R v Gemmell - [2022] NZHC 1014

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…

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 Gemmell

Details

AGLC: R v Gemmell [2022] NZHC 1014
Case: [2022] NZHC 1014
Decision Date: 10 May 2022

CaseChat Overview and Summary

Nuka Gemmell has been sentenced for aggravated robbery and kidnapping offences. The defendant and his co-offender, Manawanui Te Pou, kidnapped and robbed a courier driver. The defendant had pleaded guilty to both charges. The legal issues that the court had to decide included determining an appropriate starting point for sentencing, considering whether to uplift the starting point for the defendant's prior offending, and deciding the appropriate discounts for the defendant's guilty pleas, time spent on bail, personal and cultural factors, remorse, and prospects of rehabilitation. The court decided on a starting point of four and a half years' imprisonment for the aggravated robbery and uplifted it by 18 months for the kidnapping, resulting in a total starting point of six years. The court decided not to uplift the starting point for the defendant's previous convictions as it was considered to be embodied within the provisions of the Sentencing Act that would apply to the sentence imposed. The court decided on a 10% discount for the defendant's guilty pleas, 10% discount for personal and cultural factors, and a further 10% discount for the defendant's remorse and prospects of rehabilitation. The court imposed a final sentence of four years and two months' imprisonment to be served concurrently for both offences, and ordered that the defendant serve the full term of the sentence imposed without parole. The court also issued a Stage 2 warning to the defendant regarding the consequences of committing any further serious violent offence.

Orders