R v Gemmell - [2022] NZHC 928

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…

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 928
Case: [2022] NZHC 928
Decision Date: 4 May 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Nuka Gemmell, also known as Nuku Gemmell, is facing sentencing on charges of aggravated robbery and kidnapping. Gemmell has pleaded guilty to the charges but contends that his actions were compelled by threats from his co-defendant, Manawanui Te Pou, who allegedly threatened to kill him if he did not participate in the crimes. Despite the inadmissibility of a compulsion defence, Gemmell argues that his participation under duress should be considered as a mitigating factor in his sentencing. The Crown, however, disputes this claim and argues that Gemmell's behaviour, as captured in CCTV footage, does not reflect duress but rather active and willing participation in the criminal activities.

The central legal issue before the court was whether Gemmell's actions were indeed compelled by threats from Te Pou, or if he was an active participant in the offences. This determination was crucial as it would influence the sentencing considerations, particularly whether compulsion could be treated as a mitigating factor.

The court reviewed the CCTV footage and Gemmell's testimony, finding that the footage depicted Gemmell as relaxed and even jovial during parts of the offending, which contradicted his claims of duress. The court noted that Gemmell had multiple opportunities to dissociate himself from the crimes but chose not to, further indicating his active participation. The court concluded that Gemmell's claim of compulsion was implausible and rejected it, finding no basis for considering compulsion as a mitigating factor in his sentencing.

The court's judgment, delivered on 4 May 2022, firmly established that Gemmell was not acting under compulsion but was an active participant in the crimes. Consequently, the court ruled that there was no basis for reducing Gemmell's sentence on the grounds of compulsion. The final sentencing hearing was scheduled for 10 May 2022.

Orders