R v Gemmell
[2022] NZHC 928
•4 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-090-005558
CRI-2019-090-005498 [2022] NZHC 928
THE QUEEN V
NUKA GEMMELL ALSO KNOWN AS NUKU GEMMELL
Hearing: 3 May 2022 Appearances:
D A McGivern for Crown
J S Kovacevich for Defendant
Judgment:
4 May 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 4 May 2022 at 3:00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
R v GEMMELL [2022] NZHC 928 [4 May 2022]
Introduction
[1] The defendant, Mr Nuka Gemmell (Mr Gemmell), having entered pleas of guilty is to be sentenced on 10 May 2022 on one charge of aggravated robbery and one charge of kidnapping.
[2] While admitting the offences, Mr Gemmell says that they were committed in circumstances of compulsion in which he had been threatened by his co-defendant Mr Manawanui Te Pou (Mr Te Pou) that he would be killed if he did not carry out Mr Te Pou’s instructions to assist him to commit the aggravated robbery and kidnapping that took place on 18 November 2019. Although a defence of compulsion is not available to Mr Gemmell on either of the charges,1 he nevertheless maintains that the fact that he committed the offences under compulsion and threats made by his co-defendant is a mitigating factor that should be recognised and taken into account in relation to the sentence to be imposed.
[3] The Crown disputes Mr Gemmell’s claim that he committed the offences in circumstances in which he was acting under compulsion or threats made to him by Mr Te Pou, and consequently a proof of facts hearing pursuant to s 24(2) of the Sentencing Act 2002 was held on 3 May 2022 to determine the disputed factual issue.
The evidence
Statement of agreed facts
[4] The Crown and defence have filed a Statement of Agreed Facts for the purposes of the proof of facts hearing. The statement records their agreement regarding four CCTV recordings which show Mr Gemmell in the course of the events of the offending. The CCTV images relate to:
(a)The Caltex Te Atatu South service station forecourt on 18 November 2019 between 2.35 pm and 2.39 pm.
1 Crimes Act 1961, s 24(2)(j) and (l).
(b)The driveway entrance at 100 Glen Road Rānui on 18 November 2019 between 3.48 pm and 3.51 pm.
(c)The entrance to the Fresh Choice Supermarket at Rānui on 18 November 2019 between 3.50 pm and 3.53 pm.
(d)The interior and customer counters of the Westpac Bank Lincoln North Centre, Henderson, on 18 November 2019.
Mr Gemmell
[5] Mr Gemmell gave evidence in chief and was cross-examined. He gave evidence that he had first met Mr Te Pou through Mr Te Pou’s visits to his brother which occurred on three or four occasions over a period of two weeks prior to 18 November 2019. He said that on the morning of 18 November 2019 he had left the house to go to the bus stop and Mr Te Pou arrived outside his address driving a white Hyundai vehicle, screamed to a stop, and told him to get in. Mr Gemmell said that Mr Te Pou told him to “ride or die”. Mr Gemmell said that Mr Te Pou appeared “scary” and “drugged up”.
[6] Mr Gemmell said that Mr Te Pou then drove him to a few places including to one of Mr Te Pou’s friend’s place where Mr Te Pou and his friend smoked methamphetamine. He was then taken by Mr Te Pou to an address in Massey where Mr Te Pou got out of the Hyundai and made him wait while he went in. While Mr Te Pou was away Mr Gemmell said that he was approached by two men and that a gun was held to his head and he was asked why he was there. He said that these men strip searched him and threatened him that if he did not rob a jewellery store they would kill him. However Mr Te Pou returned and they then drove to a service station where Mr Te Pou told him to put petrol in the vehicle, saying that he would kill him if he did not follow his instructions.
[7] Mr Gemmell said that Mr Te Pou then drove to a dairy where there was a milk truck parked outside. He said that Mr Te Pou told him to go and steal something from the milk truck. He said that he went to the milk truck but there was nothing worth taking and when he returned and told Mr Te Pou that there was nothing to take, he was
told to go back again and get something or he would kill him, so he went and took a printer.
[8] Mr Gemmell said that when they drove away he asked Mr Te Pou to drop him off so that he could go and see his children, but that Mr Te Pou ignored his request and was swerving the vehicle dangerously. He said that as they were driving they saw a courier van and Mr Te Pou told him that he wanted him to steal it. Mr Gemmell said that when Mr Te Pou stopped the Hyundai behind the courier van he got out and went to speak to the driver. He said he told him that the “boss wants his van back”. When the courier driver said it was his van, he went back and told Mr Te Pou what he had said. He said Mr Te Pou then sent him back to the courier van and while he was talking to the driver, Mr Te Pou came and smashed the window of the van and dragged the driver out and pushed him into the Hyundai. He said that Mr Te Pou told him to get into and drive the courier van and not to try to drive away or he would swerve him off the road.
[9] Mr Gemmell said that they then drove to an address in Rānui Road where he left the courier van and got into the back seat of the Hyundai. Mr Te Pou was driving and the courier driver was sitting in the front passenger seat. Mr Gemmell said that he could not get out of the back seat of the Hyundai as Mr Te Pou had engaged the child locks on the rear doors. He said that Mr Te Pou then drove to an ATM machine where he unsuccessfully tried to use the courier driver’s bank card and PIN number to access money from his account. When this was unsuccessful Mr Te Pou drove to the Westpac bank in Lincoln Road Henderson and Mr Te Pou instructed the courier driver to go into the bank and withdraw $100.
[10] Mr Gemmell said that Mr Te Pou became worried that the courier driver would run away and so told Mr Gemmell to go into the bank, warning him not to try to run away either. He said that after the courier driver had withdrawn the $100 from the bank and returned to the Hyundai with it, Mr Te Pou asked them if they were hungry and had driven to a Kentucky Fried Chicken store and purchased some food. Mr Te Pou then drove to a TAB shop and Mr Gemmell said that he and the courier driver were made to wait in the vehicle while Mr Te Pou went into the TAB.
[11] Mr Gemmell said that when Mr Te Pou returned he drove them to an address where he made them take a barbeque and put it in the van. He said they then drove back to Glen Road where they collected the van and put all of the packages in the van into the Hyundai. Mr Gemmell said that Mr Te Pou then made him follow him in the van as he drove to a Kingsland address where they unloaded the barbeque and the packages at Mr Te Pou’s mother’s address. He said that Mr Te Pou then gave the courier driver the keys to his van and returned his wallet. He explained that although he could have, he did not run away or drive away at any stage during these events because Mr Te Pou had told him that if he did not do as he was told he would kill him and that he had repeated the threat several time during the course of the events.
[12] Under cross-examination Mr Gemmell accepted that he did not appear to be stressed in any of the images of him recorded by the CCTV cameras. He explained that although the CCTV recording from the Caltex service station shows him to be dancing, smiling, and appearing to be enjoying himself, he was stressed in his mind, and was putting on an act to make Mr Te Pou think that he was doing a good job.
[13] In relation to the CCTV recording at the Glen Road address where the courier driver was assaulted and kidnapped, Mr Gemmell accepted that he was the male wearing a black hoodie with the hood up over his head and that he had played a role in overcoming the driver. He said he had been shocked to see the CCTV when it was played in Court as he did not think that he had touched the courier driver at any stage, although the CCTV shows that he did. He also accepted that when Mr Te Pou was engaged in dragging the courier driver away from his van and into the Hyundai, Mr Gemmell was already in the courier van. He accepted that at that stage it was open to him to drive away in the van to get help, but said he did not because Mr Te Pou had previously given him an instruction not to run away.
[14] As regards the CCTV images from outside the Fresh Choice Supermarket Mr Gemmell accepted that he is the man shown exiting the Hyundai and going to the ATM on the footpath near the entrance of the supermarket. He accepted that there were a number of members of the public passing by who he could have approached for help and that Mr Te Pou had remained in the Hyundai while he was at the ATM machine.
[15] In relation to the CCTV images from inside the Westpac Bank, Mr Gemmell confirms that he is shown entering the bank shortly after the courier driver and that he had stood behind the courier driver while he was at the counter. He said that he did not alert the bank staff to what was happening as he knew that Mr Te Pou was watching him and the driver from a distance. He said Mr Te Pou’s threats meant that he had no choice and had to go into the bank and do as Mr Te Pou had instructed him to do. He said he felt under Mr Te Pou’s power the whole day.
Submissions
Defendant’s submissions
[16] Mr Kovacevich submits that Mr Gemmell’s evidence establishes that he had been threatened with serious harm by Mr Te Pou, and he was under duress during the commission of the offences for which he is to be sentenced. He says that the evidence shows that Mr Te Pou was nearby at all times: he was present in the Hyundai at the Caltex service station; he was present during the assault and kidnapping of the courier driver; he was in the Hyundai nearby when Mr Gemmell was at the ATM; and he was in the Hyundai watching when Mr Gemmell and the driver were in the Westpac Bank. He submits that Mr Gemmell had a real apprehension of suffering serious harm or death and acted throughout under the pressure of Mr Te Pou’s compulsion. He submits that the compulsion and its effect on Mr Gemmell which resulted in his participation in the offending, is a mitigating factor that ought to be recognised at his sentencing.
Crown submissions
[17] Mr McGivern submits that apart from Mr Gemmell’s own evidence, there is no evidence to indicate that he was pressured by Mr Te Pou to participate in the offending. He submits that the only independent and reliable evidence is that provided by the CCTV recordings in which Mr Gemmell appears to be relaxed and not showing any signs of stress. He submits that his demeanour is apparent from his smiling and dancing when at the Caltex service station. He notes that Mr Gemmell is seen in the CCTV images of the assault and kidnapping as being actively involved with no sign of any reluctance. He says that during the course of the events there were a number of opportunities for Mr Gemmell to escape and get away from Mr Te Pou. He submits
that there was no compulsion and there is no basis to reduce Mr Gemmell’s sentence on account of that factor.
Discussion
[18] Having reviewed the four CCTV recordings I find that it is quite clear that Mr Gemmell was an active and willing participant throughout all of the activities recorded on the CCTV. While at the Caltex service station and contrary to his evidence that he had already been threatened by Mr Te Pou that he would be killed if he did not co-operate with him and do as he was told, Mr Gemmell appears particularly relaxed. He appears to be smiling towards the CCTV camera and was dancing while standing beside the car filling it with petrol. If he had been threatened that he would be killed and he had believed that the threat was real as he claims, behaviour of the kind recorded on the CCTV would simply not have happened.
[19] There was an ideal opportunity while Mr Te Pou was seated in the Hyundai and Mr Gemmell was out of the vehicle for Mr Gemmell to slip away if he had wanted to. At that stage according to him he had already been threatened and apart from getting petrol without intending to pay for it nothing more serious had happened. However rather than take the opportunity to dissociate himself from whatever Mr Te Pou was intending to do, he is seen in the CCTV images appearing relaxed and after a period of several minutes during which he was out of the vehicle, getting back into it and being driven away by Mr Te Pou.
[20] In the CCTV images of the assault and kidnapping of the courier driver, Mr Gemmell can be seen approaching the driver with the hood of his hoodie up over his head, and then wrestling briefly with the driver in an apparent attempt to take a parcel from him. When he returns to the courier van shortly after apparently conferring with Mr Te Pou, Mr Gemmell is obviously actively involved in the enterprise and when Mr Te Pou broke one of the van windows and dragged the driver out of his van and over to the Hyundai, Mr Gemmell was immediately inside the van and in the driver’s seat ready to drive away. When Mr Te Pou drove off in the Hyundai taking the courier driver with him, Mr Gemmell immediately followed in the courier van. I agree with the Crown submission that this was another obvious opportunity for
Mr Gemmel to drive away and report the matter to the Police and get help. His explanation that he did not do that because Mr Te Pou had said that if he did he would follow him and run him off the road is entirely implausible, and I reject it. His action of following closely behind in the courier van when Mr Te Pou departed in the Hyundai is another example in the evidence which clearly shows that Mr Gemmell was an active and willing participant in the criminal enterprise.
[21] The CCTV images from outside the Fresh Choice Supermarket and from the interior of the Westpac Bank similarly show Mr Gemmell’s active participation in the offending. In both cases Mr Te Pou was not standing over him or even close by. In both instances Mr Te Pou had remained at a distance in the parked Hyundai vehicle and it would have been a simple matter for Mr Gemmell to move away and cease having any further involvement. However instead of removing himself from the scene and the offending he continued to play his part in the criminal enterprise.
[22] For these reasons I reject Mr Gemmell’s evidence and his wholly implausible claim that he acted out of compulsion at any stage during the offending for which he is charged. I am satisfied that the Crown has negated beyond a reasonable doubt Mr Gemmell’s claim that he acted throughout the course of the offending under the compulsion of Mr Te Pou.2
[23] I accordingly find that there is no basis for compulsion to be taken into account as a mitigating factor at Mr Gemmell’s sentencing on the charges.
Paul Davison J
2 Sentencing Act 2002, s 24(2)(c).
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