Gempton v R - [2011] NZCA 349

IN THE COURT OF APPEAL OF NEW ZEALAND

CA703/2010
[2011] NZCA 349

BETWEEN ADAM ROBERT GEMPTON
Appellant

AND THE QUEEN
Respondent

Hearing: 14 July 2011

Court: O'Regan P, Arnold and Stevens JJ

Counsel: R G Glover for Appellant
F E Guy Kidd and M Cooke for Respondent

Judgment: 27 July 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by Arnold J)

Introduction

The appellant, Mr Gempton, was convicted of murder following a jury trial. Chisholm J sentenced him to life imprisonment with a minimum period of imprisonment of ten years.[1] Mr Gempton appeals against his sentence, on the basis that the imposition of life imprisonment was “manifestly unjust” within the meaning of s 102 of the Sentencing Act 2006.

Background

[1] R v Gempton HC Christchurch CRI-2009-009-13468, 13 October 2010.

The 24 year old victim, Timothy Constable, had been in a somewhat volatile relationship with 18 year old Gisinda Coombs for around five months. Ms Coombs decided that she needed a break from Mr Constable and went to stay at her family home. There was a gathering there the following evening, at which Mr Gempton, then 20, his partner and their baby daughter were present.
The people who had gathered began drinking about 5pm. During the course of the evening, Mr Constable sent text messages to Ms Coombs, to the effect that he wanted to come round and see her. Ms Coombs was receptive to this, although some of the text messages that passed between the two were abusive in nature. The others who were present at the address were aware that Mr Constable might visit the house in order to see Ms Coombs and were opposed to her seeing him. Some of them exchanged abusive text messages with Mr Constable, who responded by threatening to blow up the house and kill Ms Coombs’ sister.
Mr Gempton knew Mr Constable. He knew that he was capable of violence and had seen him shoot at a car whose occupants had annoyed him. The evidence indicated that Mr Gempton thought that Mr Constable had “narked” on a friend. Sometime before Mr Constable came to the house, Mr Gempton went into the kitchen, took a knife and put it into his back pocket. He was heard to say that if Mr Constable came to the house, he would stab him, tie him up and put him in the boot of his car. Mr Gempton also sent a text message to an associate saying that he was going to stab Mr Constable.
Mr Constable went to the house by car with his father in the early morning. Mr Constable had a realistic-looking replica firearm with him, although that does not seem to have featured in what followed. Ms Coombs went out to see him, to the consternation of the others at the house. Mr Constable tried to get Ms Coombs into the car. Some of those present thought that Mr Constable was attempting…

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 Gempton v R

Details

AGLC: Gempton v R [2011] NZCA 349
Case: [2011] NZCA 349
Decision Date: 27 July 2011

CaseChat Overview and Summary

Adam Robert Gempton appeals against his sentence of life imprisonment with a minimum of ten years, imposed after he was convicted of the murder of Timothy Constable. The appeal is based on the argument that the sentence is "manifestly unjust" under section 102 of the Sentencing Act 2006. The Court of Appeal is required to determine whether the sentence of life imprisonment is manifestly unjust, considering the circumstances of the offence and the offender. The Court of Appeal must undertake this assessment against the backdrop of the purposes of sentencing as outlined in the Sentencing Act, with particular attention to sections 7, 8, and 9. The appeal hinges on whether the Court of Appeal agrees with the trial judge that the sentence of life imprisonment is justified by the purposes of denunciation and deterrence, or whether the appellant’s youth and the mitigating circumstances of the case render such a sentence manifestly unjust.

The Court of Appeal finds that the trial judge was entitled to his view that the circumstances of the case did not render a sentence of life imprisonment clearly unjust. The Court notes that there was evidence of premeditation on the part of Mr Gempton, who armed himself with a knife in anticipation of Mr Constable’s arrival and made threats to stab him. The Court acknowledges that Mr Gempton's actions were influenced by fear and the provocative conduct of Mr Constable, but it concludes that these factors do not outweigh the need for denunciation and deterrence. The Court of Appeal considers that the case exhibits characteristics frequently seen in serious assaults and killings, involving young people who engaged in provocative and threatening conduct, escalating into physical violence and death. The Court of Appeal agrees with the trial judge's assessment that the sentence of life imprisonment is appropriate and does not constitute a manifestly unjust outcome.

The appeal against sentence is dismissed.

Orders