R v GEMMELL [2022] NZHC 928

R v GEMMELL [2022] NZHC 928 [4 May 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-090-005558CRI-2019-090-005498[2022] NZHC 928THE QUEENVNUKA GEMMELL ALSO KNOWN AS NUKU GEMMELLHearing: 3 May 2022Appearances: D A McGivern for CrownJ S Kovacevich for DefendantJudgment: 4 May 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 4 May 2022 at 3:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] The defendant, Mr Nuka Gemmell (Mr Gemmell), having entered pleas ofguilty is to be sentenced on 10 May 2022 on one charge of aggravated robbery andone charge of kidnapping.[2] While admitting the offences, Mr Gemmell says that they were committed incircumstances of compulsion in which he had been threatened by his co-defendantMr Manawanui Te Pou (Mr Te Pou) that he would be killed if he did not carry outMr Te Pou's instructions to assist him to commit the aggravated robbery andkidnapping that took place on 18 November 2019. Although a defence of compulsionis not available to Mr Gemmell on either of the charges,1 he nevertheless maintainsthat the fact that he committed the offences under compulsion and threats made by hisco-defendant is a mitigating factor that should be recognised and taken into accountin relation to the sentence to be imposed.[3] The Crown disputes Mr Gemmell's claim that he committed the offences incircumstances in which he was acting under compulsion or threats made to him byMr Te Pou, and consequently a proof of facts hearing pursuant to s 24(2) of theSentencing Act 2002 was held on 3 May 2022 to determine the disputed factual issue.The evidenceStatement of agreed facts[4] The Crown and defence have filed a Statement of Agreed Facts for thepurposes of the proof of facts hearing. The statement records their agreementregarding four CCTV recordings which show Mr Gemmell in the course of the eventsof the offending. The CCTV images relate to:(a) The Caltex Te Atatu South service station forecourt on 18 November2019 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 2019between 3.48 pm and 3.51 pm.(c) The entrance to the Fresh Choice Supermarket at Rānui on18 November 2019 between 3.50 pm and 3.53 pm.(d) The interior and customer counters of the Westpac Bank Lincoln NorthCentre, Henderson, on 18 November 2019.Mr Gemmell[5] Mr Gemmell gave evidence in chief and was cross-examined. He gaveevidence that he had first met Mr Te Pou through Mr Te Pou's visits to his brotherwhich occurred on three or four occasions over a period of two weeks prior to18 November 2019. He said that on the morning of 18 November 2019 he had left thehouse to go to the bus stop and Mr Te Pou arrived outside his address driving a whiteHyundai vehicle, screamed to a stop, and told him to get in. Mr Gemmell said thatMr 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 toone of Mr Te Pou's friend's place where Mr Te Pou and his friend smokedmethamphetamine. He was then taken by Mr Te Pou to an address in Massey whereMr Te Pou got out of the Hyundai and made him wait while he went in. WhileMr Te Pou was away Mr Gemmell said that he was approached by two men and thata gun was held to his head and he was asked why he was there. He said that these menstrip searched him and threatened him that if he did not rob a jewellery store theywould kill him. However Mr Te Pou returned and they then drove to a service stationwhere Mr Te Pou told him to put petrol in the vehicle, saying that he would kill him ifhe did not follow his instructions.[7] Mr Gemmell said that Mr Te Pou then drove to a dairy where there was a milktruck parked outside. He said that Mr Te Pou told him to go and steal something fromthe milk truck. He said that he went to the milk truck but there was nothing worthtaking and when he returned and told Mr Te Pou that there was nothing to take, he wastold to go back again and get something or he would kill him, so he went and took aprinter.[8] Mr Gemmell said that when they drove away he asked Mr Te Pou to drop himoff so that he could go and see his children, but that Mr Te Pou ignored his request andwas swerving the vehicle dangerously. He said that as they were driving they saw acourier van and Mr Te Pou told him that he wanted him to steal it. Mr Gemmell saidthat when Mr Te Pou stopped the Hyundai behind the courier van he got out and wentto speak to the driver. He said he told him that the "boss wants his van back". Whenthe courier driver said it was his van, he went back and told Mr Te Pou what he hadsaid. He said Mr Te Pou then sent him back to the courier van and while he was talkingto the driver, Mr Te Pou came and smashed the window of the van and dragged thedriver out and pushed him into the Hyundai. He said that Mr Te Pou told him to getinto and drive the courier van and not to try to drive away or he would swerve him offthe road.[9] Mr Gemmell said that they then drove to an address in Rānui Road where heleft the courier van and got into the back seat of the Hyundai. Mr Te Pou was drivingand the courier driver was sitting in the front passenger seat. Mr Gemmell said thathe could not get out of the back seat of the Hyundai as Mr Te Pou had engaged thechild locks on the rear doors. He said that Mr Te Pou then drove to an ATM machinewhere he unsuccessfully tried to use the courier driver's bank card and PIN number toaccess money from his account. When this was unsuccessful Mr Te Pou drove to theWestpac bank in Lincoln Road Henderson and Mr Te Pou instructed the courier driverto go into the bank and withdraw $100.[10] Mr Gemmell said that Mr Te Pou became worried that the courier driver wouldrun away and so told Mr Gemmell to go into the bank, warning him not to try to runaway either. He said that after the courier driver had withdrawn the $100 from thebank and returned to the Hyundai with it, Mr Te Pou asked them if they were hungryand 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 courierdriver 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 addresswhere he made them take a barbeque and put it in the van. He said they then droveback to Glen Road where they collected the van and put all of the packages in the vaninto the Hyundai. Mr Gemmell said that Mr Te Pou then made him follow him in thevan as he drove to a Kingsland address where they unloaded the barbeque and thepackages at Mr Te Pou's mother's address. He said that Mr Te Pou then gave thecourier driver the keys to his van and returned his wallet. He explained that althoughhe could have, he did not run away or drive away at any stage during these eventsbecause Mr Te Pou had told him that if he did not do as he was told he would kill himand 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 bestressed in any of the images of him recorded by the CCTV cameras. He explainedthat although the CCTV recording from the Caltex service station shows him to bedancing, 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 courierdriver was assaulted and kidnapped, Mr Gemmell accepted that he was the malewearing a black hoodie with the hood up over his head and that he had played a rolein overcoming the driver. He said he had been shocked to see the CCTV when it wasplayed 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 wasengaged 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 opento him to drive away in the van to get help, but said he did not because Mr Te Pou hadpreviously given him an instruction not to run away.[14] As regards the CCTV images from outside the Fresh Choice SupermarketMr Gemmell accepted that he is the man shown exiting the Hyundai and going to theATM on the footpath near the entrance of the supermarket. He accepted that therewere a number of members of the public passing by who he could have approachedfor help and that Mr Te Pou had remained in the Hyundai while he was at the ATMmachine.[15] In relation to the CCTV images from inside the Westpac Bank, Mr Gemmellconfirms that he is shown entering the bank shortly after the courier driver and that hehad stood behind the courier driver while he was at the counter. He said that he didnot alert the bank staff to what was happening as he knew that Mr Te Pou was watchinghim and the driver from a distance. He said Mr Te Pou's threats meant that he had nochoice and had to go into the bank and do as Mr Te Pou had instructed him to do. Hesaid he felt under Mr Te Pou's power the whole day.SubmissionsDefendant's submissions[16] Mr Kovacevich submits that Mr Gemmell's evidence establishes that he hadbeen threatened with serious harm by Mr Te Pou, and he was under duress during thecommission of the offences for which he is to be sentenced. He says that the evidenceshows that Mr Te Pou was nearby at all times: he was present in the Hyundai at theCaltex service station; he was present during the assault and kidnapping of the courierdriver; he was in the Hyundai nearby when Mr Gemmell was at the ATM; and he wasin 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 ordeath and acted throughout under the pressure of Mr Te Pou's compulsion. He submitsthat the compulsion and its effect on Mr Gemmell which resulted in his participationin 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 isno evidence to indicate that he was pressured by Mr Te Pou to participate in theoffending. He submits that the only independent and reliable evidence is that providedby the CCTV recordings in which Mr Gemmell appears to be relaxed and not showingany signs of stress. He submits that his demeanour is apparent from his smiling anddancing when at the Caltex service station. He notes that Mr Gemmell is seen in theCCTV images of the assault and kidnapping as being actively involved with no signof any reluctance. He says that during the course of the events there were a numberof opportunities for Mr Gemmell to escape and get away from Mr Te Pou. He submitsthat there was no compulsion and there is no basis to reduce Mr Gemmell's sentenceon account of that factor.Discussion[18] Having reviewed the four CCTV recordings I find that it is quite clear thatMr Gemmell was an active and willing participant throughout all of the activitiesrecorded on the CCTV. While at the Caltex service station and contrary to his evidencethat he had already been threatened by Mr Te Pou that he would be killed if he did notco-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 standingbeside the car filling it with petrol. If he had been threatened that he would be killedand he had believed that the threat was real as he claims, behaviour of the kindrecorded on the CCTV would simply not have happened.[19] There was an ideal opportunity while Mr Te Pou was seated in the Hyundaiand Mr Gemmell was out of the vehicle for Mr Gemmell to slip away if he had wantedto. At that stage according to him he had already been threatened and apart fromgetting petrol without intending to pay for it nothing more serious had happened.However rather than take the opportunity to dissociate himself from whateverMr Te Pou was intending to do, he is seen in the CCTV images appearing relaxed andafter a period of several minutes during which he was out of the vehicle, getting backinto 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 overhis head, and then wrestling briefly with the driver in an apparent attempt to take aparcel from him. When he returns to the courier van shortly after apparentlyconferring with Mr Te Pou, Mr Gemmell is obviously actively involved in theenterprise and when Mr Te Pou broke one of the van windows and dragged the driverout of his van and over to the Hyundai, Mr Gemmell was immediately inside the vanand in the driver's seat ready to drive away. When Mr Te Pou drove off in the Hyundaitaking the courier driver with him, Mr Gemmell immediately followed in the couriervan. I agree with the Crown submission that this was another obvious opportunity forMr Gemmel to drive away and report the matter to the Police and get help. Hisexplanation that he did not do that because Mr Te Pou had said that if he did he wouldfollow him and run him off the road is entirely implausible, and I reject it. His actionof following closely behind in the courier van when Mr Te Pou departed in theHyundai is another example in the evidence which clearly shows that Mr Gemmellwas an active and willing participant in the criminal enterprise.[21] The CCTV images from outside the Fresh Choice Supermarket and from theinterior of the Westpac Bank similarly show Mr Gemmell's active participation in theoffending. In both cases Mr Te Pou was not standing over him or even close by. Inboth instances Mr Te Pou had remained at a distance in the parked Hyundai vehicleand it would have been a simple matter for Mr Gemmell to move away and ceasehaving any further involvement. However instead of removing himself from the sceneand 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 implausibleclaim that he acted out of compulsion at any stage during the offending for which heis charged. I am satisfied that the Crown has negated beyond a reasonable doubtMr Gemmell's claim that he acted throughout the course of the offending under thecompulsion of Mr Te Pou.2[23] I accordingly find that there is no basis for compulsion to be taken into accountas a mitigating factor at Mr Gemmell's sentencing on the charges._____________Paul Davison J2 Sentencing Act 2002, s 24(2)(c).