1 May 2023 Further submissions received 29 May 2023
Court:
Courtney, Hinton and Churchman JJ
Counsel:
E P Priest for Appellant L J Sullivan for Respondent
Judgment:
5 September 2023 at 10.30 am
JUDGMENT OF THE COURT
AThe application for leave to appeal out of time is granted.
BThe application for leave to adduce new evidence is declined.
CThe appeal against sentence is allowed.
D The sentence imposed in the High Court of four years and two months’ imprisonment is set aside. A sentence of three years and five months’ imprisonment is substituted.
EThe order that Mr Gemmell serve his sentence without parole is set aside.
On 10 May 2022, after pleading guilty to charges of aggravated robbery[1] and kidnapping,[2] Nuka Gemmell was sentenced by Davison J in the Auckland High Court to four years and two months’ imprisonment.[3] As both charges were second strike offences, a non-parole order was made under s 86C(4)(a) of the Sentencing Act 2002 (the Act).
[1]Crimes Act 1961, s 235(b); maximum penalty 14 years’ imprisonment.
[2]Section 209; maximum penalty 14 years’ imprisonment.
Mr Gemmell seeks leave to appeal his sentence, on the ground that it is manifestly excessive. His initial appeal grounds were that the starting point was too high for his level of involvement, the uplift for the kidnapping charge was too high and the Judge did not allow adequate discounts to reflect his background, bipolar diagnosis, or time spent on electronically monitored (EM) bail.
An additional and significant appeal point was raised for the first time in oral submissions at the hearing. Mr Gemmell’s co-offender, Mr Te Pou, who was the lead offender, was not sentenced until after the repeal of the three strikes legislation. He was accordingly eligible for parole despite also being a second strike offender. Mr Gemmell says the consequent discordant result between the sentences is disproportionately severe, such that, like Mr Te Pou, he should be eligible for parole. We received further written submissions post-hearing on this issue.
Leave to appeal out of time
Sentence appeals must be brought within 20 days after the date of the sentence appealed against.[4] Mr Gemmell’s appeal was filed on 3 November 2022 — almost five months late.[5] Leave is not opposed. There is no prejudice to the Crown and the appeal raises an important issue. We grant leave to appeal out of time.
Leave to adduce fresh evidence
[4]Criminal Procedure Act 2011, s 248(2).
[5]The due date for filing the Notice of Appeal was 8 June 2022.
Mr Gemmell seeks to adduce new evidence, being a report of Dr van Rensburg, a clinical psychologist. The key purpose of adducing the report is to support a submission that Mr Gemmell’s culpability was reduced by virtue of his…
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 Gemmell v The King
Sign in free to access the full text
Details
AGLC
Gemmell v The King [2023] NZCA 420
Case
[2023] NZCA 420
Decision Date
CaseChat Overview and Summary
In Gemmell v The King, Nuka Gemmell appealed against his sentence of four years and two months' imprisonment for aggravated robbery and kidnapping, arguing it was manifestly excessive. His co-offender, Mr Te Pou, was sentenced later and was eligible for parole, while Gemmell was not due to the three strikes legislation. The Court of Appeal considered several issues, including the starting point, discounts for time on electronically monitored (EM) bail, and the applicability of section 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).
The Court found the starting point was too high, given Gemmell's lesser role in the offending compared to Mr Te Pou. The Court also allowed a discount for time spent on EM bail, which the Judge had declined to do. The Court found the overall sentence to be disproportionately severe under section 9 of the NZBORA, as it resulted in Gemmell being ineligible for parole while Mr Te Pou was eligible. This outcome was inconsistent with the parity principle and caused shock and revulsion. The Court allowed the appeal against sentence, substituting a sentence of three years and five months' imprisonment with no restriction on eligibility for parole. The Court also set aside the order that Gemmell serve his sentence without parole.