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Emery v The Queen

Emery v The Queen

Case [2021] NZCA 158 21 May 2021

Appeal

Admissibility of Evidence

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA601/2019
[2021] NZCA 158

BETWEEN	KELLY JAMES EMERY Appellant
AND	THE QUEEN Respondent

CA49/2020
BETWEEN	LANCE WAKA WILLIAMS Appellant
AND	THE QUEEN Respondent

Hearing:	22 March 2021
Court:	Miller, Brewer and Dunningham JJ
Counsel:	S L McColgan for Appellant CA601/2019 D S Niven for Appellant CA49/2020 E J Hoskin for Respondent
Judgment:	21 May 2021 at 12.00 pm

JUDGMENT OF THE COURT

A The conviction appeals are dismissed.
BThe sentence appeals are allowed. The sentences are quashed and the sentences remitted to the High Court for re-sentencing in light of this judgment. The appellants are remanded in custody to appear in the High Court at Auckland on 9 June 2021 at 9.00 am.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Messrs Emery and Williams are two of five men who faced trial on charges relating to two aggravated robberies and conspiring to commit another during a spree that began on 5 March 2018 and ended with their arrests 23 days later. The robbers targeted a MoneyShop and an ACM security van using stolen cars and a firearm, obtaining a total of approximately $109,779.10 in cash.
The principal trial issue on the completed offences was identity. On the conspiracy charge the appellants denied that what was being planned was a robbery, or that they were parties to it. The appellants were found guilty of the two charges of aggravated robbery, and Mr Williams was also found guilty of one charge of unlawful use of a motor vehicle and one charge of conspiracy to commit an aggravated robbery.[1] Messrs Williams and Emery were sentenced to 12 and 11 years’ imprisonment respectively, both with a minimum period of imprisonment (MPI) of 50 per cent.[2]
[1]Mr Emery also pled guilty to two charges of unlawful taking of a motor vehicle and one charge of unlawful possession an explosive, being shotgun cartridges.
[2]R v Williams [2019] NZHC 2614.
They appeal their convictions, alleging overreach by the Crown and errors by the trial Judge, and their sentences, saying the starting points were too high, the Judge wrongly refused to adjourn sentencing for cultural reports, and it was wrong to impose MPIs. The Crown contests all grounds of appeal except the issue relating to the cultural reports, inviting us to remit the appellants for resentencing or call for reports and sentence the appellants ourselves.

Narrative facts

The Crown case was that sometime before 5 March 2018, the appellants entered a conspiracy with Kavae Teina (allegedly the ringleader), Benny Muraahi and Adrian Tepania to commit aggravated robberies using a firearm. They acquired a double-barelled shotgun, blue overalls, balaclavas and latex gloves.
The offending began on 5 March 2018 when a Subaru car was stolen. It is not in dispute that Mr Emery and Mr Tepania stole it. The car was driven to a MoneyShop in Takanini and reversed into a car park. Two men got out, wearing disguises, while a…

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 The Queen

Details

AGLC: Emery v The Queen [2021] NZCA 158
Case: [2021] NZCA 158
Decision Date: 21 May 2021

CaseChat Overview and Summary

The appeals in Emery v The Queen and Williams v The Queen concern the convictions and sentences of Kelly James Emery and Lance Waka Williams, who were convicted of two aggravated robberies, and Williams was also convicted of unlawful use of a motor vehicle and conspiracy to commit aggravated robbery. The appellants challenge their convictions, alleging errors by the Crown prosecutor and the trial Judge, and their sentences, arguing that the starting points were too high, the Judge wrongly refused to adjourn sentencing for cultural reports, and it was wrong to impose minimum periods of imprisonment (MPI). The Crown contests all grounds of appeal except the issue relating to the cultural reports.

The Court dismissed the conviction appeals, finding that the jury would have reached the same verdicts even if the alleged errors had not occurred. The Court allowed the sentence appeals, finding that the sentences must be quashed and remitted to the High Court for re-sentencing in light of this judgment. The appellants were remanded in custody to appear in the High Court at Auckland on 9 June 2021 at 9.00 am.

The Court found that the prosecutor's remarks about the defendants being "known criminal associates" did not give cause for concern as they were made in the context of the defendants being accused of joint criminal offending. The Court also found that the Judge did not breach her duty to summarise the defence cases as the jury understood the defences and the jury's verdicts indicated that they paid close attention to the evidence. The Court held that the Judge gave a clear direction to the jury on the limited use of a communication by Mr Muraahi, and the prosecutor's references to the absence of other reasonable explanations did not risk reversing the onus of proof.

The Court found that the appellants must be re-sentenced, and the Judge was entitled to be concerned about delaying sentencing. The Court was prepared to allow the appellants an opportunity to remedy their omission by supplying cultural reports. The Court held that the sentences should be done by the trial Judge who heard the evidence and is best placed to gauge culpability, and the exercise will traverse all sentencing considerations because the appellants contend that the totality-adjusted starting points were too high and they will also rely on cultural reports to increase personal mitigation and eliminate the MPIs.

Orders