by Judge Walker, and if so, whether a different sentence should be imposed. The court held that there was no error in the sentence imposed by Judge Walker. The court held that there was no error in considering the home invasion as an aggravating factor, as Emery and his co-offenders were unlawfully present in the complainant’s home from the moment they demanded the complainant hand over his property. The court held that the 10 per cent discount given by Judge Walker for Emery’s guilty pleas was not an error, and that the starting point of two years’ imprisonment was appropriate in light of Emery’s extensive criminal history. The court also held that the sentence of two years and three months’ imprisonment was not disproportionate to the gravity of Emery’s overall offending.

The court dismissed Emery’s appeal against sentence, holding that all sentences and orders made by Judge Walker stand.

Orders