R v Gemmell
[2022] NZHC 1014
•10 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-090-5558
[2022] NZHC 1014
THE QUEEN v
NUKA GEMMELL ALSO KNOWN NUKU GEMMELL
Hearing: 10 May 2022 Appearances:
D A McGivern for Crown
J S Kovacevich for Defendant
Sentence:
10 May 2022
SENTENCE OF PAUL DAVISON J
[Redacted version]
Solicitors:
Crown Solicitor, Auckland
R v NUKA GEMMELL ALSO KNOWN NUKU GEMMELL [2022] NZHC 1014 [10 May 2022]
Introduction
[1] Nuka Gemmell (Mr Gemmell), having entered pleas of guilty to both charges on 12 July 2021, you appear this morning for sentence on one charge of aggravated robbery1 and one charge of kidnapping2 relating to your offending on 18 November 2019, when together with Manawanui Te Pou you kidnapped and robbed a courier driver, Mr Ramesh Kumar.
The offending
[2]I shall begin by summarising the offending.
[3] At around 3.30 pm on 18 November 2019, Mr Kumar who is a courier driver and the victim of your offending stopped his van in the driveway of a residential address in Rānui in West Auckland to deliver a package. As he was getting out of his van with the package to be delivered to the address, your co-offender Manawanui Te Pou driving in a stolen Hyundai vehicle with you in the front passenger seat, pulled up and stopped close behind the courier van effectively blocking Mr Kumar and his vehicle into the driveway.
[4] You immediately exited the Hyundai and approached the van driver. You were wearing a hoodie sweater with the hood drawn up over your head. While you were doing this Mr Te Pou remained seated in the Hyundai. You approached Mr Kumar and tried to take the keys to his van from the ignition but he resisted, and fearing for his safety he got back into his van and locked himself inside.
[5] You briefly returned to the Hyundai apparently to speak to Mr Te Pou. He then exited the Hyundai and approached the passenger side of Mr Kumar’s van and armed with a screw driver he smashed the passenger window, telling Mr Kumar, “don’t do anything, I have a gun”. Mr Kumar immediately got out of his van on the driver’s side and Mr Te Pou moved around the van and tackled him to the ground. Mr Te Pou then pushed Mr Kumar and dragged him into the Hyundai while you got into the van in the driver’s seat and started it. After Mr Te Pou had pushed Mr Kumar into the Hyundai,
1 Crimes Act 1961, s 235(b): carrying a maximum penalty of 14 years’ imprisonment.
2 Section 209: carrying a maximum penalty of 14 years’ imprisonment.
he proceeded to drive off with him in the Hyundai and you followed driving the courier van.
[6] Both vehicles were then stopped somewhere beyond the property on the side of the road and you and Mr Te Pou started taking packages out of the courier van before a particular package was located and identified, and one or other of you said that was what you were looking for.
[7] You and Mr Te Pou then took Mr Kumar’s wallet from out of the courier van and then you both got into the Hyundai where Mr Kumar was still sitting in the back seat. Then with Mr Te Pou driving, you and he took Mr Kumar to several locations around West Auckland in an attempt to use his bank card to get money. You took him to an ATM beside the dairy in Swanson Road, the Westpac bank in Lincoln Road, a fast food restaurant, the KFC, and a branch of the TAB in Lincoln Road.
[8] You and Mr Te Pou then drove Mr Kumar back to where his courier van had been parked. There you got out of the Hyundai and into the courier van. You then drove the van in convoy with the Hyundai to another location where Mr Te Pou stopped the Hyundai, gave Mr Kumar back his keys and wallet and let him out of the vehicle. Mr Te Pou retained Mr Kumar’s cell phone.
[9] Mr Kumar then drove his van back to his courier depot before he contacted the Police.
Purposes of sentencing and matters to be taken into account
[10] The purposes of sentencing you include holding you accountable for the harm your offending has caused the victim and the community, and to promote in you a sense of responsibility for and acknowledgement of that harm. Other purposes and objectives of the sentencing are to denounce your offending, and to deter you and anyone else minded to do so from committing the same or any similar offence in the future. The sentence to be imposed on you is also for the purposes of protecting the community from you, and assisting you in your rehabilitation and reintegration into the community upon your release at the completion of your sentence.
[11] In deciding the sentence to be imposed on you I must also consider the gravity of your offending and your degree of culpability, and take into account the seriousness of the type of offences you committed in comparison to other types of offences as indicated by the maximum penalties prescribed for them. I must also take account of the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances. I must take into account any information regarding the effect of your offending on the victim. And finally, I must impose a sentence that is the least restrictive outcome that is appropriate in the circumstances of this case and which is consistent with appropriate sentencing levels for offending of this kind.
[12] Mr Gemmell my sentencing of you today involves a two-stage process.3 I shall begin by deciding the appropriate sentencing starting point in respect of the charge of aggravated robbery which I shall treat as the lead offence of the two offences you are to be sentenced for. To do so, I will have regard to a number of cases where the offence and circumstances of the offending was similar to yours, for the purposes of comparison and in order to select a starting point for your sentencing which is consistent with the sentences imposed on other offenders who offended in a manner similar to you. As part of the process of deciding the starting point I shall identify and consider any aggravating and mitigating features of your offending.4 I will then adjust the starting point either up or down, to take account of any other relevant circumstances relating to you and your offending, including your personal circumstances. The process will include making a reduction or discount in recognition of the guilty pleas that you entered and any other appropriate discounts which will reduce the final sentence to be imposed on you.5
[13] As you were given a First Stage warning pursuant to s 86B(1)(b) of the Sentencing Act 2002 when you were previously sentenced to imprisonment on a charge of aggravated robbery on 3 May 2018, and warned of the consequences of committing another serious violent offence after being given that warning, and as both the charge of aggravated robbery and the charge of kidnapping are deemed to be
3 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
4 R v Taueki [2005] 3 NZLR 372 (CA) at [8].
5 Moses v R, above n 3, at [46].
serious violent offences in terms of the Sentencing Act,6 where the sentence imposed on you is one of more than 24 months’ imprisonment, the law requires that you must serve the full sentence without being eligible for parole.7
Submissions
The Crown
[14] The Crown says that the Court should adopt a starting point of between six years and six and a half years’ imprisonment to cover both the aggravated robbery and the kidnapping offending. The Crown says that I should increase and uplift that starting point by around four months to take account of your 15 previous convictions, including one for aggravated robbery. As regards the appropriate discounts, the Crown says that you should receive a discount of amounting to around five per cent of the starting point for your guilty pleas to the charges, and also a reduction in recognition of the time you were subject to restrictive bail conditions. As regards your personal and cultural background, the Crown submits that the contents of the report prepared by Ms Leigh Stevenson does not show there to be any readily apparent linkage or causal connection between your personal family and cultural background and your offending. The Crown does however acknowledge that your childhood and youth involved some drug use and truancy, but it says that it appears that you overcame any negative consequences of that, as evident by you going on to excel as a boxer and have an international boxing career.
Defence
[15] Mr Kovacevich on your behalf submits that the appropriate starting point covering both the aggravated robbery offending and the kidnapping offending should be between four and five years’ imprisonment. He says that the Court should also take the length of sentence without parole into account when assessing any uplift of the starting point on account of your history of previous offending.
6 Sentencing Act 2002, s 86A(35) and (38).
7 Section 86C (4)(a).
[16] Mr Kovacevich submits that the Court should then discount and reduce the starting point to take account of the following factors:
(a)To recognise your guilty pleas — up to 20 per cent.
(b)To recognise your genuine remorse — five per cent.
(c)To take account of your mental health issues — up to five per cent.
(d)In respect of the time you spent on restrictive EM bail — up to six months’ reduction of sentence.
(e)In recognition of the contribution that your personal and cultural background and circumstances played in causing or leading to your offending — up to 30 per cent.
[17] Mr Kovacevich asks the Court not to impose the second strike consequences provided for in the Sentencing Act as doing so would be “disproportionately severe”, or alternatively to take account of the length of the sentence without parole when assessing the end sentence to be imposed. He concludes by reminding the Court that the sentence imposed should not be such as to have a crushing effect on you and deprive you, Mr Gemmell, of all hope of rehabilitation and reintegration back into the community.
[18] The Supreme Court in the case of Fitzgerald v R was clear that it will be rare that a sentence is disproportionately severe such that there has been a breach of s 9 of the New Zealand Bill of Rights Act 1990.8 While I consider that sentencing you to imprisonment in accordance with s 86C of the Sentencing Act will result in you serving a full sentence imposed without parole, I do not consider that that sentence reaches the threshold of being a disproportionately severe sentence so as to engage s 9 of the New Zealand Bill of Rights Act. It would not be a sentence that is so excessive as to outrage standards of decency or so out of proportion in the circumstances of the
8 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [219] per O’Regan and Arnold JJ and
[245] per Glazebrook J.
case it would shock the conscience of New Zealanders, being the word formulae used by the Courts in relation to an assessment as to when a breach of s 9 is to be recognised as taking place. Your case is far removed from that of the case of Fitzgerald and the circumstances there and I simply decline to adopt Mr Kovacevich’s submission which would amount to putting aside s 86C of the Sentencing Act on account of s 9 of the New Zealand Bill of Rights Act. I shall therefore apply the provisions of s 86C in regard to the sentence to be imposed on you as I must.
The sentence to imposed
The starting point
[19] The Court of Appeal in the case of R v Mako set out tariffs for sentences to be imposed for aggravated robbery.9 The sentencing levels and guidelines set out by the Court of Appeal are intended to provide assistance to sentencing courts in assessing the true culpability appearing from the circumstances of the offending. The Court of Appeal said:
[34] The range of conduct that can constitute aggravated robbery is very wide. In addition to the essential elements of the offence, in each case there will be features, themselves widely variable, that will contribute to or detract from the seriousness of the conduct and the criminality involved. It is the particular combination of these variable features which requires assessment for sentencing in each case. Once the seriousness of the particular combination of features is assessed and a starting point reached, it will be necessary to consider whether overall the crime is aggravated or mitigated by the offender’s particular personal circumstances such that the sentence to be imposed should be higher or lower than the starting point. We emphasise, to dispel any doubt, that in this context a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial.
[20] The Court of Appeal also identified a number of factors that would be relevant to a sentencing court’s assessment of the seriousness and criminality involved in offending such as yours. In respect of your offending and sentence Mr Gemmell, those factors relevantly include: the degree of planning and premeditation; the number of participants involved; whether disguises were used — noting that the use of hoods and other adornments also contribute to intimidation; whether weapons were involved and if so how they were used; the nature of the target or persons targeted as the amount of
9 R v Mako [2000] 2 NZLR 170 (CA).
any potential gain will be an important factor; and the use of physical force. As regards the use of physical force the Court of Appeal said:
[43] Apart from the increased danger from the introduction of even minor physical force in the tension generated by robbery, actual violence on top of threats and intimidation takes the conduct into another dimension and must attract a considerably higher rating in overall seriousness. The extent of any violence and its consequences will be highly relevant either in assessing the robbery offence or, if the subject of an additional charge, the total criminality.
…
[45] Associated offending such as vehicle conversion, detention or abduction of victims, and hostage-taking will add to the overall criminality and must be assessed for sentencing in totality.
[21] Turning to the appropriate sentencing tariffs for aggravated robbery the Court of Appeal said:
[57] Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between four and five years would be appropriate.
[22] In the subsequent case of R v Hoko the Court of Appeal referred to what it had said in Mako regarding the robbery of taxis, and observed that while that description of offending did not precisely fit the circumstances of Mr Hoko’s offending, it provided a sensible guide to setting the appropriate starting point in Mr Hoko’s case.10
[23] The offender in Hoko got into the victim’s car shortly after she had parked and while she was still sitting in it. He was wearing a hooded sweatshirt and dark sunglasses. He had with him a knife with a 10 centimetre blade and he put it to the side of the complainant’s stomach and told her to drive away. When she asked if he was going to hurt her the offender said that he would not if she did as she was told. The offender then instructed the complainant to park her car and get into the passenger seat. He then used her cell phone cord to tie her hands to the vehicle’s handbrake, before rifling through her handbag. While doing that he commented to her that she was ‘sexy’ which added to her fear and anxiety. When he located her EFTPOS card
10 Hoko v R [2017] NZCA 484 at [15]–[16].
he demanded that she give him her PIN number which she did. He then drove in her car with her as a passenger to an ATM and used the complainant’s card to withdraw
$120. He then drove her back to the business area of the town, where this was taking place and there he cut the straps from her handbag and used them to tie her hand to the gearshift of her car. He told her that she had to wait until he had crossed the road and if she left before he had crossed the road he would cut her, and if he saw her around town he would run her over. The victim of that offending suffered very significant psychological trauma as a result of being subjected to that offending.
[24] The Court of Appeal noted that the offending possessed the aggravating features of: premeditation; the use of a weapon; the use of a hooded sweatshirt and sunglasses as a disguise; and the devastating effect of the offending on the complainant. The Court of Appeal also noted that there was no significant physical violence inflicted upon the complainant, and said that the starting point for the aggravated robbery should have been no more than five years’ imprisonment, to which they added one year to reflect the kidnapping charge.
[25] Similarly, in the case of Hewitt v R the Court of Appeal found that the starting point for the aggravated robbery in that case should have been no higher than five years.11 In that case the offender got into the female victim’s car as it was stopped at an intersection. When asked what he was doing, Hewitt told the driver to shut up and asked her where her money and gold was. She gave him her handbag which he emptied onto the floor of the car. When she tried to use her cellphone he grabbed it away from her. He then forced the victim to drive away holding her by her hair, while running a fishing knife up and down her arm and aggressively demanding that she “drive properly”. Having forced her to drive into a side street he demanded that she give him her rings or he would cut her fingers off. The victim complied and gave Hewitt her rings. He then punched her in the face and pushed her out of her car. He then drove away in the car. It was located not long afterwards at some commercial premises nearby. Hewitt was charged with kidnapping, aggravated robbery, male assaults female, and unlawfully taking a motor vehicle. A second incident occurred later that day at around 8.00 pm when Hewitt went into a garage/sleepout of an address
11 Hewitt v R [2018] NZCA 374 at [69].
well known to him. The victim (Ms A) was one of three women present which included Hewitt’s girlfriend. Hewitt had a baseball bat with him. He held the victim in a headlock and marched her around the garage and out onto the driveway demanding the keys to her BMW vehicle. When she did not produce the keys he threatened her that he would break her legs if she did not give them to him. Eventually Hewitt left the address telling the other women to keep watch over the victim, however when the victim saw her chance she left and telephoned the Police.
[26] Referring to Hoko the Court of Appeal found that the starting point for the aggravated robbery involving Ms A should not have been “higher than five years”.12
Fixing the starting point
[27] I consider the following to be the aggravating features of your offending Mr Gemmell:
(a)The involvement of two offenders acting in a co-ordinated manner to intimidate and overpower the victim, Mr Kumar who as a courier driver alone and in an otherwise quiet residential street was vulnerable.
(b)The use of a weapon, being the screw driver used by Mr Te Pou to break the passenger window of the courier van.
(c)The threat by Mr Te Pou that he had a gun and telling Mr Kumar to do as he was told. Those are both aggravating features of the offending.
(d)The use of physical force by both of you against Mr Kumar is also an aggravating feature. Initially the force you used against Mr Kumar when attempting to take the package from him and take the keys to his van was the first physical contact. That physical contact was not as violent as Mr Te Pou’s but it was nevertheless physical contact showing that you were willing to use your physical strength to overpower him and he was obviously a much smaller person than you. Shortly after
12 At [69].
you had acted in that way Mr Pou used his overpowering physical force to subdue and drag Mr Kumar out of his van and along the driveway to the vehicle, the Hyundai, where he pushed him into the vehicle and while he did that you got into the van and got ready to depart and by doing that you demonstrated that you and Mr Te Pou were acting together in a joint enterprise and working together to achieve the objective of detaining Mr Kumar, removing him from his van into the Hyundai and taking his van which required two people to do it and to do that the two people had to be working together and have something of a plan as to who was to do what.
(e)Mr Gemmell you were also initially wearing a hoodie sweatshirt with the hood up over your head which I consider was inherently intimidating and intended to be. However your face was not otherwise covered and having regard to the extended time you spent with Mr Kumar in the Hyundai while going around the various places where the bank card was used, or attempted to be used, there is no indication that any effort was made by you to otherwise conceal or disguise your appearance and prevent your subsequent recognition. But at the moment that you first encountered Mr Kumar you did so with your hood up in circumstances which I find were intended to intimidate him and frighten him and that is an aggravating feature of the offending.
(f)The taking of the van itself and the detention of Mr Kumar over an extended period while the attempts were made to use his bank card to get money from his bank account is also an aggravating feature of the offending.
(g)While you Mr Gemmell did not receive any money or property as a result of the robbery, it appears that Mr Te Pou did receive and retain Mr Kumar’s cell-phone and did receive the sum of approximately $100 that was obtained by Mr Kumar from his bank account and which was used by Mr Te Pou to purchase some Kentucky Fried Chicken which you consumed some of and some of the money was apparently used by
Mr Te Pou at the TAB branch that he went into. I consider that there was some element of premeditation in the sense that a plan as to who was to do what must have been finalised or made before you got out of the Hyundai and went about the enterprise although I also find there was no evidence of any extended or deliberate pre-planning that would have identified Mr Kumar as the target, or a courier driver as the target and there is no evidence of any careful and deliberate pre-planning or premeditation of that kind.
(h)I do however consider the gravity of the offending to be mitigated to some extent by the fact that Mr Kumar was taken by you and Mr Te Pou back to his van and his keys and wallet were returned to him. By that stage of course the serious offending, the intimidation, the threatening, the anxiety that it caused and the extended detention that he had been subjected to had already occurred and was coming to an end, so I do not place a great deal of weight on that aspect of the offending as affording any significant mitigation of the gravity of the offending but it is mitigation nevertheless.
[28] I consider the aggravated robbery offending to be close to but somewhat less serious than the offending in both Hoko and Hewitt. The index offending, that is your offending Mr Gemmell, is also less serious than the offending in R v Zhang where a six year starting point was upheld in a case involving a “carjacking” at night and where actual violence and serious threatening behaviour occurred that involved possession and use of a pistol and a disguise over the offender’s head.13 In that case the offender pressed the pistol against the victim’s head as she was driving and he struck her on the back of her head with the butt of the firearm when he became aware the Police were in pursuit.
[29] Although there was mention of a package having been located that you and Mr Te Pou were apparently looking for, there is no evidence which would indicate, as I have said, that your offending was opportunistic rather than carefully pre-meditated
13 R v Zhang CA56/05, 24 May 2005.
and there is no evidence that you were in fact looking for any particular package when you offended against Mr Kumar.
[30] And although possession of a firearm was mentioned by Mr Te Pou in his threat made to Mr Kumar, an actual firearm was never seen by Mr Kumar, and so there is no evidence that any actual firearm was in Mr Te Pou’s possession, and there is also no evidence that you, Mr Gemmell, had any knowledge that Mr Te Pou was going to say what he did about having a weapon with him. However, when people act in concert and undertake a criminal enterprise together, both of them in your case, are responsible for the actions of the other that are foreseeable and that kind of threat and intimidation is the kind of threat that you may well have expected or anticipated might be made even though you had no direct or specific knowledge that he was going to say that.
[31] There were, as I have said, two offenders involved in the offending and the presence of two of you, and I would add the physical stature of both of you being as it is, both powerfully built young men, would have inevitably been intimidating and frightening to Mr Kumar and have been coercive of him by the presence of the two of you with or without the use of any physical force. And it seems that by the presence of the two of you, it enabled one or other of you to leave the Hyundai at various stages with the other left in the car with Mr Kumar, thereby frightening him and intimidating him to the point where he did not try to escape at any stage notwithstanding that one of you was out of the car, which goes to illustrate the nature of the intimidation and the fear that was installed in Mr Kumar by the way in which you conducted yourselves and whether or not anything more was said, the very presence of the two of you and how you were conducting yourselves, the fact that you had used violence to put him into the car, and showed thereby a willingness to use violence, maintained that intimidatory and controlling effect on him throughout the entire time that he was in the car until he was finally released and that is an important and aggravating feature of the offending which I have taken into account.
[32] I shall adopt a starting point of four years and six months for the aggravated robbery and I will uplift it by 18 months to take account of the kidnapping of Mr Kumar. He was detained, as I have said, over an extended period during which he was obviously intimidated and made no attempt to escape as one or other of you was
always with him. So the adjusted starting point I reach is one of six years which encompasses and covers both offences.
Uplift for previous convictions
[33] Although the Crown submit that an uplift of around four months is appropriate to take account of your prior offending and particularly your aggravated robbery offending for which you were convicted in May 2019, I consider that the subsections of s 86C of the Sentencing Act which apply and which will require you to serve the prison sentence imposed on you without being eligible for parole are intended to serve the sentencing objectives of both deterrence and protection of the public that would otherwise underpin an uplift to take account of your prior offending of the same kind as your index offending. For that reason I shall not order or make any uplift of the starting point to take account of your previous offending. As I say, I consider that is embodied within the provisions of the Sentencing Act which will apply to the sentence imposed.
Guilty pleas
[34] You entered your guilty pleas to the charges on 12 July 2021 following the Crown filing an amended Crown Charge Notice and Summary of Facts. That date was the first scheduled day of what was to be your trial if it proceeded, and so your pleas came at a late stage. However, the effect of the amended Crown Charge Notice was to withdraw a charge of demanding with menaces, and the removal of that charge obviously reduced the gravity and scope of the criminality that was being alleged against you, and informed your decision to enter guilty pleas.
[35] Although I would ordinarily allow a discount of 15 per cent in recognition of the guilty pleas, Mr Gemmell your entering of guilty pleas on the basis of an entirely implausible claim subsequently advanced at the disputed facts hearing in which you admitted the offending but claimed that you had been compelled to commit the offences by Mr Te Pou, leads me to conclude that the appropriate discount for the guilty pleas should be one of 10 per cent.14
14 See Nathan v R [2011] NZCA 284 at [28].
Time on EM bail
[36] Mr Gemmell was on EM bail for almost a year between 24 July 2020 and 5 June 2021. During that time you failed to comply with your bail conditions, and breached them twice. You were warned and readmitted to bail by Venning J on 13 April 2021 following a breach the previous day. However on 5 June 2021 you breached your bail again when you left the EM bail address. When you appeared before the Court on 8 June 2021 following that breach, Venning J remanded you in custody. I also note that the Department of Corrections pre-sentence report states that your ability to comply with an electronically monitored community-based sentence is considered low as Community Corrections records show that you have consistently been non-compliant with your EM bail. Having regard to that history of non-compliance, I do not consider that your EM bail restrictions and any observance of them warrants recognition by way of a discount from your sentence.
Personal and cultural factors
[37] As I said, Mr Kovacevich, relying on a s 27 Cultural Report which has been filed, submits that there is a basis for a discount of your sentence of up to 30 per cent in recognition of the cultural and personal factors which have influenced and been causative of your criminal offending.
[38] In her report, the author of that report, Ms Stevenson, reviews and describes the relevant aspects of your childhood, youth and adult development [redacted]. You are now 32 years old, Mr Gemmell. Your mother is of European and Māori descent. Your father is of Māori descent. You are of Tūwharetoa descent. The report notes that while you live by Māoritanga, your health and sense of who you are as a Māori is not balanced. As set out in Ms Stevenson’s report, you clearly had a severely disrupted childhood in terms of your early family life.
[39] Mr Gemmell you are one of nine siblings. You were five years old when your parents separated, and you went to live with your mother and her new partner. Your father, who was at that time president of the Kawerau Chapter of the Mongrel Mob, was imprisoned some time around the time of your parents’ separation.
[40] When you were nine years old your mother and her partner decided to relocate to Australia. You did not wish to go and you went to live with your grandmother in Northland. [Redacted]. Ms Stevenson notes your experimentation with marijuana and alcohol from a young age and your access to drugs was thereafter entirely unmonitored.
[41] At age 10 you returned to Auckland to live with your father who had by then been released from prison. Despite his gang affiliations you consider your father, Mr Gemmell, to have been a good role model.
[42] However, when you were living back in Auckland you attended a number of schools. You attended, after your intermediate school level, three different secondary schools in fairly short order. You often truanted and you were smoking marijuana frequently during your secondary school years. You left secondary school without any qualifications. However, encouraged by your father from an early age, you had taken up boxing as a youngster and you had excelled as a boxer and in boxing competitions. You were the New Zealand Junior Fly weight champion in 2003 and the BNZ lightweight and intermediate lightweight champion in 2005 and 2006. You held national titles from the age of 15 and participated in over 100 competitive boxing bouts and held an award, known as I think, the Golden Gloves in some grade. So you clearly excelled at the athletic and demanding sport of boxing.
[43] At 15 years old you left school with the idea of pursuing a boxing career and that led you to international travel to attend boxing competitions which took you to the United States, Australia, Fiji and no doubt other locations as well.
[44] In 2015 you were married to a woman who you have described as your “childhood sweetheart”. However, unfortunately that marriage ended in separation in 2019. You and your former wife have three children together.
[45] You however decided to move to Australia and there you worked in various jobs in the building and concreting labouring area. When you returned to live in New Zealand however you were by then addicted to methamphetamine and your boxing career, which had had such promising prospects for you as an individual, was
effectively at an end. You then fell into a world of drugs and alcohol and struggled emotionally and mentally with the breakdown of your marriage. Ms Stevenson notes in her report that you have however addressed your drug addiction and she says that you have been clean since 2019. [Redacted]. Although in her report Ms Stevenson does not directly address the issue of whether your cultural and personal background contributed to the occurrence of your offending, she does however say that:
Nuka Gemmell understands the gravity of his actions on that day and wishes he could undo his actions and had not got in the car that day with him [Mr Te Pou]. The factors involved in decision making include social factors such as a group’s dynamics or peer pressure. Other factors such as stress and making decisions quickly when under pressure or physical pressure such as being fatigued or under the influence of illicit drugs and alcohol, were all factors influencing Nuka Gemmell’s ability to make rational decisions.
[46] The Court of Appeal in Zhang v R referring to personal, family, whānau and community and cultural background factors relevant to an offender, said:15
[162] Fourthly, social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender. Likewise, the tools available in ss 25 and 27 are there for use by any relevant offender.
[47] Mr Gemmell, I am satisfied by the contents of Ms Stevenson’s report that the introduction to the use of drugs and alcohol from a very young age provides an insight into the lack of adult supervision and care you experienced as a young boy which in turn led to your failure to effectively engage with education and schooling during your younger teenage years particularly. Your physical and athletic skills as a boxer provided you with a means for a time at least of finding a pathway forward and away from the world of drugs and alcohol abuse which had been your life as a young boy and teenager. However after your marriage ended and when you moved to Australia, it appears you lapsed back into drug use and developed a methamphetamine addiction. When you returned to New Zealand you made poor choices regarding the people you associated with and the lifestyle that you adopted and those decisions led to criminal offending including the aggravated robbery for which you were imprisoned in May 2019 which you say arose from your attempts to recover a car from a relative, and also led to you associating with gang members and your current offending.
15 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159]–[162] (footnotes omitted).
[48] So I consider, Mr Gemmell, your life as a child, the environment in which you were brought up in, in a family where gang membership and lifestyle was all you knew, and in that context you were exposed to drug use and abuse from a young age are matters that go some way to explaining your readiness to resort to criminal offending and go some way to explaining your readiness to become involved in the present offending which are matters which to an extent at least do mitigate your criminal responsibility.
[49]I will therefore allow a discount of 10 per cent on account of that factor.
Remorse and prospects of rehabilitation
[50] Mr Gemmell, you have expressed your remorse for your offending when speaking with Ms Stevenson and you have also written a letter to the Court which I have of course read. You have expressed your regret at having offended against Mr Kumar and through Ms Stevenson have apologised to him for your actions. In your interview with Ms Stevenson you stressed your wish to develop the reconnection with your children that you have commenced and which you are enjoying and pursuing and of moving forward with your life upon release from prison. From the contents of Ms Stevenson’s report it is clear that you have considerable family support including that of a relative who has confirmed that you will have work in his civil engineering business upon your release. You also have aspirations of reconnecting with the sport of boxing and your coach who was a mentor to you in your early years and who helped you in the past.
[51] All of that indicates that you are motivated to better yourself and put the life of drugs and crime and associating with people for whom it is part of their way of life behind you. Whether or not you achieve that, Mr Gemmell, is entirely up to you. You have much to live for in the lives of your children and the prospects that you have. You obviously want to be there for them and participate in that and you clearly do not want them to live the life that you have lived. You have the ability to better yourself. You have the mental strength, shown to be in your athletic and boxing prowess, to overcome obstacles. It is now entirely up to you. There is no-one to blame or look at if you fail to do so.
[52] [Redacted]. For the factors related to your commitment to rehabilitation, your genuine remorse which I find to be present, and your ability to do that and I encourage you do that at the conclusion of your sentence, I shall allow a further 10 per cent of the adjusted starting point as a discount.
Applying the discounts to the adjusted starting point
[53] From the adjusted starting point of six years’ imprisonment, those discounts totalling 30 per cent are to be deducted to reach a final sentence of four years and two months’ imprisonment.
[54] As I indicated at the outset, s 86C(4)(a) provides that where the court imposes a sentence longer than 24 months’ imprisonment, the court must order that the defendant is required to serve the full term of the sentence imposed, meaning that you must serve the sentence that I will impose upon you without parole.
[55] Pursuant to s 86C(6) if but for the provisions of s 86 the Court would otherwise have imposed a minimum period of imprisonment, the Court must state the reasons that it would have imposed the minimum period of imprisonment. I accordingly record that were it not for the provisions of s 86C, I would have imposed a minimum period of imprisonment pursuant to s 86 of half of the sentence of imprisonment for the purposes of holding you accountable for the harm your offending caused the victim and the community, and to denounce your offending and conduct, and to deter you and other persons from committing the same or similar offences, and to protect the community from you. However I consider that all of those objectives are achieved and subsumed by the effects and operation of s 86C and the requirement that you must serve the full sentence imposed upon you without parole.
The sentence
[56]Mr Gemmell please stand.
[57] For the offences of the aggravated robbery and kidnapping of Mr Rakesh Kumar on 18 November 2019, in respect of each of them I sentence you to a term of
four years and two months’ imprisonment to be served concurrently, that is one sentence of four years and two months’ imprisonment.
[58] I also make an order pursuant to s 86C(4)(a) that you are to serve the full term of that sentence of imprisonment without parole.
[59] I am also required to give you a Stage 2 warning and formally warn you that if following this Stage 2 warning you commit any further serious violent offence, what the consequences of that are. So Mr Gemmell, given your convictions for the aggravated robbery and kidnapping of Mr Rakesh Kumar on 18 November 2019, you are subject to the three strikes warning. This is now your final warning which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists these serious and violent offences. If you are convicted of any serious violent offence other than murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust.
[60] If you are convicted of manslaughter committed after this warning, then you will be sentenced to imprisonment for life. The Judge must order you to serve at least 20 years’ imprisonment unless the Judge considers it would be manifestly unjust to do so in which case the Judge must order you to serve a minimum of at least 10 years’ imprisonment.
[61] If you are convicted of the offence of murder after this warning, then you must be sentenced to imprisonment for life. The Judge must order you to serve the sentence without parole unless it would be manifestly unjust to do so. If the Judge finds that it is manifestly unjust to do so, then the Judge must impose a minimum period of imprisonment of at least 20 years unless that would be manifestly unjust in which case the Judge must sentence you to a different minimum period of imprisonment.
[62] If you were sentenced to preventive detention, you must serve the maximum term of imprisonment of the most serious offence you are convicted of unless the Judge considers that would be manifestly unjust.
[63]Mr Gemmell, would you stand down please.
Paul Davison J
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