R v Emery - [2012] NZHC 391

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-054-003014 [2012] NZHC 391

THE QUEEN

v

ELIM TEKOTAHI EMERY

Counsel: M G Sinclair for Crown
O S Winter for Prisoner

Sentence: 9 March 2012

NOTES ON SENTENCE OF GENDALL J

[1] Elim Tekotahi Emery, you appear for sentence having pleaded guilty to two crimes of wounding with intent to cause grievous bodily harm in respect of two separate victims. Your guilty pleas followed upon the Crown presenting an indictment which included the count of attempted murder. But the Crown offered no evidence on that count and you were discharged. The facts upon which I sentence you are as follows.

[2] Your victims were an 18 year old young lady with whom you had been in a relationship for about six months and also her uncle. You and the young lady lived with your parents in Bulls. On Saturday 3 September 2007 she and your mother went to the home of the girl’s uncle. When they arrived there you were significantly intoxicated, having been consuming alcohol all day from early that morning. Further alcohol was drunk by all people present during the day, and at some stage during the
evening you became agitated and angry. A relative of yours was concerned and took

R V EMERY HC PMN CRI-2011-054-003014 [9 March 2012]

you to another address so as to calm you down. But after returning, by which time others had joined in the drinking and socialising, you engaged in some futile argument between yourself and your female partner. So you went and obtained a boning knife from the kitchen, returned and struck the woman in the neck and upper body with the boning knife at least four times, and when her uncle attempted to restrain you he too was cut twice on the left arm. Your female partner was grievously injured and left semi-conscious. She had four stab wounds to the body, one to the base of her neck, three to the chest and additional lacerations to the forearm in the nature of what are known as defensive injuries. The internal injuries associated with the chest and neck stab wounds were such that she was required to undergo extensive surgery and they were major life threatening. Any one of those deep wounds to her neck and chest could have been fatal, but good fortune and heroic surgery saved her life and it saved you from a certain conviction for murder.

[3] The second count arises because of your wounding with your uncle with intent. The intent, however, was to cause the grievous bodily harm to your former partner. I need to make it quite clear that s 188 of the Crimes Act 1961 permits such a count because it says the offence occurs where a person intends to cause grievous bodily harm to anyone, and with that intent “wounds, ... or causes grievous bodily harm to any person”. It does not need to be the same person. So under…

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 Emery

Details

AGLC: R v Emery [2012] NZHC 391
Case: [2012] NZHC 391
Decision Date: 9 March 2012

CaseChat Overview and Summary

Elim Tekotahi Emery was sentenced in the High Court of New Zealand for two counts of wounding with intent to cause grievous bodily harm. The victims were his former partner and her uncle. The Crown did not pursue a charge of attempted murder, and Emery was discharged on that count. The court needed to determine an appropriate sentence for the two counts of wounding with intent. Emery had no prior convictions and had not previously used or threatened violence, but the nature and severity of his offences were significant. The court identified several aggravating factors, including the use of a lethal weapon, extreme violence, serious injury, and premeditation. These factors placed Emery in the second band of sentencing guidelines, with a starting point of five to ten years imprisonment. The court considered mitigating factors such as Emery's guilty pleas, his good background, and the forgiveness shown by the victims' families. The court sentenced Emery to a total of five years and five months imprisonment, with a concurrent sentence of three years for the second count. The court also issued a three strikes warning under the Sentencing and Parole Reform Act 2010, advising Emery of the severe consequences of any future serious violent offences.

The court's reasoning was based on the principles of sentencing outlined in the case of R v Taueki. The court identified the relevant aggravating and mitigating factors and applied the sentencing guidelines to determine an appropriate sentence. The court also considered the impact of Emery's offending on the victims and their families, as well as his personal circumstances and prospects for rehabilitation. The final sentence reflected the seriousness of the offences, the need for deterrence, and the potential for rehabilitation. The court also emphasised the importance of Emery learning from the forgiveness shown by the victims' families and using that as a motivation for positive change in his life.

Orders