R v Emery - [2012] NZHC 2933

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-092-6506 [2012] NZHC 2933

THE QUEEN

v

CLINTON ARNOLD FENTON EMERY

Hearing: 6 November 2012

Counsel: M R Walker for Crown
O R Hintze for Prisoner

Judgment: 6 November 2012

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, Auckland
Counsel:
B J Meyer, PO Box 941, Auckland
O R Hintze, PO Box 38474, Howick, Auckland

R V EMERY HC AK CRI 2012-092-6506 [6 November 2012]

Introduction

[1] Clinton Arnold Fenton Emery, you appear for sentence today having pleaded guilty in the District Court at Manukau, on 18 July 2012, to four charges of selling cannabis, one of possessing cannabis for the purpose of sale, one of possessing cannabis, one of possessing a firearm, one of driving while suspended on a third or subsequent occasion, and two of failing to answer bail imposed in the District Court.

[2] The offending occurred over a period between 28 November 2011 and 8 May

2012. The District Court declined jurisdiction to sentence you. That is why you are in this Court for sentence.

Facts

[3] In February 2012, the Counties-Manukau Organised Crime Unit began an investigation into the sale and distribution of cannabis in its policing area. The initial phase identified you and another man, Kasey Warbrick, as working together to facilitate the sale of cannabis. Telephone data from four cellular telephones, two of which were used by you, provided evidence for the offences to which you have now pleaded guilty.

[4] On 4 February 2012, you were driving an Audi motor vehicle in Otara when you were stopped by a police officer. At that time, I understand you were suspended from driving. After stopping you, the police officer noticed a strong smell of cannabis was coming from the vehicle. He conducted a warrantless search of the car, for drugs. While the arresting officer was speaking to you, you gave to him one of the telephone numbers to which I have referred.

[5] A search of the boot of the vehicle located a clear plastic zip-lock bag containing a large quantity of cannabis. On weighing, it was found to contain 2.4 ounces of plant material. A sawn-off double barrelled shotgun, with 9 shotgun cartridges was also found in the car boot.

[6] You told the arresting officer, on interview, that you intended to smoke the majority of the cannabis found in the car, but also wanted to sell around 10 tinnies. So far as the firearm was concerned, you indicated that you had recently left the Tribesman gang and carried the firearm for protection.

[7] Following your appearance on charges arising out of that incident, you were remanded on bail.

[8] Mr Warbrick was arrested on 15 February 2012. His vehicle was also searched for drugs. Some 25 tinnies were found. Mr Warbrick was charged with possessing cannabis for the purpose of supply.

[9] Afterwards, in discussions with a police officer Mr Warbrick provided two further cellular telephone numbers. They are two…

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 2933
Case: [2012] NZHC 2933
Decision Date: 6 November 2012

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over the sentencing of Clinton Arnold Fenton Emery, who had pleaded guilty to multiple charges, including selling and possessing cannabis, possessing a firearm, driving while suspended, and failing to answer bail. The court, in this case presided over by Heath J, had to decide on the appropriate sentencing for Emery, considering the nature and extent of his criminal activities. The key legal issues were determining the appropriate starting point for the sentence, considering the commercial scale of the cannabis sales, and the appropriate uplift for the firearms charge. The court also had to consider mitigating factors, including Emery's late attempt at rehabilitation and his guilty pleas.

Heath J decided on a starting point of three years and three months imprisonment, taking into account the commercial scale of the cannabis sales and the firearms charge. The court considered the primary sentencing goals to be denunciation and deterrence. Emery's age, previous convictions, and late attempt at rehabilitation were also considered. The court decided against adding an uplift for personal aggravating factors, given the time that had passed since Emery's previous convictions. Heath J acknowledged Emery's willingness to attempt rehabilitation and suggested that this factor should alert the Parole Board to his desire to address his addiction. The court imposed sentences for each charge, with the effective term of imprisonment being no longer than two years and six months, to be served concurrently. The court also ordered the destruction of the firearm seized and the remission of all fines owed by Emery.

Emery was sentenced to two years and six months imprisonment for each charge of selling cannabis, two years and three months for possessing cannabis for sale, six months for possessing cannabis, three months for possessing a firearm, one month for driving while suspended, and was discharged for failing to answer District Court bail. Heath J emphasised the importance of Emery demonstrating his desire and willingness to rehabilitate while in prison, which could potentially help him obtain parole at the earliest possible time. The court also made an order for the destruction of the firearm seized and the remission of all fines owed by Emery, to provide him with an opportunity to make a fresh start upon his release from prison.

Orders