R v Anaru-Emery - [2020] NZHC 866

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.…

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 R v Anaru-Emery

Details

AGLC: R v Anaru-Emery [2020] NZHC 866
Case: [2020] NZHC 866
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, the case of The Queen v Jason Whero Anaru-Emery was heard for sentencing following a guilty verdict on charges of kidnapping and assaulting a female. The court found Anaru-Emery guilty of kidnapping and assaulting Halayna Wagstaff, events that culminated in a car accident leading to her death. The court did not convict him of manslaughter due to reasonable doubt about his role as the driver. The legal issues involved setting a starting point for sentencing, adjusting it based on aggravating and mitigating factors, and determining the appropriate sentence. The court considered the severity of the kidnapping, the vulnerability of the victim, and the contribution of Anaru-Emery's actions to the fatal outcome, alongside his youth and gang affiliations. The court concluded that a starting point of two years and nine months imprisonment was appropriate, with a six-month uplift for the additional assault charges and a 30% discount for personal mitigating factors and a 20% discount for his guilty plea. The final sentence was 22 months imprisonment, to be served concurrently with sentences for the additional assault charges, subject to special conditions of release including restrictions on alcohol and drug use and requirements for treatment and counselling.

Final orders: Anaru-Emery is sentenced to 22 months imprisonment for kidnapping, six months for a representative male assaults female charge, and six months for male assaults female, all to be served concurrently, with special conditions of release.

Orders