R v Emery

[2019] NZHC 2376

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-003536

[2019] NZHC 2376

THE QUEEN

v

TOPI EMERY

Hearing:	19 September 2019
Appearances:	M McClenaghan for Crown K Gray for Defendant
Judgment:	19 September 2019

SENTENCING NOTES OF DUNNINGHAM J

[1]    Topi Emery, you are here for sentencing today in relation to one charge of assault with a weapon.

Facts of the offending

[2]    You were charged with this assault because of what happened on 1 January this year. On that day, you were with the victim at your home in Linwood, Christchurch. Your behaviour had become increasingly erratic on that day. In the middle of the afternoon, you picked up a bicycle seat by the seat post, you held it like a hammer, and you struck the victim in the head with the back of the bicycle seat approximately three times. The victim suffered swelling and bleeding to the head.

R v EMERY [2019] NZHC 2376 [19 September 2019]

Starting point

[3]    The starting point for sentencing was discussed by Osborne J when he gave you a sentencing indication in August this year. As he pointed out, this offence carries a maximum penalty of five years’ imprisonment. There are no guideline judgments for sentencing on this charge, but the lawyers have referred me to some decisions which have helped me.1

[4]    I accept, as Osborne J pointed out, that there was one aggravating feature of your offending. That is your assault involved an attack to the victim’s head. There are no mitigating features of the offending. By analogy with the decision in Stone v R, where a starting point of 13 months’ imprisonment was adopted, I am satisfied that the starting point of 12 months’ imprisonment adopted by Osborne J was appropriate.

Personal aggravating and mitigating factors

[5]    You are now 34 years of age and you have a history of offending which goes back to when you were a teenager. Now most of it is minor offending, but you do have convictions for common assault. You have convictions for committing burglary with a weapon and for aggravated robbery which resulted in you receiving the first two of your three strike warnings. I accept, as your lawyer has said in submissions, that your offending history is likely to have been addressed by your unaddressed psychological issues. However, as this is further violent offending and you do not seem to have responded to previous warnings, I still consider an uplift of one month to be appropriate, taking your sentence to 13 months.

Mitigating factors

[6]    The next issue is whether I should reduce the sentence to reflect any personal mitigating factors relating to you. When you received your sentence indication, Osborne J had affidavits before him from both you and your mother outlining your background and circumstances. However, at that stage he was not prepared to quantify what discount might be appropriate. I now have a pre-sentence report, along with the

1      Mohib v Police [2017] NZHC 123; Stone v R [2011] NZCA 558; Blondell v Police [2012] NZHC 533.

report from Odyssey Community Services, an updated assessment from them dated  3 September 2019, your letter to the Court dated 7 August 2019 and a letter from Drug Arm, Christchurch which runs a support group at the prison for individuals wanting to make changes to their lifestyle.

[7]    The pre-sentence report identifies that you are at a high risk of reoffending, not only because of your extensive offending history, but also because of your ongoing resistance to engaging in meaningful treatment for your substance abuse related issues. The report also makes it clear that you show no remorse for your offending, although I note that your lawyer today does suggest you are remorseful. You tended, though, in the report, to minimise your offending and you blamed the victim for it occurring. Despite this, I accept that you have got a genuine desire to be a better father to your children, but it does suggest your solutions are rather unrealistic. For example, you rejected residential treatment for your substance abuse saying you will “just not do it anymore”. The report writer assesses that addressing your substance abuse issues is going to be a more difficult goal than you are willing to acknowledge, and recommends that you are assessed for alcohol and drug issues and complete treatment as recommended on your release.

[8]    The other information I have confirms that you have been formally diagnosed as suffering from post-traumatic stress disorder (PTSD), arising from your experience of being trapped in the collapsed CTV building during the Christchurch earthquake for several hours. You also are in the early stages of seeking support from ACC in relation to a sensitive claim from your childhood. The affidavit from your mother outlines material to support that claim along with many other destabilising and traumatic events which you experienced during your childhood. These include a boating accident when you were about eight years of age when two of your younger siblings died and you were trapped in the boat. It also refers to disruption to your family when your father was sentenced to a long term of imprisonment, and to you entering a relationship with someone whom your mother describes as an alcoholic and abusive towards your children. Your lawyer has filed a letter from a psychologist which says you will need intensive and ongoing treatment to address your PTSD and to learn strategies from improving your relationships, mental health and wellbeing.

[9]    It is hard to imagine a more traumatic upbringing than the one that is described in the documents your lawyer has provided and in the pre-sentence report. I accept that your unresolved PTSD is sufficiently likely to be linked to your inability to handle situations where conflict arises, for there to be some modest discount allowed in sentence to reflect that.

[10]   However, I am concerned that you do not show a genuine willingness to change your ways and to address the issues, and that has been demonstrated by your unwillingness to engage in programmes to address your substance abuse. You are 34. You have a history of offending which goes back well beyond 2011. It is not enough to have good intentions to be a better father, you actually need to do something to make yourself a better father.

[11]   I am prepared to reduce the sentence by one month to reflect your childhood trauma and unresolved PTSD. That takes your sentence back to 12 months, from that a further 25 per cent will be taken off to reflect your guilty plea and that would result in a final sentence of nine months’ imprisonment.

[12]   In my view, as I discussed with the lawyers today, it is also important to impose conditions on your release to help you address these issues. These were suggested in the pre-sentence report and you heard me discuss them with your lawyer today. These are conditions which are designed to reduce your risk of re-offending and facilitate your rehabilitation and reintegration.

[13]   So, I therefore intend to impose standard release conditions on you2 as well as the special conditions recommended in that report.3

[14][Mr Emery if you could please stand now.]

[15]   Mr Emery you are sentenced to nine months’ imprisonment. I impose the standard release conditions on you along with the following special conditions:

2      Under s 14 Parole Act 2002.

3      Under s 15 Parole Act 2002.

(a)you are to complete an assessment for alcohol and drug issues and complete treatment as recommended as a result of that assessment;

(b)you are not to possess or consume alcohol or drugs;

(c)you are not to contact the victim of the offending.

[16]   As you are close to being time served, the conditions I am imposing on you will not expire until six months after your sentence expiry date.4

Solicitors:

Raymond Donnelly & Co., Christchurch Public Defence Service, Christchurch

4      Under s 93(2A)(c).