R v Anaru-Emery
[2020] NZHC 866
•30 April 2020
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2018-070-005243
[2020] NZHC 866
THE QUEEN v
JASON WHERO ANARU-EMERY
Hearing: 30 April 2020 Counsel:
A J Pollett for Crown
R Stevens for defendant
Judgment:
30 April 2020
SENTENCING NOTES OF KATZ J
Solicitors:Pollett Legal Limited, Office of the Crown Solicitor, Tauranga Public Defence Service, Tauranga
R v ANARU-EMERY [2020] NZHC 866 [30 April 2020]
Introduction
[1] Mr Anaru-Emery, you appear for sentence today having been found guilty, following a jury trial, of one count of kidnapping and one count of male assaults female. At the request of your lawyer I did not enter convictions on those charges at the end of trial. I enter them now.
[2] Kidnapping carries a maximum sentence of fourteen years’ imprisonment.1 Male assaults female carries a maximum sentence of two years’ imprisonment.2
[3] A conviction for kidnapping would usually require that you be given a first strike warning under the three strikes regime. That only applies, however, for offenders aged 18 and over at the time of the offending. As you were aged only 17 at the time of the offending, the three strikes regime does not apply.
[4] You have also pleaded guilty, at the outset of this morning’s hearing, to one further charge, being a representative charge of male assaults female. I will also sentence you on that charge today.
Facts
[5] First, I will briefly summarise the facts relating to the representative male assaults female charge. I will then outline the events of 21 July 2018, which were the focus of the trial.
[6] You were in an on again, off again, relationship with Halayna Wagstaff for several years. The relationship started again in January 2018. Between then and July of that year, when Halayna died tragically in a car accident, you assaulted her on numerous occasions. These assaults involved punching, kicking, slapping, biting, and other forms of physical violence. They were often triggered by your jealousy and insecurity, particularly if you were under the influence of alcohol or cannabis. You not only assaulted Halayna at home, but also when the two of you were together in motor vehicles. On one occasion you punched her in the side of the head when she
1 Crimes Act 1961, s 209(b).
2 Crimes Act 1961, s 194(b).
was driving and gave her a black eye. Your guilty plea to a representative charge of male assaults female this morning relates to these various assaults.
[7] On the afternoon of 21 July 2018, you had an argument with Halayna, during the course of which you tossed her around the room, pinned her to the wall, and dragged her around. These events gave rise to the charge of male assaults female that was heard at trial, and which the jury found you guilty of.
[8] Later that day you and Halayna attended a party together. You were in an angry mood and were verbally aggressive towards other party-goers. Halayna decided to take you home and you went willingly. Halayna was driving when you left the party, and you were in the passenger seat. While driving along Jellicoe Street in Te Puke, Halayna pulled the car over to the side and got out. She walked briskly away from the car, across the central traffic island, to the other side of the road. You gave chase, caught up to her, and forcibly dragged her back to the car. She resisted your attempts to drag her back and struggled hard to get away from you. She was no match for your physical size and strength, however, and you forced her back across the traffic island and into the driver’s side of the car. Witnesses at the trial said that she appeared to be angry and upset. You got in after her, also through the driver’s side door. These events form the basis of your conviction for kidnapping.
[9] Not long afterwards the car drove off and travelled at speed for a couple of minutes before the driver lost control and crashed. Halayna was fatally injured and died at the scene.
[10] Mr Anaru-Emery, only two people know what went on inside that car that night, including why Halayna got out of the car and tried to get away from you, why the car sped off after you had forced her back in, and why the driver lost control and crashed. Tragically, one of those two people is now dead. You have claimed to various people, including the writer of your pre-sentence report, that you cannot recall what happened that night. I am somewhat sceptical regarding that claim.
[11] The Crown case at trial was that you were the driver at the time of the crash. As a result, you were charged with manslaughter. I discharged you on the manslaughter charge at the end of the Crown case, however, as the Crown’s ESR evidence raised a reasonable doubt as to whether you were the driver. I was satisfied that no properly instructed jury could conclude otherwise. I therefore assume, for sentencing purposes today, that you were not the driver.
Setting a starting point
[12] I must first set a starting point for your sentence. I will then adjust that starting point to take into account various factors personal to you.
Aggravating features of the offending
[13]The kidnapping charge is the lead, or most serious, charge.
[14] There are three aggravating features of the kidnapping. First, your offending involved the use of actual violence as well as threatened violence.3 In some cases victims are detained without any actual violence being inflicted on them. Here, however, you assaulted Halayna while dragging her to the car.
[15] Second, your victim was vulnerable. The offending occurred in an intimate partner context and you were significantly larger and stronger than Halayna, as was apparent on the CCTV footage.4
[16] Third, there is the harm to the victim. This is by far the most difficult factor to assess in this case. As I have noted, you were discharged on the manslaughter charge because the Crown failed to prove that you were the driver that night. On the other hand, there is overwhelming evidence that Halayna did not want to be in that car with you and desperately tried to get away. She tried as hard as she could to escape, but you dragged her back to the car and forced her inside. If you had not done so, she would almost certainly be alive today. So, in that sense your kidnapping clearly contributed to her death, even though you are not guilty of manslaughter.
3 Sentencing Act 2002, s 9(1)(a).
4 R v Taueki [2005] 3 NZLR 372 at [33](a).
[17] Obviously, however, your actions were not the only contributing factors. A major contributing factor is the way the vehicle was driven. The evidence at trial was that Halayna was generally a cautious and careful driver. If she was the driver that night, then it seems that in her heightened emotional state at the time, following your forcing her back into the car, she drove in a manner that was out of character for her. Whatever the reason why the car was driven in the manner it was, the outcome was tragic for everyone involved.
Victim impact statements
[18] This is probably an appropriate point at which to acknowledge the very deep loss felt by Halayna’s family, some of whom are here in Court today. Halayna’s mother, father, and sister wrote very powerful victim impact statements, which we heard read out in Court today, attesting to the very deep pain that they feel. Halayna’s father said that his life has changed forever. Not a day goes by where he does not shed a tear. He described Halayna as a ray of sunshine, a view that seems to be shared by all who knew and loved her. He regrets that he did not realise that she was in an abusive relationship and was therefore unable to help her.
[19] Halayna’s younger sister said that to her, Halayna was everything. Even though she was only 16 or so at the time, she wonders if she could have done more to prevent Halayna being abused and hurt. She suffers ongoing trauma from the loss of her beloved sister.
[20] Halayna’s mother also records her regret that she did not know that her daughter was in an abusive relationship. She describes a gap that will never be filled and a loss that is never-ending. She acknowledges, however, that Halayna must have seen good in you, and that is why she chose you as her partner. She expressed the hope that you never hurt another human being, or torment yourself, as that is what Halayna would have wanted. Mr Anaru-Emery, that is very good advice and I hope that you take it. You are still young, aged only 18. It was apparent from the evidence at trial that you were deeply traumatised by the loss of your partner and your unborn child. The best tribute you could give to Halayna is to turn away from violence,
particularly in any future relationships you may have. You can best honour Halayna’s memory by being the man she would have wanted you to be.
Starting point
[21] There is no guideline judgment for kidnapping, as the facts of such cases vary widely. Counsel have referred me to several cases that they submit are broadly comparable to yours.5 The starting points in those cases ranged from two years and four months’ imprisonment to two years and nine months’ imprisonment.
[22] The Crown says that your case is more serious than those cases, however, because Halayna would still be alive today if you had not forced her back into the car that night. Ms Pollett submits I should adopt a starting point of three years and nine months imprisonment to reflect this factor. Mr Stevens, on the other hand, submitted that I should take into account only what happened on Jellicoe Street, not what happened afterwards. Viewed in that way, he submits that your case is less serious than the other cases counsel has referred to, and that I should therefore adopt a starting point of two years’ imprisonment.
[23] In my view, it is not appropriate to simply disregard the fact that if you had not forced Halayna back into the car that night, she would still be alive today. On the other hand, you were discharged on the count of manslaughter and your culpability should not be assessed as if you had been convicted of that charge. Taking these factors into account, and with reference to the cases referred to by counsel, I have concluded that a starting point of two years and nine months’ imprisonment would appropriately reflect your culpability.
Uplift for other charges
[24] I now turn to consider what uplift is appropriate to reflect your two convictions for male assaults female. One relates to your assault on Halayna on the afternoon before the car accident. The other charge is a representative charge which relates to a series of other assaults that occurred during the course of your relationship, which I
5 Moffatt v R [2015] NZHC 107; Cassidy-Gugich v R [2016] NZHC 3027; and Heke v R [2016] NZCA 38.
have described previously. Keeping in mind the principle of totality, it is my view that a six-month uplift would appropriately reflect these charges.6
[25]This brings your starting point to three years and three months’ imprisonment.
Personal aggravating and mitigating factors
[26] I now turn to consider your personal circumstances, and whether they warrant any uplift or reduction in your sentence.
Youth and other personal factors
[27] You were only aged 17 at the time of offending and had no previous criminal convictions or citations in the Youth Court. Given your somewhat difficult background, that is a credit to you.
[28] On the other hand, your pre-sentence report notes that you hold gang-supportive attitudes and denied any wrongdoing. You specifically denied ever being violent towards Halayna. The report writer considers that you are at a high risk of reoffending. Since then, however, you have pleaded guilty to a representative charge of male assaults female, which relates to the series of assaults on Halayna, throughout the course of your relationship. Presumably, therefore, you do now acknowledge that you were repeatedly violent towards her, albeit your acknowledgement of wrongdoing is very belated.
[29] In terms of your background, your pre-sentence report notes that you are Māori and grew up in a culturally aware whānau, although the report writer says that you have a low level of desire to explore your cultural identity further within the prison environment. You report that most of your immediate family are associated with the Mongrel Mob gang and identify strongly with Mongrel Mob culture. Realistically, and sadly for you, given that background and the lack of positive role models in your life it was highly likely that you would embark on a similar path, as you have done.
6 In coming to this assessment, I have considered, among other cases, Cunningham v R [2019] NZCA 622, where a twelve-month uplift on a starting point of two years was considered appropriate for a representative charge of male assaults female.
Despite your youth, you are apparently now entrenched in gang culture, and take comfort in your gang identity. Although your offending against Halayna is not directly gang related, I accept that your troubled upbringing has very likely contributed to you having poor communication and interpersonal skills, as evidenced by your frequent resort to violence to resolve interpersonal conflict and to enforce your will.
[30] Overall, it is my view that a discount of 30 per cent is appropriate to reflect the personal factors I have outlined, including most importantly your youth at the time of the offending.
Guilty Plea
[31]The final matter I need to determine is an appropriate guilty plea discount.
[32] Charges were laid against you on 21 December 2018. You offered to plead guilty to the kidnapping charge on 27 May 2019, on the basis that the manslaughter charge was withdrawn. The Crown did not agree to withdraw the manslaughter charge, however. It was theoretically open to you to plead guilty to the kidnapping charge in any event, on the basis that you denied some or all of the alleged particulars and disputed that you were the driver of the car at the time of the accident. I accept, however, that such a course could have posed some challenges given the way in which the charges were framed.
[33] You had a further opportunity to plead guilty to the kidnapping charge after I dismissed the manslaughter charge at trial. You elected not to do so at that stage, however, instead deciding to “take your chances” on the outcome of the jury process. You therefore chose not to acknowledge your wrongdoing when you had an opportunity to do so, albeit at that very late stage. Nevertheless, significant credit is warranted for your offer to plead guilty to the kidnapping charge in May 2019. If that offer had been accepted, it would have avoided the need for a trial and the same outcome would have been achieved as was achieved at trial. You are also entitled to some credit for your guilty plea to the representative male assaults female charge this morning.
[34] On balance I consider that a 20 per cent discount is appropriate in all the circumstances. This brings your end sentence to 22 months’ imprisonment, which is within the home detention range. You do not seek a sentence of home detention, however, for reasons explained in your pre-sentence report.
Sentence
[35] Mr Anaru-Emery, you are sentenced to 22 months’ imprisonment on the kidnapping charge. You are also sentenced to six months’ imprisonment on the representative male assaults female charge and six months’ imprisonment on the male assaults female charge relating to the assault on the afternoon of 21 July 2018. The sentences are to be served concurrently. I impose the special conditions of release recommended in the pre-sentence report namely:
(a)You are not to possess, consume or use any alcohol or drugs not prescribed to you.
(b)You are to attend and complete an appropriate assessment and recommended alcohol and drug treatment to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by a probation officer.
(c)When released, you are to reside at an address approved by a probation officer and not move to any new residential address without the prior written approval of a probation officer.
(d)You are to attend an assessment for counselling or treatment for any identified reintegrative needs including possibly grief counselling as directed by a probation officer. You are to attend and complete any counselling treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer.
[36]You may stand down.
Katz J
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