Gemmell v The King
[2024] NZHC 1120
•8 May 2024
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 of the address, Mr Gemmell’s group took several items of value. These included three cellphones, a tablet, a silver watch and approximately $2,000 in cash.
[8] The occupants of the address had installed a CCTV security system. Mr Gemmell’s group removed the hard drive from the system to ensure there was no CCTV footage of their presence at the address.
[9] Whilst this was going on, one of the occupants managed to escape from the house and obtain assistance. He and other persons called the police. By the time the police arrived, Mr Gemmell’s group had placed the stolen property in their vehicles. They departed at high speed when they saw the police arriving.
The sentence
[10] In setting the starting point for the offending, the Judge was guided by the starting points selected by the Judges who had sentenced Mr Reti and Mr Chase.2 Those Judges had selected a starting point of three years six months imprisonment.3 Judge Crowley considered this was also the appropriate starting point for the sentence to be imposed on Mr Gemmell.4
[11] The Judge then noted that Mr Gemmell had entered his guilty pleas on 9 November 2023. Mr Chase and Mr Reti had entered guilty pleas three weeks earlier, on 20 October 2023. Mr Reti had received a discount of 20 per cent to reflect his guilty plea whilst Mr Chase had received a discount of 15 per cent. Judge Crowley
2 Mr Huata had not been sentenced by the time the Judge sentenced Mr Gemmell. Mr Lewis advised me during the hearing that Mr Huata has now been sentenced. The Judge in his case took a starting point of three years six months imprisonment and applied a discount of 20 per cent to reflect the guilty plea.
3 R v Reti [2023] NZDC 26670 at [10]; R v Chase [2024] NZDC 1246 at [7].
4 R v Gemmell, above n 1, at [7].
followed the approach taken by the Judge who sentenced Mr Chase and applied a discount of 15 per cent.
[12] The Judge then applied a further discount of 15 per cent to reflect remorse and other mitigating factors identified in a report tendered to the Court under s 27 of the Sentencing Act 2002.
[13] This process led to the end sentence of two years five months imprisonment on the charge of burglary.
The appeal
[14] On Mr Gemmell’s behalf, Mr Lynch does not take any issue with the starting point selected by the Judge. However, he contends the Judge erred by applying inadequate discounts to reflect Mr Gemmell’s guilty plea and other mitigating factors identified in the s 27 report. These related to his upbringing and personal circumstances. They also included expressions of remorse for the offending.
The discount for guilty plea
[15] As I have already noted, the Judge who sentenced Mr Chase applied a discount of 15 per cent to reflect his guilty plea. Mr Chase appealed against his sentence and his appeal was heard by Walker J on 5 March 2024. This was approximately one month after Judge Crowley had sentenced Mr Gemmell.
[16] In a judgment delivered on 8 March 2024, Walker J said that she considered it to be anomalous that Mr Reti and Mr Chase, who had pleaded guilty to the same charge on the same day, should receive different discounts for their guilty pleas.5 This occurred despite the fact there was no discernible difference in their respective roles in the offending and no other apparent reason for them to be treated differently. Walker J allowed the appeal and applied a discount of 20 per cent for the guilty plea to reflect parity principles between defendants.6
5 Chase v R [2024] NZHC 494 at [32].
6 At [34].
[17] Mr Lynch contends on Mr Gemmell’s behalf that he should receive a discount of 25 per cent. However, there is no justification for Mr Gemmell receiving a greater discount than Messrs Reti and Chase, particularly given the fact that he entered his guilty plea at a later date. It would merely create a further disparity issue in relation to the discounts applied in the cases of Messrs Reti and Chase.
[18] As the Judge noted, Mr Gemmell entered his guilty plea approximately three weeks after Messrs Reti and Chase entered their pleas. Mr Lynch advised me that he did not have the opportunity to take instructions from Mr Gemmell on the day Messrs Reti and Chase entered their pleas. He therefore asked for the charge to be adjourned to 9 November 2023, at which point a guilty plea was duly entered. In those circumstances the Crown accepts that Mr Gemmell should have received the same discount as them. This is an appropriate concession given that Judge Crowley expressly followed the approach taken by the Judge who sentenced Mr Chase. I therefore agree with the Crown that the appeal should be allowed to the extent that Mr Gemmell should receive a discount of 20 per cent for his guilty plea.
Discount for other mitigating factors
[19] Mr Lynch contends the Judge ought to have provided Mr Gemmell with a discount of 30 per cent to reflect remorse and other mitigating personal circumstances identified in the s 27 report.
[20] Having read the s 27 report, I agree that the Judge was correct to apply a discount to reflect the mitigating factors identified in it. Mr Gemmell has suffered socio-economic depravation, physical violence, disruptive school attendance, addiction issues and entrenched gang membership.
[21] The report also identifies pro-social factors that suggest Mr Gemmell has rehabilitative prospects. These include the fact that Mr Gemmell is currently in a stable relationship with his partner and their child. Mr Gemmell’s partner is also shortly to give birth to another child. Ordinarily, the development of a stable family relationship would be a positive sign of rehabilitative prospects. In Mr Gemmell’s case those prospects are clouded to a significant degree by his apparent determination to remain entrenched in the gang environment. He currently holds the senior position
of Sergeant at Arms in his chapter. Continued involvement in Mongrel Mob activities at a senior level is likely to be a significant obstacle to Mr Gemmell’s long term rehabilitative prospects.
[22] Taking these factors into account I see no error in principle with the level of discount the Judge selected to reflect the mitigating factors identified in the s 27 report. I note also that it is the same level of discount as that given by the Court of Appeal in Carr v R, one of the cases on which Mr Gemmell relies.7
Result
[23] The appeal against sentence is allowed to the extent that the discount to be given for the guilty plea is increased to 20 per cent.
[24] The deduction of discounts totalling 35 per cent from the starting point of three years six months imprisonment results in an end sentence of two years three months imprisonment. That sentence is substituted for the existing sentence of two years five months on the charge of burglary. The cumulative sentence imposed on the remaining charges is unaffected by this decision.
Lang J
7 Carr v R [2020] NZCA 357 at [73].
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