Gemmell v The King - [2024] NZHC 1120

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-000019

[2024] NZHC 1120

BETWEEN
PETA CHRIS SHANNON GEMMELL

Appellant

AND

THE KING

Respondent

Hearing: 7 May 2024

Appearances:

M Lynch for Appellant J Lewis for Respondent

Judgment:

8 May 2024

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang On 8 May 2024 at 12.00 noon
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Hamilton Legal Ltd, Hamilton Woodward Chrisp, Gisborne

GEMMELL v R [2024] NZHC 1120 [8 May 2024]

[1] Mr Gemmell pleaded guilty to a charge of burglary. On 14 February 2024, Judge B A Crowley sentenced him to two years five months imprisonment on that charge.1 The Judge also imposed a cumulative sentence of four months imprisonment on charges that were unrelated to the burglary charge.

[2] Mr Gemmell appeals against the sentence imposed on the burglary charge. He contends the Judge erred in failing to provide him with sufficient discounts to reflect mitigating factors personal to him. He says this resulted in the Judge imposing an end sentence that was manifestly excessive.

The charge

[3] Mr Gemmell and his three co-defendants originally faced a large number of charges arising out of an incident that occurred on 4 December 2022. At sentencing the Crown offered no evidence on all charges other than the burglary charge.

[4] On the afternoon of 4 December 2022 Mr Gemmell and three other patched members of the Rogue chapter of the Mongrel Mob drove to a residential address in Hamilton in two vehicles. Mr Gemmell and one other member of the group, Mr Reti, were wearing gang patches when they went to the address.

[5] Mr Gemmell and Mr Reti went to the door of the address and initially had an amicable conversation with a female occupant of the address. This related to a debt allegedly owing by that person to the gang. She said she had already paid the debt in full but Mr Reti told her he needed more money to pay for fuel. The female refused to allow Mr Gemmell and Mr Reti to enter the address when Mr Reti asked her whether they could continue their discussion inside the address.

[6] The conversation then continued. A short time later Mr Chase, another of Mr Gemmell’s co-defendants, got out of the vehicle and entered the address by pushing past Mr Gemmell, Mr Reti and the female occupant of the address. He was then joined inside the address by Mr Gemmell, Mr Reti and the fourth member of

1 R v Gemmell [2024] NZDC 4714.

Mr Gemmell’s group, Mr Huata. The four men then began searching both the address and the people who were present inside the dwelling.

[7] Three of the occupants locked themselves in a bedroom due to their fears about what was occurring. Mr Gemmell’s group responded by kicking the bedroom door down and searching the room in which the occupants were hiding. During the ensuing search…

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

Details

AGLC: Gemmell v The King [2024] NZHC 1120
Case: [2024] NZHC 1120
Decision Date: 8 May 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Lang presided over the appeal of Peta Chris Shannon Gemmell against his sentence for burglary. Gemmell had pleaded guilty to the charge and was sentenced by Judge B A Crowley to two years and five months imprisonment. Gemmell appealed the sentence, arguing that the Judge had erred by not adequately accounting for mitigating factors, resulting in an excessively high sentence.

The legal issues before the court were whether the Judge correctly applied the discounts for Gemmell's guilty plea and other mitigating factors. Specifically, Gemmell's counsel argued that the discount for his guilty plea should be 25 per cent rather than 15 per cent, and the discount for other mitigating factors should be 30 per cent instead of 15 per cent. The Crown accepted that Gemmell should receive the same discount as his co-defendants for their guilty pleas, but disputed the extent of the discount for other mitigating factors.

Justice Lang found that Gemmell should receive a discount of 20 per cent for his guilty plea, aligning with the approach taken in the sentencing of his co-defendants. However, the court determined that the 15 per cent discount for other mitigating factors was appropriate, considering Gemmell's socio-economic background, personal circumstances, and his entrenched gang involvement. The court concluded that the mitigating factors did not warrant a higher discount, especially given Gemmell's senior position within the gang.

As a result, the appeal was allowed to the extent that the discount for the guilty plea was increased to 20 per cent, leading to a revised sentence of two years and three months imprisonment for the burglary charge. The cumulative sentence for the unrelated charges remained unchanged.

Orders