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 the legal principle of “transferred malice”, if somebody intends to cause harm to one person and mistakenly wounds someone else, they commit the crime.  That is why you have been I am sure, properly advised to plead guilty to that second count.  Your uncle suffered two stab wounds to his upper left arm which were not life threatening, but required suturing.

[4]      When interviewed by the police you said that your partner had tried to start an argument, you did not trust her, her behaviour had irritated you, you suspected her behaving lewdly as you put it and everything built up.  But you acknowledged that you went to the kitchen to obtain the knife because you intended to exact some form of vengeance upon her.  I am sure that was fuelled by alcohol.  But it seems that in the months leading up to the offending you expressed some distorted and troubling views or perceptions on the life of the young lady to others, and you displayed some obsessive views and personality traits, which included telling the complainant during

your relationship that she had to submit to you and if she left you she would be treacherous.

[5]      Nevertheless  you  have  no  previous  convictions.    You  had  not  used  or threatened  violence in the past.   So the nature, degree and seriousness of your offending came as a dreadful surprise and shock to the others who knew you.   I repeat, you are very fortunate indeed that you had not been charged with murder as you would have been should she have died and the probability of conviction and consequent life imprisonment for that murder would have been well nigh certain.

[6]      As  you  have  heard  your  counsel  say,  the  starting  point  guidelines  for sentencing for crimes such as this are well known, and are discussed by the Court of Appeal in the case of R v Taueki.[1]   There the Court of Appeal identified three bands of sentencing:

Band One – wounding with intent – the starting point is three to six years; Band Two – five to ten years;  and

Band Three – 9 to 14 years.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[7]      The lowest band is only appropriate for offending involving violence at the lower end of the spectrum of grievous bodily harm offences.  It is not appropriate for extreme violence or violence which is actually life threatening.  Band Two, that is the starting points of five to ten years, is appropriate for offending which features two or three aggravating features, which are identified as extreme violence, premeditation, serious injury being inflicted, the use of weapons, attacking the head, home invasion, gang warfare and other aggravating factors.   There may be lower starting points adopted where there is for example, provocation and excessive self- defence, but none of that occurs in  your case.   That  the offending occurs in a domestic setting or where an offender is intoxicated does not reduce the seriousness

of the conduct.   Now all the aggravating features do not exist, obviously, in your

case, but a significant number do and that is accepted by your counsel.  You clearly fall within Band Two.

[8]      There was some claim  by you to the probation officer that  your partner provoked you, but there was no evidential foundation at all for such a claim.  Rather, the evidence seems to be that you consumed a large quantity of alcohol over much of the day, became worked up, angry, paranoic, (that is unreasonably suspicious) whilst fuelled by alcohol.  You espoused disturbed and radical religious views said by you to be biblical, but rather distorted and described by other witnesses as fanatical.  It is clear you became highly intoxicated and your actions were those of a drunk man obsessed and whose mind was distorted by some disturbing approach to biblical teaching.  But your actions were not provoked by your victim and you acted simply because you could not control your emotions whilst extremely drunk.

[9]      I do not accept there was any provocation justifying lowering or reducing the starting point, which I am now required to fix.   It is clearly within Band Two of Taueki, that is between five and ten years.   In your case as it relates to the crime against your partner, there are at least four aggravating features.  That is the use of the boning knife, an especially lethal weapon;  the extreme violence with which you acted;    the  grievous  and  serious  injuries  that  you  inflicted;    and  the  degree of premeditation, in that you left the room to go and obtain the weapon.  You so very nearly cost the young lady her life. This was not a wounding to a minor extent but of such a degree that it was only one step below being fatal.  Furthermore, your attack upon and your intention to continue to attack her, led to you wounding her uncle.

[10]     Within Band Two of Taueki, if the crime against her was viewed alone, I would have taken as a starting point at least six and a half or seven years’ imprisonment because of the combination of aggravating features.  But I must look at the total culpability which involved the further crime for wounding your uncle when he attempted to intervene and stop the attack upon her.   That involved stab wounds but not as I have said to the same degree as that inflicted upon the young lady.  Nevertheless, it was inflicted with the intention of causing her harm, that is wounding her even more.  So the starting point has to be increased by reason of the two crimes involving wounding with the necessary criminal intent.  I would fix it at

eight years’ imprisonment, which is largely in line with that advanced by Mr Winter very realistically on your behalf.

[11]     There are no mitigating features (that is features which would reduce that term)  in  relation  to  the  facts  of  the  crimes  themselves.     Both  attacks  were unwarranted  and  what  occurred  could  not  possibly  be  minimised  or  mitigated through provocation, self-defence or intoxication.  They were violent dreadful acts arising out of a drunken view of your fight of ownership of the young lady.

[12]     But I turn to your personal mitigating factors.  You are entitled to call these into account.   They include your previous good history and the absence of prior convictions.  You are entitled to put that forward in mitigation to reduce the starting point.  So too you are entitled to a discount for your pleas of guilty.  Although they did not come at the early stage, nevertheless they came as soon as the Crown elected not  to  pursue  the  charge  of  attempted  murder,  and  I  propose  to  give  you  the maximum discount that I can in my discretion for that plea.

[13]     The probation officer’s report on its face does not inspire great confidence for the future.   But I have had the benefit of a lengthy and sensitive letter of support from your mother, as to your upbringing, background and have heard today from your victim’s mother, which I think may temper any gloomy prognosis.   The probation officer describes you as having a harmful drinking pattern;  that you felt hurt by what you saw as provocative behaviour of your victim;   you thought the stabbing of your uncle was an accident, but that of course only means you intended to inflict further knife wounds upon the young lady.  The probation officer suggests you might not fully comprehend how serious the crimes are that you have committed and  that  you  have  a  propensity  for  violence  and  a  lack  of  skills  to  manage relationship differences, which according to the probation officer “suggest you are at high risk of further offending”.  But your mother’s communication discloses that you come from a loving and stable family which is close;   that you are repentant and there exists some hope for the future.  I bear those matters in mind in assessing your personal circumstances.

[14]     If you are a student of the Bible you will know that without repentance there can  be  usually  no  forgiveness.    Yet  in  your  case  there  has  been  remarkable compassion and forgiveness expressed to you by the family of your victim, as you have  heard  read  out  today.    A number  of  Judges  would  not  do  so  given  the seriousness of your crime, but I consider it is within my discretion to extend some mercy to you by reason of that forgiveness.   The words of your victim’s mother, which you have heard read today are profoundly moving and generous, and they should ring in your heart forever. As I said, usually without repentance or sorrow by the person who transgresses, forgiveness does not occur.   But the  young lady’s family has displayed the finest of Christian values and you are blessed by that.  You must learn from them.   You receive an additional benefit solely because of their forgiveness.

[15]     So from a starting point of eight years I propose to allow you nine months’ discount to reflect your good record, the forgiveness of your victim’s family as mitigating factors.   Thereafter, a further 25 per cent discount being the maximum available in terms of the Supreme Court’s decision in Hessell v R[2]  for your guilty plea is allowed.  I accept it came at the first reasonable opportunity after the Crown elected not to pursue the charge of attempted murder.  As a consequence this results

to a lead sentence and a final sentence of five years five months’ imprisonment on the count of wounding the victim with intent to cause her grievous bodily harm.  On the second count of wounding your uncle with intent to cause her grievous bodily harm, there is be a concurrent sentence of three years’ imprisonment.   That is it merges in the lead sentence of five years five months’ imprisonment.  I do not make any order that you should serve a minimum period without eligibility for parole and you will be eligible for consideration for parole by the Parole Board after the usual statutory one-third.

[2] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

[16]     There will be an order for destruction of the boning knife that you used as a weapon.

[17]     Under the recently enacted Sentencing and Parole Reform Act 2010 you are now subject to what is known as having a three strikes warning.  That requires that I

give you a Stage One warning because you have committed two serious violent offences as defined by the Act and no previous warnings have been given to you and you are over the age of 18 years when the offences were committed.  Accordingly, the law requires that I give you this warning.

[18]     Given  your  two  convictions  for  wounding  with  intent  to  cause  grievous bodily harm you are subject to the three strikes law.  I am giving you this warning of the consequences that would follow upon another serious violent conviction.  You will be given a written warning also outlining these consequences, and that lists what are known as “serious violent offences”:

(1)If you are convicted of any serious violent offence other than murder committed after this warning, and if a Judge imposes a period of imprisonment, then you will serve that sentence without parole or early release.

(2)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.  In that event the Judge must sentence you to a minimum term of imprisonment.

[19]     As I have said, you will be given that three strikes warning in written form by

Court officials before you are taken to serve your sentence.

[20]     This is not the end Mr Emery it is just the beginning.  You have everything to live for and thank your God that your partner did not die and that her family have shown to you remarkable compassion, forgiveness and mercy.

J W Gendall J

Solicitors:

Crown Solicitor, Palmerston North
WinterWoods Lawyers, Palmerston North for Prisoner